First, China's early legal system (slavery legal system era)
China's early legal system generally refers to the legal system in Xia, Shang, Western Zhou and Spring and Autumn Period, which is also commonly referred to as the legal system in the slavery era. Time includes the historical stage from 2 1 century BC to 476 BC. The prominent feature of China's early legal system was that the common law was the basic form and the law was not open.
In the early legal system of China, Xia and Shang Dynasties were the foundation period. The Xia Dynasty has existed for about 500 years since Xia Qi established it in the 2nd/kloc-0th century BC. During this period, the early penal system and prison system in China developed to a certain extent. Shang replaced Xia Hou for nearly 500 years. On the basis of inheriting the legal experience of Xia Dynasty, Shang Dynasty made great progress in terms of charges, penalties, judicial system and litigation system. The data of Oracle Bone Inscriptions unearthed in the early 20th century proved that the criminal law and litigation system of Shang Dynasty were relatively complete.
The heyday of China's early legal system was in the Western Zhou Dynasty. In the history of China, the Western Zhou Dynasty is a very important historical stage. During the more than five centuries of the Western Zhou regime, China's traditional ruling style, governing strategy and some basic political systems have been formed, and the ideological and cultural factors such as philosophy and ethics, which are the cornerstones of traditional culture, also began at this time. From the legal point of view, the form and content of the legal system in the Western Zhou Dynasty reached the peak of the early legal system. In the Western Zhou Dynasty, the legal guiding ideology of "matching heaven with morality" and "being cautious about punishment with morality", the legal principle of reducing or exempting punishment for crimes of all ages, distinguishing intentional crimes from negligent crimes, and the criminal policy of "saving the world with light punishment" all had the highest legal level in the world at that time, and also had an important impact on the legal system of China in later generations. Therefore, the legal system of the Western Zhou Dynasty is one of the focuses in the study of China's legal history.
The Spring and Autumn Period was in the early stage of the first great turmoil and great change in the history of China. At this time, the focus of social change is "breaking", that is, denying and challenging the patriarchal clan system established in the Western Zhou Dynasty, including politics, economy, ideology and culture. In the aspect of legal system, the movement of publishing written law with the content of opposing "a legally prescribed punishment for a crime" and demanding "making the law public" is booming. Zheng's Zhu Xing Shu, Deng's Zhu Xing and Jin Guo's Zhu Xing Ding are all representative achievements of this legal reform movement.
Second, the ancient legal system after the Warring States Period (feudal legal system era)
The ancient legal system after the Warring States Period generally refers to the legal system of the major feudal dynasties in China from the Warring States Period to the Opium War, including the legal history from 475 BC to 1840. Since the Spring and Autumn Period, written laws have been published to the whole society in China. Since then, China's laws have changed from the initial state of non-disclosure to the state of statutory law as the main body. During the two thousand years from the Warring States to the late Qing Dynasty, fundamental changes have taken place in legal theory, legislative technology, legal scale, legal content and judicial system. What we usually call "traditional legal culture" and "traditional legal system" were formed, developed and matured during this period. According to the development of the legal system and its role in the inheritance of the whole legal system, we can divide this long historical period into the following development stages:
1. Warring States Period. This is an important stage in the transition from early customary law to written law. The Warring States period was in the second half of the first great turmoil and great change in the history of China. Many important achievements of China's social transformation and many ideological and cultural essences came from this period. Compared with the Spring and Autumn Period, the focus of social change in the Warring States Period was "standing". In terms of the legal system,
"Li" is mainly manifested in the new legal system with written law as the main body, which has been established in a wider scope and in a more mature form. Among them, the Code formulated by Wei in the early years of the Warring States Period was a representative achievement of the legal reform movement in the Warring States Period. In addition, in the whole ancient society of China, the main political and legal thoughts of Confucianism and Legalism, the two most influential academic schools, also matured during this period and had a wide influence on the political arena.
2. Qin and Han Dynasties. This is the period when the legal system of ancient written law in China was completely established. The time includes the historical period from 22 1 year BC to 220 AD. In 22 1 BC, Qin Shihuang unified China, established the first unified autocratic dynasty characterized by centralization in China history, and established the traditional political pattern and model of China for thousands of years. In terms of guiding ideology, the Qin Dynasty followed the legalist theory of "rule of law" and "severe punishment" and carried it out thoroughly in practice. The legal system of Qin dynasty naturally has obvious legalist color. In the history of China, the Warring States and the Qin Dynasty were the most active periods of legalist thought, and legalist theory was fully practiced in the Qin Dynasty. Therefore, from the perspective of the whole legal history of China, the characteristics of the legal system in the Qin Dynasty are extremely distinct. Since the bamboo slips of the Qin tomb in Yunmeng Shuihudi were unearthed, many previously unknown laws of the Qin Dynasty reappeared in front of the world. From these precious cultural relics, we can see that the concept of rule of law in Qin Dynasty was very profound and the legal system was very strict.
