After studying criminal law and civil law, many people can't help but feel like this: China's criminal law system is so developed and perfect, but the civil law is so confusing. It is not as complete as the criminal law. Why is this? We all We know that China is a country with developed written laws. The history of ancient Chinese legal codes is clear and consistent. Whether it is "Lü Xing", "Fa Jing" or "Tang Lv Shu Yi", "Song Xing Tong", etc., it can be said to be the criminal code. . Among the numerous codes, there is no civil code or code of civil nature. So was there a civil code in ancient China? If so, how did it work? If not, how did it adjust various laws in the civil field? What are the norms of social relations and how to determine their nature? With these questions in mind, I read several ancient Chinese legal codes and modern and contemporary Chinese scholars’ treatises on this aspect.

Although China has a long history of civilization that has been quite developed since ancient times, it has never developed a system of private law from its own tradition. The so-called law in China is criminal law on the one hand, and bureaucratic governance institutions on the other. The organic law is composed of administrative execution rules and penalties for violations of the rules. China's traditional legal culture can be said to be a public law culture. Although it does have provisions on civil, economic, marriage, family, litigation, etc. , but these provisions are all criminalized, and they can be classified as criminal law in nature. Public law refers to actions involving state compulsory agencies, that is, it serves the existence of the state agency itself, expands and directly implements those in accordance with the charter or tacit agreement. The purpose it applies to. It mainly adjusts the relationship between the state and the state and individuals. The two legal subjects in the field of public law (the state and the state and individuals) are unequal in status. Private law is the behavior and the coercion of the state. Institutions are not involved, but can only be regarded as behavior regulated by norms by the state's coercive agencies. It mainly adjusts the relationship between individual citizens. In essence, it is completely civil, so both parties to the legal subject (citizens and citizens or citizens and legal persons, legal persons and legal persons) are on an equal footing. From this, we can see that the so-called public law culture is essentially a criminal (criminal or national) legal system and its consciousness; private law culture It is a civil (civil or private) legal system and its consciousness.

(1) Public legal culture

How did China's legal culture—public law culture—form? What forces pushed it toward the opposite side of European legal culture? Let's look for its historical origins together. China is a country with a long history and An ancient civilization with splendid culture. Chinese civilization emerged under a special natural and historical condition, and has developed independently for a long time according to its own cultural logic and historical laws, forming a unique civilization model. Since the pre-Qin Dynasty Until the late Qing Dynasty, although there were invasions of foreign nations or the entry of foreign cultures into "China", China has always been a long-standing and continuous civilization with Confucianism as the leading value. All changes in Chinese history have harmed There is no great tradition of nation and country. Therefore, Chinese history only has a continuity of layer by layer unity and step-by-step expansion. There is rarely a complete overthrow and re-establishment like what modern Westerners call revolution. In terms of law, ancient Chinese society created It has a long history, a consistent and unique legal culture.

Since the Xia Dynasty entered class society, China's legal culture has begun to grow and develop based on the primitive customary culture of the previous clans and tribes. After the Xia, Shang and Western Zhou Dynasties, the basic pattern and characteristics of China's legal culture tradition were initially established.

During the Spring and Autumn Period and the Warring States Period, Chinese society entered a period of great change and turmoil, and Chinese culture began a great fission and diversification movement. By the Han Dynasty, ancient China

The legal tradition has basically been formed. Emperor Wu of the Han Dynasty implemented the cultural policy of "deposing hundreds of schools of thought and respecting Confucianism alone", which formally established the official ideological status of Confucianism. The ancient Chinese legal tradition passed through the Wei, Jin, Southern and Northern Dynasties to the Sui and Tang Dynasties, and then entered maturity and development

Status. The Yonghui Law of the Tang Dynasty represents the highest achievement of ancient Chinese law. After the Tang Dynasty, the Song, Yuan, Ming and Qing Dynasties basically developed on the basis of the legal system of the Tang Dynasty, with some gains and losses.

