Opium drugs and the new gunboats of western powers not only opened the ancient customs gate of China, but also broke the dream of China center in the eyes of feudal literati handed down for thousands of years. The culture and tradition of the western bourgeoisie followed the goods of the western powers and rolled eastward. The ancient oriental civilization, including legal culture, which has a glorious history of thousands of years, soon lost its former glory in the face of western culture (including legal culture). In the internal contradictions and struggles of modern social development in China, two completely different legal cultures moved from the conflict of opposites to the harmonious integration. Finally, China's ancient legal system finally disintegrated in this conflict and integration. Thus, China's law went out of the Middle Ages and entered modern times. This is a tortuous and painful process. The era of blood and fire, progress and retrogression, conservatism and innovation, tradition and externalization, are both seriously opposed and reconciled. In confusion and confusion, I completed this journey in the early 20th century.
First, the feudal law was in trouble.
The rule of law is also an important tool for social rulers to rule society since ancient times. China's feudal laws, from the formulation of the Classic of Law by Li Kui in the pre-Qin Dynasty to the compilation of the Law of the Qing Dynasty by him, lasted for more than two thousand years. After vicissitudes, they were deleted and amended by countless feudal politicians and lawyers. They used to be a very effective tool for feudal dynasties, including the Qing Dynasty, to maintain feudal rule. However, since the Opium War, due to the oppression of foreign powers, the resistance of domestic people and the trampling of the ruling class itself, this effective tool has gradually deteriorated, so that it is out of touch with social real life and cannot continue to maintain the feudal ruling order. It fell into an inevitable predicament and completely lost its former authority.
(1) Consular judgment, infringement of China's legal rights by foreign powers.
In order to meet the needs of aggression, the robbers of western civilization immediately set about establishing a consular adjudication system under the pretext of the barbarity and backwardness of the Qing law after opening the customs gate in China. "Outsiders are not punished by China, but China people are tried by foreign countries", 1 harmful.
This system was established in the Humen Treaty, the first unequal treaty concluded after the First Opium War, and the later Sino-British Trade Charter of Five Ports. The Tianjin Treaty concluded in the Second Opium War made it systematic and perfect. 65438+ The system of hearing cases in Shanghai in 1950s and 1960s was a further expansion of consular jurisdiction. The "yamen judges" in Britain, the United States and France, the "British High Court in China", the "American Court in China" in the United States, and the Japanese court established in northeast China openly exercise judicial power and try China people on the land of China according to foreign laws. The core issue of consular jurisdiction (also known as extraterritorial jurisdiction in modern times) is that citizens of countries that concluded treaties with the Qing government lived in China and were not subject to the jurisdiction of the Qing laws. Disputes between them and China people in China, whether criminal cases or civil cases, were tried by their consulates in China according to their own laws, and the judicial organs at all levels of the Qing government had no right to ask. Therefore, once this system was established, the Qing Dynasty lost its legal jurisdiction over foreign nationals entering China, and the original complete judicial power was also lost. The result not only seriously destroyed the original social order in China, but also brought a serious crisis to the rule of the Qing Dynasty. From 19 to 1990, thousands of large and small religious plans occurred in China, and the Boxer Rebellion broke out in 1900, all of which had a direct or indirect causal relationship with this system.
This kind of harm to consular jurisdiction was not only deeply felt by the bourgeoisie, but also listed as one of the reasons for legal reform during the Reform Movement of 1898, and people of insight within the feudal ruling group were also very aware of this harm. At the beginning of the 20th century, Shen Jiaben, the minister in charge of legal reform, said many times when explaining why the old law needed to be reformed: "The state has an independent system, that is, it has independent legislative power, and the legislative power is based on territory. It is a common practice in all countries, but the monarch has the final say, the minister's family is subordinate to the official, the recognized troops and warships have extraterritorial jurisdiction, and the rest of the people living in their own countries follow the jurisdiction of their own laws. So is the so-called territorialism. Only for China to grant consular jurisdiction on the pretext that the judicial system is not perfect, the British rules are ahead and the German heels are behind. Japan opened a court in the birthplace of its ancestors, and its power is decreasing day by day, and its future troubles are growing. " He also said: "The popularity of Nestorianism began in the Tang Dynasty. Daqin, Mani and Coat God are different. It is said that westerners are willing to rely on them. From the early Ming Dynasty to the early Republic of China, Matteo Ricci, Xiong Sanba, Tang Ruowang, ferdinand verbiest and others used their mathematics to teach China. Although they believe in many followers, this is quite different from the present situation. The religious plan is a terrible disaster. So far, priests, priests and other governors have become ignorant and arrogant. Whenever there is a religious lawsuit, the trial is uneven and the people and the church are hostile to each other. Since the opening of the maritime ban, Gai has been worried about your father because of his noisy teachings, and his words are painful. The reason is nothing more than the severity of domestic and foreign criminal laws. The damage of consular jurisdiction to the legal system of Qing Dynasty became the direct reason for adopting western law to reform China and France.
(B) China's new system, historical elegy and new songs of the times.