During the Han Dynasty (Western Han Dynasty and Eastern Han Dynasty), the ancient Chinese legal system was further developed on the basis of the Qin legal system. On the whole, the legal system of the Han Dynasty showed the characteristics of stages. In other words, the legal system of Han Dynasty can be divided into two periods in style. Before Emperor Wu of the Han Dynasty "ousted a hundred schools of thought and respected Confucianism alone", it was mainly "Han inherited the Qin system", that is, some reforms were carried out within the legal framework left by the Qin Dynasty, forming a fundamentally different legal system from the Qin Dynasty. In the later period, it means that after Emperor Wu of Han Dynasty "ousted a hundred schools of thought and respected Confucianism alone", he accepted Confucianism in guiding ideology, making Confucianism an official and orthodox political theory. Since then, the legal system of the Han Dynasty has been "Confucian" in theory and system. The legal system after "Confucianism" is different from the legalist laws in Qin and early Han dynasties in many aspects. Moreover, the ancient Chinese laws after the Han Dynasty gradually developed along the direction of Confucianism in the Han Dynasty. Therefore, the legal system of the Han Dynasty also has an important position in the legal history of China.
3. Three Kingdoms, Jin Dynasty, Southern and Northern Dynasties. This is the stage of the rapid development of China's traditional legal system. The period of the Three Kingdoms, the Jin Dynasty and the Southern and Northern Dynasties was the second turbulent period in China's history, including the historical period from the establishment of Cao Wei in 22 1 year to the end of the division between the north and the south and the reunification of China in 58 1 year. During this period, although the regime changed rapidly and the situation remained turbulent, the legal system still developed greatly in the turbulent years. First of all, the legislative technology has been continuously improved, and the legal theory has also developed significantly. Secondly, the specific legal system of Confucianism has been strengthened. Some important systems, such as "Eight Discussions", "Official Affairs" and "Ten Crimes", have become mature systems. The development and progress of legal system in this period laid an important foundation for the maturity of ancient Chinese legal system in Sui and Tang Dynasties.
4. Sui and Tang Dynasties. This is the mature and stereotyped stage of China's traditional legal system. In time, it covers the period from the establishment of the Sui Dynasty in 58 1 year to the establishment of the Song Dynasty in 960. Sui and Tang Dynasties were the heyday of ancient China society. After the Xia Dynasty, after nearly 3,000 years of accumulation, all components of China ancient society have matured, and various social systems have entered a relatively harmonious stage. Therefore, the political, economic and cultural aspects of the Tang Dynasty reached the peak of ancient China. The same is true of the legal system in this period. Based on thousands of years of legislative and judicial experience, the legislative technology of Sui and Tang dynasties was further improved, and excellent codes represented by Tang laws came out one after another. Judging from the legal content, the legalization process of Confucianism, which began in the middle of Han Dynasty, lasted more than 800 years and finally achieved fruitful results in Sui and Tang Dynasties. With this as a symbol, the process of the integration of morality and law in ancient China, that is, the so-called "combination of etiquette and law", was basically completed, and some basic ideas of Confucianism were skillfully integrated into the written code. At the same time, the traditional society of China was "moralized by law and legalized by morality", and after thousands of years of practical exploration, the judicial system and litigation system in ancient China also reached a high level at this time.
In particular, the legal system of the Tang Dynasty, represented by the Law of the Tang Dynasty, reached the highest level of the ancient legal system in China. The Law of the Tang Dynasty has also become the representative work of China's ancient legal system and Chinese legal system, and occupies an important position in the history of Chinese legal system and the world legal system. Therefore, the legal system of the Tang Dynasty and a brief exposition of the laws of the Tang Dynasty are naturally a key point in the study of the history of Chinese legal system.
