[Abstract] Research on litigation culture is an important method for comparative research on litigation systems. The study of litigation culture must draw nourishment from the vast social life and social thoughts. The litigation concepts, operation methods, regulations and systems, and equipment and facilities contained in some classic cases in ancient times have become a breakthrough in the study of litigation culture.

[Keywords]Litigation culture, self-determination, mediation and trial

"The Case of Mei Mei", also known as "Qin Xianglian", is one of our traditional operas. It tells the story of Junzhou (now Danjiangkou) in the Song Dynasty. ) The story of Chen Shimei, a man who refused to recognize his ex-wife and was guillotined to death by Mr. Bao. Through the whole play, we can get a glimpse of the legal culture displayed in the value conflict between ethics and law under the ancient patriarchal system, the conflict between the rule of man and the rule of law in feudal society, and the conflict resolution mechanism of social conflicts. This article intends to take the litigation procedures caused by the conflicts between the relevant characters in "The Guimei Case" as the main line of research, and conduct a systematic study of the litigation culture of the Song Dynasty through the analysis of the characters in the case.

1. Pre-litigation dispute resolution procedures

Looking at this case, before Qin Xianglian went to Kaifeng Mansion to request the judicial authorities to intervene, she took a series of measures in the hope of reuniting with Chen Shimei. Since the original intention of Qin Xianglian's trip to Tokyo was to find Chen Shimei and restore her marriage to him, the methods she used during this period - self-determination and mediation, were in nature a mechanism for handling civil disputes.

1. Self-determination

The so-called self-determination means that the subject of the dispute resolves the dispute on its own strength to safeguard its own rights and interests. Different from reconciliation, it emphasizes that one party in the dispute relies on its own strength to make the other party obey. Qin Xianglian and her two young sons tried to enter Muchi Palace where Chen Shimei lived. Here she adopted the process of self-determination. A detailed analysis shows that there are three reasons why Qin Xianglian initially tried to use her own power to make Chen Shimei surrender: First, she fulfilled her obligations to Chen Shimei's parents and "bereaved them for three years"; second, she had two problems with Chen Shimei. Third, the etiquette of feudal society emphasized that "the wife of chaff should not go to court". After all, Chen Shimei did not go through the formal divorce procedures. Therefore, a country woman who had never seen the world dared to break into the Prince Consort's house in a strict hierarchical society. However, Qin Xianglian never expected that Chen Shimei, who "worked as a farmer in the morning and ascended to the emperor's palace in the evening", was no longer the simple and kind scholar she thought she used to be. The overnight fame and the title of Prince Consort had already caused Chen Shimei's mentality to undergo a huge change. In his mind, there was a sharp contrast between Qin Xianglian, a country girl, and the imperial aunt, who was treated as a princess. This can be seen from Qin Xianglian's lyrics:

Qin Xianglian, look up and see the golden branches and jade leaves in front of your eyes

Wearing a beautiful green crown and a sun and moon dragon and phoenix shirt

She is as fresh and colorful as the peonies in spring and I am like the plum blossoms in the snow that are resistant to frost and cold

After looking at her, come and see if my half skirt is well covered

No wonder the robber has changed his mind She is young, beautiful and authoritative

Freud said: Our nature determines that our strong feelings can only arise from contrast, not from one thing. As a result, Qin Xianglian's so-called "self-determination" capital seemed insignificant in stark contrast. Her fantasy of using her own power to influence Chen Shimei's return as a prodigal son was vulnerable to reality. But fortunately, the road is boundless, and Prime Minister Wang Yanling appeared in time, so that the pretrial procedures were not exhausted.

2. Mediation

After learning about the incident, Wang Yanling took in Qin Xianglian's mother and son. Later, she took the opportunity to go to Muchi Palace to celebrate Chen Shimei's birthday and brought Qin Xianglian in as a singer. After that, she fully Using the method of luring a snake out of its hole, he directed a "mediation play" in Muchi Palace of Consort Chen. For Qin Xianglian, the intervention of court administrators gave her hope again. When she saw the imperial aunt again, she had enough courage:

