[Abstract] "Spring and Autumn Judgment" is a special trial method that began in the Han Dynasty and ended in the Sui and Tang Dynasties. Its basic principle is "original conviction". "Spring and Autumn Judgment" advocates using Confucian classics as the basis and symbol for judging cases.

Marking the Confucianization of the feudal legal system.

[Keywords] "Spring and Autumn Judgment", the original intention was convicted, the relative was forced to hide his head, the origin and influence of "Spring and Autumn Judgment"

As the core of feudal ruling thought, Confucianism has a profound impact on China's entire feudal legal system and even the Chinese legal system. Among them, the "Spring and Autumn Judgment", which uses the Confucian classic "Spring and Autumn" as the basis for deciding cases, has a profound impact on the Chinese legal system

The most profound, and later generations have also studied the "Spring and Autumn Judgment" the most in-depth. This article gives a brief opinion on the origin and influence of the "Spring and Autumn Judgment" in order to seek advice from the Fang family.

The Qin Dynasty, with Legalism as its ruling ideology, implemented a strict torture system. During the reign of Emperor Qin II, the harsh punishments became particularly cruel, so much so that "the garrison soldiers screamed, and the letter was lifted".

The rulers of the early Han Dynasty learned the historical lessons of the death of the second generation of the Qin Dynasty. In 206 BC, after Liu Bang conquered Xianyang, he announced the abolition of the Qin Dynasty's harsh laws and maintained order with three chapters of the law. In the 70th year of the early Han Dynasty, "rest with the people"

", "Leave penalties", the country has accumulated a lot of wealth, people's lives are prosperous, and productivity has been greatly developed. At this time, the ruling ideology of the superstructure - Huang Lao's thought, was increasingly unable to adapt to society.

With the development of the feudal system, the rulers urgently needed a political and ideological line that was compatible with the progressive development of the feudal system and in line with the long-term interests of the feudal landlord class.

After Liu Che, Emperor Wu of the Han Dynasty, came to the throne in 140 BC, he was determined to update Huang Lao's thoughts and explore new ways of governing the country. In the process of selecting talents for governing the country, the Confucian master Dong Zhongshu used "the meaning of "Spring and Autumn" to unify"1

, which was highly appreciated by Emperor Wu of the Han Dynasty. Since then, Confucianism has gradually become the official orthodoxy. As Confucianism became orthodox, Dong Zhongshu and others advocated using Confucian classics such as "Spring and Autumn" as the guiding ideology for judicial trials.

If there are no provisions in the law, the Confucian classics will be used as the basis for judgment. If the legal provisions are contrary to the Confucian classics, the Confucian classics will have the highest validity and the current law. "Jiaodong Prime Minister Dong Zhongshu became old and ill and became an official, and the court had political discussions every time.

, sent Zhang Tang several times, went to the back alleys personally, and asked about his gains and losses." 2 In the early Han Dynasty, most laws inherited the cruel laws of the Qin Dynasty, and many regulations were incompatible with the social conditions at that time, which to a certain extent hindered the development of society.

The "Spring and Autumn Judgment", which uses Confucian classics as the basis for deciding cases, undoubtedly makes up for this shortcoming.

"Spring and Autumn Judgment" was a method used by rulers after the mid-Han Dynasty to combine Confucian classics with the legal system and promote the Confucianization of law. 3

"Conviction from the original heart" and "the Prime Minister's head is concealed after a close relationship" are the two important principles of "Spring and Autumn Judgment".

(1) "Conviction from the original intention"

Dong Zhongshu once said: "In the Spring and Autumn period, when you listen to prison, you must be based on your own affairs and your ambitions. Those who have evil ambitions will not wait until they are realized. Those who are the most evil will be guilty of particularly serious crimes, and those who are straightforward will be judged." 4 That is, the perpetrators should be investigated based on the facts of the case.

Motive; if the criminal's subjective motivation conforms to the Confucian spirit of "loyalty" and "filial piety", even if his behavior constitutes social harm, the penalty can be reduced or reduced. On the contrary, if the criminal's subjective motivation seriously violates the spirit advocated by Confucianism, even if it does not constitute social harm,

The crime must also be determined to be severely punished. There are two such cases in "Taiping Preview", which embody the basic principle of "conviction from the heart". Case 1: A son accidentally hurts his father. "Father A, B, and C are arguing.

C stabs B with a saber. A then strikes C and inadvertently injures B. What should A do? Or, if he hits his father, he should act like an owl. The argument goes: I foolishly think that father and son are close relatives. When they hear about their fight, everyone will be frightened.