5. Yuan, Ming and Qing Dynasties. This is the period when China's ancient legal system moved towards extreme autocracy. In time, it includes the historical period from the establishment of the Northern Song Dynasty in 960 AD to the Opium War in 1840 AD. After the Song Dynasty, the social structure of China, including the legal system, was still greatly developed within the basic framework established by the Sui and Tang Dynasties. During the Song, Ming and Qing Dynasties, the basic code was still the foundation of the national legal system. The basic spirit and framework of national laws are still determined by the basic codes such as Song Criminal Law, Daming Law and Qing Law, but laws, regulations and other legal forms play a practical and specific normative role in judicial practice. In the late feudal society, "law" stipulated the general principles, while "effect" and "example" were supplemented and revised in many ways. As a major principle, "law" is relatively stable and rarely amended, while subsidiary legislation that plays a practical role is frequently amended because of time and place. This so-called "law is a hard-won rule, and examples should be made good use of" (Zhu Song's Preface to Criminal Cases in Qing Dynasty). This change in legislation shows that after thousands of years of accumulation, by the late feudal society in China, the rulers had been able to use various legal means to adjust the society more skillfully. At the same time, since the "An Shi Rebellion" in the Tang Dynasty, China's ancient society began to decline from prosperity, and the inherent contradictions of some feudal social systems intensified, which led to the distortion of the whole social system. With the continuous strengthening of imperial power, the focus of China's traditional legal system began to tilt in the direction of maintaining imperial power and strengthening autocracy. The compilation effect of the Song Dynasty, the rule of courtiers and eunuchs in the Ming Dynasty and the popular "literary inquisition" in the Ming and Qing Dynasties are all concrete reflections of this aspect. In addition, the laws that discriminated against ethnic minorities in the Yuan and Qing Dynasties and were applicable to ethnic minority areas were also a feature of the legal system in this period.
Third, the modern legal system
The third part of China's legal history is the modern legal system. 1840 after the opium war, China society began to suffer a series of aggression and bullying by western powers. In the midst of internal troubles and foreign invasion, China society has also begun a difficult transformation. From the legal point of view, the outstanding feature of this transformation is that the traditional legal system and legal concept in China, which existed for thousands of years, began to disintegrate, while the legal system in the modern sense began to grow hard in China. Generally speaking, the legal changes in modern China can be roughly divided into the following stages:
1. Reform and revision of laws in the late Qing Dynasty. In China, it is customary to call the period from the Opium War in 1840 to the demise of the Qing Dynasty in1910/year "late Qing Dynasty". After the Opium War, China changed from a sovereign and independent country to a semi-feudal and semi-colonial society. During this historical period, although the Qing government apparently maintained its rule over most parts of China, it actually lost its territorial sovereignty (such as in Hongkong) or its jurisdiction (such as consular jurisdiction in China) in some coastal areas and trading ports. The establishment of consular jurisdiction in China by western powers is a legal manifestation of the semi-colonial society in China. At the same time, after 1840, especially in the last decade of the Qing government's existence (that is, 190 1 to 19 1 1), the Qing government was forced to carry out a large-scale legal reform and introduced a large number of modern western legal theories and laws. Since then, China's legal system has embarked on the road of modernization.
The legal reform in the late Qing Dynasty was an important turning point in the history of China's legal development. Since then, China has realized the transition from ancient legal system to modern legal system. Therefore, this part of the political reform in the late Qing Dynasty should also be one of the key points in studying and studying the history of Chinese legal system.
2. The period of Nanjing Provisional Government. 19 1 1 In June, the famous Xinhai Revolution broke out in China. 19 12 June 1 day, the provisional government of Nanjing, Republic of China was proclaimed. Under the leadership of the revolutionary faction with Sun Yat-sen as the core, the Nanjing Provisional Government carried out a series of legislative activities in a short period of time, which initially laid the legal foundation in the Republic of China.
3. Beiyang government period. 19 12 In March, Yuan Shikai usurped the political power of the Republic of China and established the Beijing government of the Republic of China controlled by Beiyang warlords in Beijing, which people used to call "Beiyang government". Beiyang government is a warlord regime. In order to meet various needs, Beiyang government also carried out legislative activities. These legislations objectively provide certain favorable conditions for the legal system construction of Nanjing National Government in the future.
4. During the period of Nanjing National Government. 1927 to 1949 was the ruling period of Nanjing National Government established by Kuomintang. After the establishment of Nanjing National Government, it also carried out extensive legislation, promulgated a large number of laws, decrees, precedents and explanations, and formed a "six-law system". However, the legal system of the Kuomintang regime has obvious duality characteristics. Even though it is perfect in legislation and standardized in the field of common law, it is extremely dark in judicature, especially in the field of special law, which adopts naked tyranny.
In the usual system of China's legal history, the legal system established by China's * * * production party in various revolutionary base areas after192/kloc-0 and the legal development after the founding of New China are also important components. Among them, the China * * * Production Party creatively carried out a series of legislative activities in various revolutionary base areas during the new-democratic revolution, and achieved fruitful legal achievements and left many profound lessons.