In my opinion, ancient Chinese legal cultural tradition has the following basic characteristics that are relatively stable and interrelated:

1. Family tradition

The patriarchal family is the basic unit of society and is a common basic feature of ancient society. The ancient family is a social unit with a clear distinction between superiority and inferiority. Among them, the older male respects his relatives as the head of the family and has the power to decide and dominate within the family.

The right to all affairs. The structural model and ethics of the Chinese family have universal cultural and social meanings that transcend itself.

Righteousness. In the minds of ancient Chinese people, family and country cannot be clearly distinguished. On the contrary, they often mention family and country together, from domestic affairs to national affairs, from family governance to country governance. At the same time, family ethics have also been transformed

It is the ethics of politics. From filial piety in family ethics, people can deduce loyalty in political ethics, and from the love of parents in the family, we can deduce the benevolent government of the monarch.

From the perspective of the ownership of state power, all Chinese dynasties are dynasties with one family name. The rise and fall of the dynasty is closely linked to the fate of the royal family. Before the Qin Dynasty, state power was established entirely based on blood relations rather than administrative divisions.

arose, forming a patriarchal country in the true sense. Here, blood relations and political power

Relationships, family structure and state power structure form a one-to-one correspondence. This is true for the emperor and his family, and it is the same for ordinary people and their families. The rise and fall of a family will inevitably affect its members, and the rise and fall of the status of family members will in turn affect the family.

As the saying goes, "One person attains enlightenment, and chickens and dogs ascend to heaven." "One person commits a crime, and nine tribes are implicated."

2. Ethics-based tradition

Different cultures may have different understandings of the social relations between people. In the eyes of people in ancient Chinese society, the social relations between people are mainly an ethical relationship. It depends on the age and life of the individual.

It develops, and gradually there are countless relationships in all directions, whether close or far. They are relationships, and they are all ethics; ethics starts from the family, but does not stop at the family.

This ethics-based spirit is manifested in economic life, which is an ethics-led economic life. The economic relationship between people is subject to the adjustment of family ethics and manifests itself as an ethical relationship. It is precisely because people view property relations from an ethical perspective, and

Not looking at property relations from the perspective of individual rights made the ancient Chinese legal system on property rights very underdeveloped. No wonder Liang Shuming said: "Chinese law

It developed early and reached an extremely precise level... However, the issues of property rights and claims detailed in the laws of various countries have been ignored in China for thousands of years. Gai Zheng's social organization is based on ethical friendship, and human relations are more important than property.

The first is that ethics have meaning because of emotion, and all Chinese laws are based on the concept of obligation, not the concept of rights. The second is. Knowing this, it is natural to ignore property rights and debts."

In politics, the politics of ancient China was "ethical politics". The rulers mixed religion, law, customs, and etiquette together. All these things are moral. All these things are moral character. The rules and regulations of these four,

It’s the so-called ethics. China’s rulers

It was successful because of strict observance of this etiquette. "But there are only ethical obligations between the monarch, his subjects, officials and the people, and they do not understand the relationship between the citizens and the state system. Therefore, in China, there is no distinction between public law and private law, and there is no distinction between criminal law and civil law."

It’s over.”——Liang Shuming.

In terms of law, Chinese law is an ethical law. The basic feature of this kind of ethical criminal law is the unification of etiquette and the integration of etiquette and law, or the legalization of morality and the moralization of law.

3. The tradition of rule by etiquette and rule by virtue

In the eyes of the ancients, rituals are inseparable from all aspects of being a person, doing things, and governing the country. Ancient rituals are compatible with the ancient status hierarchy order. Its basic spirit and value orientation are to establish the order of dignity and inferiority, and to maintain the integrity of ethics.

Tao and etiquette not only confirm and maintain social differences and hierarchies, but are also rich in differences and vary from person to person.