, helping him to save him is not because he wants to criticize his father. The meaning of "Spring and Autumn Annals" is that it is allowed to cure his father's illness and give medicine to his father who died. A gentleman's original intention is to forgive but not to kill. The law of Jia Fei said that beating the father is inappropriate.

"Sit down." Judgment 2: Husband A died and remarried. "Husband A and B were sailing the boat when the sea was full of wind. The boat was drowned and drowned. He died and could not be buried. In April, A's mother B will marry A. What do you want to say? Or:

Husband Jia died without being buried, so there is no way to marry him. If he wants to be a wife for himself, he should give up the market. The argument is: I foolishly think that the meaning of "Spring and Autumn" means that the wife returns to Qi, and that the husband dies without a son, so there is a way to remarry.

.A woman is not arbitrary and can act arbitrarily. She is obedient and obedient, and the one who marries her will return home. A is also married to an honorable man. She has no lustful intentions and is not a private wife. She knows how to decide things and is not guilty, so she should not sit down.

"5

"Intentional conviction" pays more attention to subjective motives, which is a great improvement compared with the principle of result responsibility. However, because "Confucian classics are profound in meaning, general in content, and even inconsistent"6, therefore, the case is decided based on "Spring and Autumn".

In fact, it is based on the subjective assumptions of judicial officials, which increases the corruption of the judiciary. Judicial officials and even rulers can misinterpret Confucian classics and meanings according to their own needs for governance, but cannot truly achieve "the original intention."

”, causing unjust, false and wrong cases to occur frequently. Liu Shipei, a master of traditional Chinese culture, once said, “It is called using classics to resolve prisons, but in fact it is convenient for cruel officials to dance with prose.” 7.

2) Kissing makes the Prime Minister hide

"In the fourth year of the Dijie Festival of Emperor Xuan of the Han Dynasty, Emperor Xuan issued an edict: The relationship between father and son, the way between husband and wife, is the nature of nature. Although there are disasters, it survives death. Sincere love is knotted in the heart, and it is so benevolent that it cannot be violated.

?From now on, if a son hides his parents, his wife hides her husband, and a grandson hides his elder parents, it will not be a crime. If his parents hide his son, his wife hides her husband, and his elder parents hide their grandson, the crime is death. All of them will be invited to the imperial court to hear about it." 8 This is the general.

The concept of concealment between relatives is formally established as the principle of punishment. Hiding between relatives means that close relatives can conceal their criminal acts without being punished by law or with reduced penalties. However, crimes of rebellion, concealment and other crimes that involve the stability of feudal rule

Even if some serious crimes directly infringe on the imperial power or seriously damage the feudal ruling order, relatives still have the obligation to expose them. "The Analects of Confucius? Zilu" recorded this sentence of Confucius: "The father hides for the son, and the son hides for the father, and it has always been there.

." Based on this statement, Dong Zhongshu concluded a classic case: the father hides for the son. "A has no children, he picks up son B by the roadside, and raises him as his own son. When he grows up, he is guilty of murder, so he uses the adverbial adverbial A, and A hides B.

.What should A say? Judgment: A has no son, revive and support B. Although he is not born, who will change him. "Poetry" says: The moth has a son, the dragonfly wins and loses. "Spring and Autumn" means, the father is

The son hides, the son hides for the father, A should hide B. It is not appropriate to sit down." 9

Compared with the strict rules of Legalism, no respect for human feelings, and the principle of responsibility for results, "hiding relatives from each other reflects the care for human nature." From the perspective of Confucianism, family affection is the primary meaning of human nature, and the relationship between relatives

Love is the simplest emotion in the world, and actions based on this love should be tolerated and encouraged by the law. This Confucian thought is undoubtedly a comfort to the rulers of the newly established feudal dynasty of the Han Dynasty.

A powerful tool for the tortured people in the Qin Dynasty. "Only laws based on human nature can be essentially reasonable and inspire the public to have faith in the law." 10

Judging from the above two principles, "Spring and Autumn Judgment" is helpful to reduce punishment and alleviate social class conflicts. "According to historical records, those who used "Spring and Autumn Judgment" in the Han Dynasty were obliged to forgive." 11 From

Judging from all the "Spring and Autumn Judgments", except for those cases that violated imperial power, the rest of the cases were given lighter punishments. This eased class conflicts to a great extent. As He said: "Taking leniency as the rule"

, the case of injustice is judged according to the meaning of "Spring and Autumn", so there is no complaint in the county." 12

"Spring and Autumn Judgment" promoted the improvement of the theory of crime composition in ancient China. The basic spirit of "Spring and Autumn Judgment", "original conviction", emphasizes conviction and sentencing based on subjective factors such as criminal motivation, purpose, and mentality. "Original Conviction"

Although the subjective psychology of the criminal is used as the objective basis for judging the case, it pays attention to the subjective aspects of the crime. It is much better than simply or even blindly convicting people in accordance with the law. This has a negative impact on the entire feudal legal system of China.