In terms of national law, I should marry you

In terms of family law, you should marry me first

Marry first Marriage has different consequences

I am right and you are biased

If Wang Yanling’s intervention rekindled Qin Xianglian’s hope, then what really made her dare to fight against the imperial power was the feudal society family law system. This system, which originated from the patriarchal system of clan society, has been well integrated with the country's legal norms as early as the Western Zhou Dynasty. They are mutually reinforcing and constitute the patriarchal system on which the entire society depends. In terms of national law, "Under the sky, everything is the king's land. On the shore of the land, there is nothing but the king's ministers." As the ruler, the marriage assigned by the emperor has its own legality beyond doubt. Therefore, from the perspective of national law, although Chen Shimei is a "bigamy", it is a legal marriage. However, the patriarchal system not only includes national laws, but also family ethics. "The difference between men and women is followed by father and son's intimacy, father and son's intimacy is followed by rites, and rites are performed then all things are in peace." "Those who fail to do rites are the beginning of all things." The etiquette formed in the Western Zhou Dynasty spread for thousands of years to the Song Dynasty, and became even more deeply rooted in the hearts of the people. The patriarchal system implements "monogamy and multiple concubines" in marriage, that is, there is only one head wife. "The emperor has a queen, a wife, a married woman, a concubine, a wife, and a concubine." This is still true for the emperor, and the people of Li obey it even more. Chen Shimei's marriage to Qin Xianglian back then was "the order of her parents and the words of the matchmaker", and she was a legitimate wife. The "three no-goes" system added an extra layer of protection to Qin Xianglian's marriage.

The so-called "Three Don'ts" refer to "the mourning of the aunt and uncle", "the marriage was humble and then became rich" and "you get something but nothing to return to". If one of these conditions is met, the husband will not get a wife. It can be said that Qin Xianglian meets all three conditions, especially after Chen Shimei abandoned her father and mother and "died for three years". In a feudal society that advocates filial piety, Qin Xianglian is even more of a trump card. And when she pointedly pointed out the paradox and the essence of the problem, the sharp contradiction between the two pillars of the patriarchal system - national law and family law became clear. The foundation for the existence of the entire society is about to collapse because of the emergence of Qin Xianglian. Family law and national law under the patriarchal system have always been harmonious and unified, and in terms of value selection, the meaning of family exists for the country. When the interests of the two conflict, it is always the family who takes the initiative to make sacrifices. Therefore, when Qin Xianglian insisted on safeguarding the so-called ethical justice, the failure of mediation was a normal result of the development of the incident. And it forced Chen Shimei to a road of no return: family ethics and morals were his fatal point. Wang Yanling's acceptance of Qin's mother and son was equivalent to hanging a sword over his head. When he sent his family to chase Han Qi, When he killed his wife and children, he was one step closer to Bao Zheng's tiger-headed guillotine.

2. The initiation and operation of criminal proceedings

Chinese people have the traditional value of "aversion to litigation" or "disgrace to litigation". As early as the Spring and Autumn Period, Confucius said: "We are just like a human being when it comes to hearing lawsuits, so we must avoid lawsuits!" Confucius hoped to achieve this through long-term moral and ethical education and the example of the ruling class, so that litigants would be ashamed to litigate. The harmonious and tranquil ideal state of "no lawsuits in the village, no lawsuits in the streets, no lawsuits in the courts". With the universal application and supremacy of Confucianism in China after the Han Dynasty, the idea of ??aversion to litigation has also become an integral part of Chinese traditional culture. However, Mr. Su Li believes that as a social phenomenon, litigation aversion is not the product of an idea, but a behavioral trend or behavioral habit formed under certain restrictive conditions to seek advantages and avoid disadvantages. To change this social and legal phenomenon, we must To enable people to be able and willing to appeal to the formal legal system, the important thing is not to raise citizens' awareness of rights, not to promote the so-called legal education and inform citizens of their rights, but to provide a way to appeal, and more importantly, to provide A legal system that can functionally replace the original dispute resolution method, including formal litigation mechanisms and other non-litigation mechanisms, to actually obtain or enjoy such rights. There is a scene in "The Guillotine Case": After the mediation failed, Wang Yanling gave Qin Xianglian a folding fan and asked her to use it as a token to go to Kaifeng Mansion to petition Bao Zheng. It was the help of the Prime Minister that gave Qin Xianglian the courage to continue pursuing "justice". This also implies that even in the "clear as water, as bright as a mirror" Master Bao, the results of the petition will be very important regardless of the background of the petitioner. for different.