Etiquette and virtue, one is the external norm and the other is the internal principle, are mutually reinforcing each other. The rule of virtue contains three meanings: first, the ruler himself must be virtuous; second, the ruler must educate his subjects morally:

Third, rulers must extend favor to the people, that is, implement "benevolent government." If rulers want to consolidate their political power, they must put the people first, control the people's products, and cherish the people's strength.

4. The tradition of great unity

The concept of great unification in ancient China was often expressed in this way: "In the whole world, everything is the land of the king. On the shore of the land, is it the ministers of the king." From the perspective of its actual effect, the concept of great unity often became the banner of respecting the king and rejecting the barbarians, and became a symbol of the supremacy of imperial power and the

The conceptual basis of the political system and legal system with concentrated power. There was no real decentralization of power in ancient China. Although there were mutual restrictions and supervision mechanisms between various positions, the purpose of such restrictions and supervision was to facilitate the monarch's control.

Civil and military officials.

5. Normative unity tradition

One of the main manifestations of this tradition is the "unity of etiquette and law." This is not only reflected in the consistency of etiquette and law in basic content, value orientation and spirit, but also in the lack of obvious boundaries between etiquette and law in their external form.

This pattern of chaotic and indistinguishable norms is also very obvious in national laws, which is the so-called pattern of indistinguishability between civil and criminal matters and the integration of all laws. Since public and private life are not separated, various social structures and social relations are highly integrated, so

This creates a situation in which all laws are integrated in legislation.

The social order that ancient people longed for was a social situation in which ethics was the leading factor and various social norms were combined to form a world-wide "peace" or "great harmony". This ultimately led to a world where morality, benevolence, and righteousness were the first and most important.

The division, the etiquette of duties, the determination of right and wrong, the laws of rewards and punishments, and finally the emergence of a great governance situation where hierarchies are clearly defined and everyone has their place.

(2) Criminalization of the Code

After analyzing the legal and cultural traditions of ancient China, it is not difficult to find the answer if we look at the questions raised at the beginning. Let’s look at criminal law first. In the concept of ancient Chinese people, punishment is law and law is law. Chinese tradition

The criminal law in our minds is different from the criminal law we understand today. Modern legal science believes that criminal law is about crime and punishment.

The sum of legal norms, its function is mainly education (prevention of crime), followed by punishment (sanctioning crime); while the criminal law in traditional Chinese thinking is more focused on punishment (retaliation) and less on education (warning). This is because,

Law means punishment, and punishment means killing. The purpose of killing is not for anything else, but for revenge. The nature of traditional Chinese law has been transformed into punishment.

It is not difficult to understand that traditional Chinese law has become a unique criminal law, manifested in a developed public law culture. From the perspective of historical tradition, Chinese law was originally formed mainly in the wars between tribes, and was mainly manifested in the form of criminal law.

, is mainly used to deal with and punish barbaric foreigners. This unique historical origin has a profound impact on the mindset of future generations. People always habitually regard the law as punishment, and they are always accustomed to treat the law as punishment.

punishment and brutality and

They are associated with lower-class people related to barbarism, uneducated people, those who disobey etiquette, those with evil intentions, etc., who can all be collectively referred to as villains with bad character (evil nature). However, thinkers are influenced by the times, status and

Due to the limitations of knowledge, it is impossible to have a scientific analysis and understanding of this. We can only derive corresponding legal concepts and criminal concepts based on the phenomena and subjective impressions of things. This non-scientific theory has influenced more than 2,000 people to a large extent.

The development direction of Chinese law in 2019.