Farmers are at the bottom of feudal society, and the double oppression of imperialism and feudalism makes them hate the feudal legal system. Therefore, at the beginning of the armed uprising, the heroes of the Taiping Heavenly Kingdom pointed their finger at the feudal legal system of the Qing Dynasty. In "Offering Heaven and Asking Khufu to Spread Clothes", they denounced the Qing Dynasty for "making laws like a demon, which made the people of China unable to get out of the net and at a loss": "Officials get bribes, but punishment is exempted with money". "Those who arise to revive China falsely accuse them of rebellion and punish their nine families". In a word, the feudal rule and legal system of Shannan Bamboo Sea are written all over the place; The waves in the East China Sea cannot wash away the heinous crimes.
Heroes in heaven hate the feudal world in which Xiang Ling fought each other, and yearn for a fair, just and peaceful world in which the strong are not weak, the masses are not violent, the wise are not deceitful and the brave are not afraid. "There are many men in the world, all brothers, and many women, all sisters. How can we keep the privacy of this border and another? How can you have the idea of swallowing me? " Hong Xiuquan: the original way to wake up the world. With this beautiful ideal, from the beginning of the revolution, the leaders of the kingdom of heaven stipulated in the form of "dogma" that the rebels should be filial to their parents, not to kill, not to commit adultery, not to steal and rob, not to lie and not to be greedy; Rebellion against parents, murder, adultery, smoking foreign cigarettes, singing evil songs (smoking opium), stealing and robbing other people's property, telling lies and talking nonsense, greedy for wives' and daughters' property and gambling are all regarded as crimes and punished. four
After the capital Tianjing, farmers immediately formulated laws such as the "celestial system" and put their ideals into practice. These laws, from land distribution and marriage to crimes, penalties and litigation systems, are all against the old feudal legal system of the Qing Dynasty. Although the legal system of the Taiping Heavenly Kingdom has many backward elements due to the limitations of the times and the peasant class, and it cannot be fully implemented due to war and other reasons, it negates and replaces the feudal legal system in most parts of China for more than ten years, and its revolutionary role in destroying the old legal system cannot be underestimated.
Especially worth mentioning is Hong Ren's Senior Minister's New Chapter. This book, examined and approved by the heavenly king Hong Xiuquan, is not only a further sublimation of farmers' ideals, but also a program for modern China to realize national modernization. This is a new song of the times, depicting the blueprint for governing the country according to law. "The so-called law-abiding people, such as observing discipline and educating etiquette, should be based on legislation." The "law" of "rule of law" is not a general "law", but a new law governing the kingdom of heaven. This new law is tempered by legislators, who have an insight into the nature of heaven and man, are familiar with the customs of various countries, and have a bright source and nothing else in their hearts. The contents of the new law include equal exchanges with foreign countries, as well as transportation (railways and ships), banking, machine building, mining, posts and telecommunications, journalism, commerce and education. These ideas and propositions were rare in ancient times and unheard of in feudal legal system.
Although the ideal put forward in Senior Minister's New Chapter was not put into practice for various reasons, in the 1950s of 19, the plan of adopting the advanced system of western countries to govern the kingdom of heaven was put forward in such detail, which was far superior to the feudal rulers in understanding and was itself a denial of the feudal legal system.
(3) In terms of spot, the central government has lost control of the localities.
After the Manchu aristocrats entered the Central Plains and unified the whole country, they "had a generation of legal system and were in power many times". On the basis of summing up historical experience, establish a complete judicial trial system. The trial of death penalty cases must follow strict legal procedures to ensure the feudal emperor's right of final adjudication of death penalty cases.
According to the laws of the Qing Dynasty, all death penalty cases in all parts of the country except the capital were examined by the county where the case occurred, and then transferred layer by layer. After layers of examination, the governor finally submitted a question to the emperor in the form of a closing report, and the emperor made a final ruling.
This system of death penalty review and trial ensured that the emperor had the power of life and death over the whole country and safeguarded the emperor's absolute authority. However, it also has disadvantages. First, it takes a long time to close the case (often several years) and consumes a lot of money. Second, the safety of prisoners in the transfer process can not be guaranteed. This time-consuming and costly system is suitable for peaceful and stable times. In the era of the Taiping Revolution and the great national turmoil, it was obviously impossible to effectively serve the maintenance of feudal rule. The "correction on the spot" characterized by quickness, convenience and severity just makes up for the defects of this death penalty review system. But it caused another evil result, that is, the original feudal legal system was disrupted.