Progress has an important impact and positive promotion effect.

The "Spring and Autumn Judgment" made up for the shortcomings of written laws. In the early Han Dynasty, because the laws mostly inherited the cruel laws of the Qin Dynasty, many provisions of Han law did not meet the rulers and people's general desire for light punishment. The "Spring and Autumn Judgment" was precisely

"The Confucian idea of ​​"benevolence" was used to eliminate the cruelty of Han law." 13 "Conviction of the original intention" and "the Prime Minister's privacy must be concealed by relatives" are two important principles of the "Spring and Autumn Judgment", which are related to the entire feudal legal system.

The influence has been far-reaching and is even reflected in modern judicial practice. The study of "Spring and Autumn Judgment" will help us gain a deeper understanding of the formation and development of China's feudal legal system.

The important role of "Spring and Autumn Period" in "introducing rituals into laws"

In the process of its development, the law needs to be constantly transformed and improved in order to achieve its greatest social effect. At this point, the legal reform in ancient China is very prominent. "Introducing rituals into the law" is a significant step that began in the early days of feudal society.

The process of reforming legal activities extended to the prosperous Tang Dynasty, and its influence extended to the Ming and Qing Dynasties. It also built the basic system of traditional Chinese legal system and forged the life spirit of the Chinese legal system. And the true meaning of this process is

The beginning was the "Spring and Autumn Jue Jie" that emerged in the early Han Dynasty. The "Spring and Autumn Jue Jie" formally started the process of integrating etiquette and law in history. Its great value is as follows: first, it penetrates the spirit of etiquette into judicial practice and uses etiquette as a guide.

Punishment uses etiquette to guide the operation of the law, and etiquette thus becomes the life and soul of the law; second, the content of etiquette is gradually transformed into legal provisions, which are stipulated in the code and the law. Not only that, the "Spring and Autumn Jue Jie" also shapes the

The basic character of the entire traditional law - the characteristic of "ethical law". It can be seen that the "Spring and Autumn Judgment" played an extremely important role in the influence of Confucianism on the entire traditional legal system.

Successful Practice of “Case Law”

Ancient China followed statutory law, but statutory law also had its shortcomings, and legal "blind spots" inevitably appeared in judicial trials. In order to solve the problem of "blind spots", moderate creation and use of "case law" is an ideal measure. In ancient China,

In terms of creating and applying case law, the "Spring and Autumn Judgment" of the Han Dynasty is worthy of being a successful example. There are generally several forms of creation of "case law": "cases arise from righteousness", "cases arise from cases", "cases arise from law"

"Rules arise out of righteousness" and "rules arise out of customs", etc. "Chunqiu Jue Jie" is a typical form of "legislation arises out of righteousness". Dong Zhongshu relied on Confucian legal consciousness and principles when there was no express provision in the law.

To create precedents based on them, that is, to create precedents based on the "small words and great meanings" of "Spring and Autumn", such as "the original intention is to judge the crime", "the father and the son hide each other", "the king has no generals", "to make up for the mistakes with merit", "the king has no outsiders",

"An evildoer shall stop his own conduct", "A child who is no longer worthy of propriety is not a child", etc. This kind of jurisprudence created out of righteousness was relatively well in line with the legal thoughts and legal policies of the ruling class at the time, so it was more widely applicable to judicial practice.

In the field of trial, its progressive role is mainly reflected in two aspects: First, it makes up for the shortcomings of legal norms during the legal reform. As a more applicable auxiliary legal norm to judge cases, especially when judging difficult cases, it has a positive and

Second, it suppressed to a certain extent the indiscriminate torture and killing of cruel officials and the behavior of "criminal offenses against people". During the Han Dynasty, cruel officials took advantage of the imperfection of the legal system and the incompleteness of legal content to harm the law and use cruel torture.

The phenomenon is quite common. Often, dozens of people are judged in one case and "redirected and connected". One person commits a crime and ten families run away. The state is horrified. As revealed in "Salt and Iron Theory": "Now the son will kill the father;

If a younger brother kills an older brother, relatives sit next to each other, even if they are linked to each other, if the roots are connected to the flower leaves, the little finger will be injured and the four bodies will be injured. In this way, the guilty will be punished for the innocent, and the innocent will be few." Because Confucianism was affirmed.

After becoming the guiding ideology of the law, it advocated judicial leniency and advocated morality as the mainstay and punishment as auxiliary, which profoundly affected the implementation of the law, thus making the jurisprudence created based on the righteousness of "Spring and Autumn" exert certain restraints and restraints on the evil behavior of cruel officials.

effect.