(3) The criminal nature of civil law

Let’s look at the civil law again. As we all know, civil law is a general term for the legal norms that regulate certain property relationships between equal rights subjects (citizens and citizens, citizens and legal persons, legal persons and legal persons) as well as personal relationships related to property. It has several

Elements: (1) Only citizens or legal persons can become rights subjects; (2) Both rights subjects are equal in law; (3) The content of the adjustment is property relations and personal relationships related to property; (4) Punishment

Methods and means are different from punishment

The law generally adopts the methods of stopping the infringement, returning property, compensating for losses, paying liquidated damages, apologizing, etc., and does not use criminal methods such as gangs, exiles, battles, and killings. In this way, we can compare and review traditional Chinese laws. Traditional China is not strict.

Civil law in the sense. The feudal dynasties of China have laws that specifically regulate property and personal relationships related to property. If they are not civil laws, what are they? From the content point of view, they are all civil, but in terms of nature

, they are not civil laws.

Our country had legal provisions on civil activities as early as the Western Zhou Dynasty. Contracts at that time were mainly loans and sales. Anyone who violated the contract provisions and failed to pay interest on time would be subject to criminal penalties. This is the so-called: "Everyone has the same goods and property."

Those who violate the orders shall be punished according to the laws of the country." In addition, contract disputes arising from sales or leasing will eventually be dealt with by means of punishment. This characteristic of criminal punishment with civil content has become a common practice since the Western Zhou Dynasty.

This tradition had no fundamental basis until the late Qing Dynasty.

Changes. In traditional China, on the one hand, civil affairs were criminalized, and on the other hand, their status and number in the national legal system were extremely limited. General civil disputes were handled by the private sector, and the main methods of handling were

Mediation is based on customs and clan regulations. Not only did there be no civil law (code) in feudal national law, but folk customs and clan regulations that specifically deal with civil disputes cannot be regarded as civil law. Therefore, traditional China did not have civil law (code) in the strict sense.

).

Criminal law is a legal system about crime and punishment, and crime is its core. Therefore, criminal law can also be called crime law. Civil law is different from criminal law. Civil law is the legal provisions related to illegal acts and torts. An important difference between them is

, objects protected by criminal law

They are national interests and social order, while what civil law protects are private rights (property and rights of individuals or legal persons). Therefore, to a certain extent, criminal law is a crime law, national law, and public law; civil law is a

The law of delicts, the law of torts, private law.

The key social reason for the criminal nature of traditional Chinese law should be the development of state power and concepts in traditional China. Traditional China was a society with highly developed state power and concepts. This situation had developed considerably as early as the Bronze Age, Qin, Han

In the future, it will become more and more intense, and the centralization of authoritarianism will become increasingly strengthened. The situation of the family and the country becoming one and integrating the family into the country is rare in the world. This kind of social situation will definitely form the basis for all the problems based on the country.

Family interests and the stability of social order are the highest values, which will inevitably lead to the infinite diffusion of this value, penetrating into all areas including purely private affairs. In this way, private affairs are linked to social order and the political control of the state.

, the national law with the purpose of safeguarding the highest value can only be a public law that abolishes privateness. Abolition of private publicity means that the state uses force to interfere in private affairs (this is exactly what the people want)

(the main scope of legal adjustment), to ensure national interests and political control, and regard all behaviors as related to the state, and all illegal and tortious behaviors are crimes. This lays the foundation for the possibility of criminalization and nationalization of all laws. It is necessary to make

To realize this possibility, the state power must be strong. Compared with the Western non-governmental constraints on the government, China's state power has always been strong and has its own profound

The basis of this highly systematic and centralized state power in the ancient world has made legal criminalization and nationalization universally realized from concept to system. Of course, the factors that influence the legalization and nationalization of Chinese law and criminalization are definitely not only

Only that, due to space limitations, the group-oriented nature of the law (obligation-oriented is one of the inherent characteristics of criminal law), legal moral responsibility, etc. can only be temporarily skipped.

The criminal nature of traditional Chinese law does not indicate that Chinese culture is backward. It only reveals the public law and national political nature of this culture from one side. This characteristic is not only a reflection of Chinese society, but also an important factor in maintaining order in this society.
Chapter completed!