1. Notification and Acceptance

After exhausting all self-rescue and social relief, not only did she not pursue the so-called justice, but she almost got killed. Qin Xianglian had to take Prime Minister Wang with her. He went to Kaifeng Prefecture to drum up his grievances and seek judicial relief. In the Song Dynasty, there was no special agency for prosecuting. Generally, the victim or his close relatives directly filed a lawsuit with the government, or the government at all levels prosecuted the crime. There were four main factors that caused the initiation of litigation procedures: private prosecution, which was initiated by the victim and his family. Reporting to the government; reporting by a third party means that an insider goes to the government to report someone else's crime. There has always been a law in ancient China that "rewarded whistleblowers", which is an obligation of the subjects to the country; surrender means that the criminal goes to the government to report himself guilt. In "The Mei Mei Case", Qin Xianglian adopted the form of private prosecution, which triggered the initiation of criminal proceedings. The notification and acceptance here are similar to the case filing system in our country's current criminal procedure law. Case filing is the initiation procedure of criminal proceedings. After the investigation agency reviews the materials of reports, accusations, reports, surrenders, and prosecutions by private prosecutors, it can start the investigation procedure when it believes that a crime has occurred and criminal liability needs to be investigated. After receiving Qin Xianglian's notification, Bao Zheng investigated the evidence related to the case in accordance with the laws of the Song Dynasty. The criminal evidence system of the Song Dynasty took the form of verbal evidence and physical evidence, and verbal evidence played a decisive role in judicial practice. Verbal evidence in the Song Dynasty included the confessions and statements of the plaintiff and defendant, as well as witness testimony. The defendant's confession and the plaintiff's statement were the basic basis for deciding the case, and the use of witness testimony was limited to the defendant "who did not comply with the torture" and was limited in quantity. The above must be "all evidences", that is, "three or more people, whose names are correct, can only be convicted together." The relevant theories of physical evidence were far from mature in the Song Dynasty, and were only used as an important supplement to oral confessions in judicial practice. In this case, Qin Xianglian's lawsuit itself is the plaintiff's statement. The fan Wang Yanling gave to Qin can be used as witness testimony. Although it is not "all evidence" and is in the form of words, it represents the position of the Prime Minister, and its implicit effect is obvious. However, from the perspective of judicial proof, the plaintiff's prosecution and witness testimony alone without the defendant's confession cannot meet the criteria for closing the case. Mr. Bao is deeply committed to the law, and Chen Shimei's arrest has become a top priority.

2. Arrest

"Song Xingtong" stipulates that once a case is brought to the government, the presiding officer must promptly summon relevant witnesses and arrest both the plaintiff and the defendant to take confessions. , understand the case and effectively imprison the criminal. From here we can see that arrest in Song Dynasty law is equivalent to detention and arrest in modern criminal proceedings in our country.

According to the laws of the Song Dynasty, Bao Zheng could send people to arrest Chen Shimei.

But Chen Gui is the consort and has a royal background behind him. This is something Bao Zheng has to worry about. And before the case finally comes to light, the rules of the officialdom game are something Bao Zheng does not dare to violate easily - he must be careful in the face of colleagues' friendship. care. Therefore, conventional arrest methods could never be used, so Master Bao found another way to trick Chen Shimei into Kaifeng Mansion. In this way, once the defendant arrives in court, Master Bao can go to court to decide the case.

3. Court trial

Judging from the judicial practice of the Song Dynasty, when the two parties have sufficient evidence and the evidence is relatively sufficient, the court hearing stage will immediately begin. In addition, in China's feudal society, local governments at all levels implemented the integration of administration and justice, and local judicial activities were generally also held by the chief executive. In July of the 9th year of the Taiping Xingguo reign (984), Emperor Taizong of the Song Dynasty issued an edict: "When conducting official investigations at the censor's desk, the censor must be consulted and conducted face-to-face. The curtain must not be lowered, and only the supervisor can be assigned to take the form." That is to say, the central judicial authority must participate in person when trying cases. Similar provisions are also made for the trial activities of magistrates. As the governor of Kaifeng, Bao Zheng was required by law to sit in court and resolve the case in person.

Under the litigation system of ancient my country that combined investigation and trial, the task of the trial was to investigate, review various evidence materials, and interrogate the defendant. Among all the evidence, the defendant's confession is the most critical. In China's feudal society, it was often impossible to convict and impose a sentence without the defendant's confession. Therefore, in court, in order to obtain the defendant's confession, the law clearly stipulates that torture can be used to extract a confession, and in terms of applicable objects, the law allows the torture of officials. In this case, after Chen Shimei arrived in court, Bao Zheng once said to himself: "That day at noon, we both accompanied you at the court gate. I noticed that one of your eyebrows was high and the other was low, so I concluded that there must be an ex-wife in your family." Words reveal the true meaning: Mr. Bao does not need the so-called "five listening" methods to "evaluate the words with emotion and verify them repeatedly". Mr. Bao formed a "free mind test" when they were drinking and drinking at the Qionglin banquet.