Perfection of Judgment Thoughts

The trial of a case must not only clarify the facts of the crime, but also explore the true motives of the perpetrator. Only by implementing the principle of combining "objective guilt" and "subjective guilt" can we correctly convict and sentence. Any separate "objective guilt" or "subjective guilt"

Trial ideas and methods that ignore other aspects of the crime are biased and harmful. In the Qin Dynasty, which was famous for its harsh laws, the judicial principle of "objective guilt" was pursued. For example, the Qin Code stipulated that "slave

"The crime of concubine stealing the master" is more serious than the crime of general theft. So, should the parents of the master of theft be punished according to the "theft theory" or the general crime of theft? According to the Qin Law: "Those who live together are the masters of thieves, and those who do not live together are not the masters of thieves."

"This is a typical example of objective imputation based only on the facts and the application of the law. There are more than one or two such examples in Qin bamboo slips? Therefore, as some scholars pointed out, "In Qin's trial activities, including political crimes,

All criminal cases are based on the principle of applying the law based on the facts," and "in trial activities, the principle of applying the law based on the facts must not be violated." The social consequences of the Qin Dynasty's trial thinking and methods are

Quite seriously, when thinkers in the early Han Dynasty reflected on it, they accordingly noticed the idea and method of "subjective attribution of blame." The application of principles such as "original guilt" not only negated the previous dynasty's emphasis on "objective attribution of blame," but also

It also gave a new look to the judicial thinking of the Han Dynasty, allowing "subjective imputation" and "objective imputation" to be organically combined. As Dong Zhongshu said, judicial trials "must be based on the actual facts and original intentions." It can be seen that the "Spring and Autumn Judgment"

The implementation of "prison" emphasizes both the "facts" (criminal facts) and the "will" (criminal motives) in the trial, thus forming a correct trial thinking and trial policy. As for the one-sided exaggerated behavior of Huan Kuan and others

The role of people's psychological state, saying "Those who are good and violate the law will be exempted, and those who are evil but comply with the law will be punished", jumping from "objective guilt" to "subjective guilt", this cannot be attributed to Dong Zhongshu's "Spring and Autumn Judgment"

", it is just that some other thinkers went to the other extreme due to their deflected understanding of the "Spring and Autumn Period" ideological understanding.

The negative impact of "Spring and Autumn Judgment"

The above discussion summarizes the positive aspects of the "Spring and Autumn Judgment". Of course, we cannot ignore its negative effects. First, for the first time in history, examples were used to replace laws, and examples were used to break laws, destroying the seriousness of written laws.

When we believe that when statutory law is imperfect, moderate creation and use of precedents can be regarded as a legislative and judicial method worthy of recognition. It has its own positive role and affirmative value. But just as the truth is a fallacy if it goes one step further, "

If "Spring and Autumn Judgment" goes too far, it will go to its opposite, and this is also the case with historical facts. For example, Dong Zhongshu's subjective and objective method of judging crimes that "must be based on the actual facts and original intentions" is originally a

It was a very valuable ideological proposition, and it was an advanced legal thought and legal strategy at that time. However, in trial practice, when judges pushed it to the point of determining the size of the crime and the severity of the punishment based solely on "willing to be evil" and "willing to be good"

At this time, a good principle turns into an evil idea, which will inevitably lead the judicial trial astray, and finally slide into the abyss of "subjective guilt". If the judicial officer only looks at the motivation and not the facts when trying the case, then in reality,

Above all, the judicial officers ignored the law (especially when deciding on doubtful sentences), thus undermining the authority of the written code and the law. Therefore, the "Spring and Autumn Judgment" was the first in history to break the law by exception, and its historical significance

The negative impact cannot be underestimated. Secondly, it opened the door for cruel officials to indulge in frivolous crimes and arbitrarily commit crimes against others. The trend of "Junjing Jue" prevailed in the Spring and Autumn Period. Perhaps even Dong Zhongshu did not expect that it should have restrained cruel officials from committing abuses.

"Spring and Autumn Judgment", which means punishment, often evolves into a weapon for ruthless officials to act arbitrarily and kill innocent people in practice. Because of the "Spring and Autumn", which is a collection of etiquette and justice, "it is written in tens of thousands, and it refers to thousands, and all things

"Everyone gathers together and disperses", coupled with the respective annotations of later generations, make the "Spring and Autumn" even more difficult to discern the "great meaning". When making judgments based on the "Spring and Autumn", judges can often find the basis for the scriptures and meanings that meet their own needs.
Chapter completed!