In March of the third year of Xianfeng (1853), that is, the third year after the Taiping Heavenly Kingdom Revolution broke out, the summary execution was announced and implemented in the form of imperial edicts of the Qing Dynasty. It authorizes local officials at all levels throughout the country to "enforce the law on the spot" against captured "bandits"; Authorize local regiments to train gentlemen to catch "bandits" and "from ruin". The death penalty cases in Qing dynasty were mainly life-long and theft. "Bandits" who "enforce the law on the spot" are all associated with life and thieves. Therefore, allowing local officials to immediately enforce the law against bandits is tantamount to announcing the abandonment of the original death penalty review and transfer system. The power to decide the death penalty in the case of life theft has changed from highly centralized to highly decentralized, which is the change of the trial system brought about by the implementation of "on-the-spot justice" To meet the needs of political struggle and class struggle, in order to continue the feudal country, the feudal rulers finally destroyed the legal system they established. The result of this change is indiscriminate killing across the country. "The power of the government has declined, and prisoners are punished at night. Likes and dislikes arise from the county, and life and death arise from the ink collectors. I don't know, but I don't ask. Therefore, the criminal chapter has been abolished and there is nothing to appeal to. " For thousands of years, feudal rulers took "the heavy code of dealing with troubled times" as the standard, which was the last time the feudal landlord class put it into practice in the last days of feudalism.
Correcting the law on the spot effectively cooperated with the military encirclement and suppression of the Qing Dynasty and suppressed the resistance of farmers in the Taiping Heavenly Kingdom. The feudal landlord class verified the truth of maintaining the feudal ruling order with the head of the rebel. However, destroying the legal system is not conducive to the long-term interests of feudal rule. Therefore, some people in the feudal ruling class, in order to eliminate the neglect within the feudal ruling group caused by the peasant uprising, started from weakening local power to strengthening the central imperial power, and repeatedly advocated abolishing the land method and restoring the old legal system. However, due to the need to maintain the ruling order and the opposition of local governors, "the articles of association have changed with the country since then, and the system of changing the law on the spot has not been reformed." After eight calendar years, the destroyed feudal old system has never been restored.
(d) New things emerge one after another, and old laws are hard to cope with.
In the Qing Dynasty, laws and regulations went hand in hand with the old system of the Ming Dynasty. "If there is no law, the law has become empty talk, but the case has become more and more complicated." The number of cases of Qing dynasty was only 32 1 in the early years of Kangxi, and increased to 1, 892 in Tongzhi years. According to the customization of Qianlong, the example is five-year minor repair and ten-year overhaul. However, "every revision, the first chapter is to sort out the calendar, imperial edicts and official regulations, and never integrate the whole book and correct it one by one." Between cases, there are "conflicts before and after, or extra-legal aggravation, or breaking the law because of one case, or setting an example because of one case, or saving one province and one place because of one case, or even giving birth to another case because of one case, which is not only different from other departments, that is, one case is different from another." As a result, the actual operation of the legal system has been seriously affected. The severity of crime and punishment varies with different applicable cases, which provides convenient conditions for screen friends and small officials to manipulate the judiciary (officials in the Qing Dynasty only care about their own official career and do not learn the name of punishment. After becoming an official, he gave the name of punishment to his aides who had been engaged in it for a long time and even passed it down from generation to generation. The folk proverb "Manchu Dynasty and Small Officials * * * World" is a complicated example of small officials' manipulation, and it is a high generalization of traitors who are bound by fate.
In the ninth year of Tongzhi (1870), the Qing rulers ordered the last revision. Since then, due to "so many times, the articles of association have accumulated over time, and the punishments are afraid of their numerous accusations, and they dare not discuss it, and the ministers have not discussed it for a long time." The old law was divorced from the real life of the society and could not promote the normal operation of the feudal state machine.
In the past, some scholars emphasized that the new laws formulated by the Qing Dynasty at the beginning of the 20th century were out of touch with the real social life, while ignoring or even talking about the old feudal laws out of touch with the real social life. In fact, the Westernization Movement from 65438 to 2009, which started in the 1960s and aimed at saving the feudal dynasty, inevitably gave birth to China's modern capitalist economy. The changes in social life brought about by the emergence of modern capitalist economy cannot be adapted by the old law firm based on self-sufficient natural economy. For example, because there is no commercial law in the old legal system, we can only passively punish fraudsters of fictitious companies according to the old Regulations on Punishing Banks in Beijing, but we can't actively manage businesses according to law, let alone protect domestic industries and businesses that are overwhelmed by foreign industries and businesses in competition according to law.
In modern times, many politicians and thinkers have talked about the disadvantages of the old law and put forward suggestions for reform. For example, Zhang Zhidong and Liu Kunyi, representatives of the Westernization School, pointed out that since the establishment of the Commercial Law, "all bulk businesses are foreign businessmen, and Chinese businessmen just watch." The reason for this is that "machine manufacturing is beyond the financial resources of one or two people." All foreign companies are powerful, with thousands of companies. European and American commercial laws are the most detailed. Its country is also supported by many parties, and its cause is booming. China always despises businessmen and doesn't talk about business rules. So people in the market are selfish, cheating each other, smart people are losing money, and stupid people are also involved. Therefore, they regard the stock market as a dangerous road and cannot compete with foreign investors. Therefore, "as long as there is commercial law in China, China businessmen will have nothing to hide, large companies involved in human trafficking will succeed, large factories will be established, and fake foreign firms will be destroyed". 10
In a word, after entering modern times, the old feudal law was gradually divorced from the real social life under the attack of internal and external forces. Old content and ever-changing real life force it to be completely transformed.