The appearance of Huanggu and Guotai made things seem to take a turn for the better. After all, they have royal status and can represent the emperor's will at certain times. Moreover, in a feudal society with the trinity of "natural principles, human feelings, and national laws", when emotions and principles conflict with national laws, the value of emotions and principles is higher than national laws. Under the strong political pressure from the royal family, Bao Zheng's belief in the rule of law was once shaken, and he tried to mediate the case in court. However, the irreconcilable contradiction between etiquette and law under the patriarchal system doomed this mediation to fail. Bao Zheng must make a choice between etiquette and law. Let's look at Chen Shimei's three major crimes - first, killing his wife and children: he sent Han Qi to assassinate his wife and children, but his success failed due to Han Qi's suicide, which was an intentional homicide attempt; second, he deceived the emperor: he concealed the fact that he once married a wife. In this case, deceiving the emperor and marrying the emperor's aunt damaged the emperor's dignity, which was a "great disrespect" among the "ten evils", although the emperor's aunt and the queen's plea showed that they had been forgiven; the third was abandoning his father and his mother and not fulfilling his filial piety. . The weight of these three major crimes is enough to push Chen Shimei into the guillotine.

4. Execution

When the values ??of the law are in a strong position, the iconic prop that achieves Bao Zheng's culture of honest officials - three copper guillotines can appear. The three-branch guillotine is just like the name in the costume drama. It is also called dragon head, tiger head and dog head guillotine. The dragon head guillotine is specially used to kill the royal relatives, the tiger head guillotine is used to kill civil and military officials, and the dog head guillotine is used to deal with ordinary people. In the hierarchical Song Dynasty, the three-mouthed guillotine was assigned different missions, and its own deterrent function made it an integral part of Bao Zheng's authority.

Can the death penalty be executed immediately after the verdict is made? It can be seen from the practices of feudal society and the procedural provisions of Song Dynasty law that they held a negative attitude. There are two reasons for this: First, my country's feudal society implemented the system of "no execution after the beginning of spring" and "execution in autumn and winter" for the execution of the death penalty. "Confucianism believes that "the king should kill in accordance with the seasons," so executions of death row criminals are usually carried out after the frost in autumn and before the winter solstice, because at this time "the heaven and the earth begin to be solemn", and the murderous intention has arrived, and it can be said to be serious. "Hundred punishments", to show the so-called "execution according to the heaven". Second, the Song Dynasty stipulated two pre-processes for the execution of the death penalty: review and review. For death sentences issued by state-level agencies, they must be approved by the Ministry of Punishment before execution. Or, the punishment department may request review and approval; in addition, during the reigns of Zhenzong and Renzong of the Song Dynasty, a system of review of the death penalty was implemented in the capital area. Death penalty cases decided by the Kaifeng Prefecture must be reviewed and approved by the central government, and the execution can only be carried out after the emperor's ruling and approval. There is no way to test the time when Chen Shimei was executed, but it is obvious that Bao Zheng violated the legal provisions. On the contrary, it was because he was worried about the emperor's personal intervention (the emperor's imperial edict did come later). , he broke through the legal obstacles and killed Chen Shimei immediately after the verdict was issued. In this way, under the emperor's rule of man (the obstruction of the emperor's aunt, the imperial concubine and the intervention of the emperor's imperial decree), Bao Zheng's rule of man (violating the provisions of the law and committing suicide without authorization) and Bao Zheng's rule of law (making fair judgments in accordance with legal provisions) is intertwined, reflecting the conflicting state of conflict between the rule of man and the rule of law in feudal society.

3. Conclusion

On litigation in ancient my country. On the one hand, the study of culture can enable us to understand the social concepts, historical habits, ideals and beliefs related to litigation in that era, as well as the social life of using litigation to resolve social conflicts, so as to grasp the historical trajectory of the development and changes of our country's litigation system. In addition, through ancient and modern Attention to litigation culture helps us grasp the inherent life and operating mechanism of the litigation model.

For example, why modern criminal proceedings adopt the forms of speedy trial separation, plea confrontation, and evidence-based adjudication instead of the ancient interrogation forms of integrating investigation and trial, extorting confessions by torture, and presumption of guilt are difficult to explain within the analysis of the evolution of the legal system itself. , but if we change the perspective of the research problem - starting from the perspective of litigation culture, we can grasp the soul of the litigation system to a considerable extent, and I believe that this will also have certain reference and even reference significance for our country's judicial reform today.

[References]

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[4] Zhang Aiwu.

An examination of the criminal procedure system in the Song Dynasty [J]. Quoted from: Legal Paper Database, URL: /lw/lw_view.asp? no=2685

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