History of Criminal Law of China

Author: Cai Shuheng
Publisher:
Publishing Date: 2005-01-01
Features: This book has two major characteristics. First, the author is proficient in phonology and etymology, offering new insights into the original meanings of the Book of Documents and other ancient texts, correcting long-standing misunderstandings. For example, after the long wars of the Spring and Autumn and Warring States periods, Qin Shi Huang declared: "If a man marries a wife for a temporary stay, killing him is not a crime." Traditional interpretations have always explained this literally and crudely as "killing the adulterer is not a crime," as seen in Shiji Suoyin. The author examines this and states: "‘Fu’ refers to a grown man, an adult male. ‘For’ means to do. ‘Ji’ and ‘ju’ are homophones, with ‘ji’ borrowed for ‘ju.’ In Jiyun·Zhi Yun, ‘ju’ means ‘only.’ In Zhi Yun, ‘qi’ means ‘not paired,’ and it is also written as ‘ju.’ ‘Ju’ is borrowed for ‘qi.’ ‘Zhi’ and ‘not paired’ both refer to the singular. ‘Jia’ (jiā) and ‘jia’ (jiā) are homophones, belonging to the Ma rhyme. ‘Jia’ is borrowed for ‘jia.’ ‘Jia’ means a dwelling. ‘Fu’ for ‘ji jia’ actually means ‘fu’ for ‘qi jia,’ that is, a grown man living alone as a household. This means not marrying a wife. Those who do not marry a wife, if killed, are not guilty. In reality, it grants the masses the power of life and death.” (Page 176 of this book) Second, the author adopts a combination of horizontal and vertical analysis in this book. On one hand, the historical development of the penal system is divided according to the changes in the ownership of productive forces. On the other hand, the entire book is divided into several issues for separate narration, exploring their respective development processes and patterns. The book, excluding the introduction and conclusion, consists of 12 chapters, or 12 specialized topics on the history of criminal law, covering almost all fields of criminal law history. The major difference from traditional criminal law history is that the traditional approach generally explains each dynasty separately, then under each dynasty’s topic, clarifies crimes, punishments, and laws. The drawback of this method is that it obscures the historical evolution of criminal law history. Therefore, this book abandons this format and instead divides topics individually, explaining the historical evolution of each issue based on the changes in the four old forms of ownership of productive forces, allowing readers to clearly see the past and future developments of each topic in criminal law. The author uses the perspectives of dialectical materialism and historical materialism to study criminal law issues, believing that the legal system belongs to the superstructure and is an important part of it, determined by the economic base. The economic base refers to the sum of production relations, among which the most fundamental is the form of ownership of productive forces. Therefore, with changes in ownership, the superstructure must also evolve. The author argues that after the collapse of primitive communism in the late era of Shennong, the ownership of productive forces in old China underwent four transformations: the private ownership of productive forces by the people (the era of the Five Emperors), the private ownership of productive forces by the rulers (the era of the Three Kings), the private ownership of productive forces by the family head (from the Spring and Autumn and Warring States periods to the late Qing Dynasty), and the private ownership of productive forces in law after the late Qing Dynasty. Thus, any examination of criminal law history issues should not be separated from the development process of ownership. The author first examines the formation of the state, from primitive groups bound by blood ties to primitive tribes, the emergence of village territories with clear boundaries, known as ‘feng,’ which is the same as ‘bang’—originally a productive and living unit, but later transformed into a unit of class exploitation to prevent raids by other states, thus forming a state. Zhouli Jieshao·Tian Guan notes: “To encircle and enclose is called a state.” Initially, states were numerous, with over 1,773 states during the Zhou Dynasty, until Qin Shi Huang unified the empire and established a centralized, centralized state system. Meanwhile, the author also gives special attention to the development and changes of marriage, surnames, clans, kinship, and class. Based on these, the evolution of legal forms is explored. In primitive communist society, customs and habits regulated people’s behavior. Only in the era of the Five Emperors did the ‘bang mu’ (chief of the state) represent the people in governing the state, introducing decrees issued by rulers. In the Qin Dynasty, there were laws and legal forms, but their meanings were not clear. In the Han Dynasty, rites and laws were mixed, developing the new legal system since the Warring States period, implementing the Confucianization of Legalist laws. In the Tang Dynasty, in addition to laws and regulations, there were formats. In the Song Dynasty, legal systems were summarized as edicts and formats. The Ming Dynasty followed Tang examples, while the Qing Dynasty again divided them into laws and examples. In the Republican era, they were divided into laws and orders. The enforcers of these behavioral norms also evolved from initial shamans and rulers to monarchs, until the overthrow of the monarchy and the establishment of a democratic system, when the enforcement of laws underwent a fundamental change. The author, based on the view that the history of punishments reflects the history of ownership in the superstructure, explains the penal systems centered on capital punishment in the era of the Five Emperors, the penal systems centered on corporal punishment in the era of the Three Kings, the penal systems centered on transportation and exile from the Sui and Tang to the Qing, and the penal systems centered on freedom penalties after the late Qing Dynasty, demonstrating the trend of leniency in punishments. The author also explains the changes in criminal law due to struggles between the emperor and officials: "From non-existent to existing, then splitting into two due to its own development, ‘yi’ outside of ‘lun,’ with ‘yi lun’ and ‘yao lun’ opposing each other. Further, due to struggles between the emperor and officials, orders replaced ‘lun.’ Later, due to struggles between the people and the emperor and the people and officials, ‘yi lun’ and ‘lü li’ merged into criminal law, with special laws and separate laws replacing ‘lun’ and ‘li.’" The development of criminal law also has multiple forms. On one hand, there are statutes, precedents, and laws, regulations, formats, and comparisons in the Ming and Qing Dynasties. On the other hand, there are the temporal and spatial effects of criminal law. At the same time, the author explains the development and changes of the names and realities of criminal law based on its historical evolution. The author also clarifies how the status of criminals in each dynasty’s criminal law affects criminal liability, and the role of criminal facts and the danger of criminals in sentencing, as well as the development and changes of basic criminal forms, such as attempts and theories of joint liability. The author also elaborates in greater detail on the development and changes of several ancient crimes and punishments, such as sexual crimes, property crimes (such as theft and robbery), political crimes (such as treason, rebellion, and rebellion against the state), and crimes against the person (such as murder and injury). In terms of punishment, regardless of the dynasty, the severest punishment was for political criminals, followed by crimes against the ruling class’s person and property, such as robbery. Punishments for murderers were generally cautious, and the applicable punishments have been explained in the historical evolution of the penal system. This book is a specialized work on the history of criminal law, the result of the author’s 20 years of effort, thoroughly explaining almost all important issues in the history of criminal law, and holding significant academic reference value for the study of criminal law history in China.