On The Substantiablity Of Traditional Chinese Criminal Judicature

Reasons of the study:1 Traditional Chinese spirit of substantiality still plays a great role in modern society today, even though the legal content and form are becoming more and more westernized. Laws can be transplanted, transformed, and even entirely westernized, but what can not be transplanted and easily changed in a short time is the social environment of law and the ethical influence, in particular the ethical culture and spirit. In another word, the deep-rooted spirit of substantiality which has come down from ancient China, continues to remain in people's mind and dominate the way of asking questions and settling problems, although the law we are executing is westernized and formalist.2 The criminal judicature in ancient China is chosen to be the field of study, because criminal judicature has always been not only a process and a field of crime investigation for a state, but also the final line of defending the society and personal rights and interests and the final way and method of settling social contradictions and conflicts, even in ancient China. As a result, the way and the result of crime investigation, especially the process of treatment for individuals who are regarded to conflict with a state, radically determine and influence the value orientation and realization degree of social order, justice and harmony. Besides, they profoundly and directly transmit the general style and spirit of criminal judicature, and exert a subtle influence on the spiritual life from every part to the whole society.3 Systematic study has not yet been done on the spirit of substantiality in traditional Chinese criminal judicature, and not many fruits have been reaped on the study of traditional Chinese judicial spirit, especially its trunk-the spirit of criminal judicature. Up to now, no formed and systematic study results can be found concerning the definition of the spirit of substantiality in traditional Chinese criminal judicature, its conformation, and how it influenced and controlled the criminal execution and social life in ancient China, consciously or unconsciously. No systematic studies have been done on the spirit of substantiality in traditional Chinese criminal judicature from the perspective of historical demonstration.Significance of the study:1 Judicial activity is the token and footnote of spirit and culture of a nation, and never oversteps its bridle. Present studies indicate that much stress was layed on criminal law in ancient China. There was a characteristic of "Extensive crime" in the processes of rulers settling social contradictions and conflicts. To explore and induce these changeless spirits and conceptions which dominate the main contents of criminal judicature in imperialist China, attention shall be paid to practical characters and morals which settle social problems through criminal law rather than to study its symbol merely.2 Facing problems in Western formalist criminal judicature, we cannot help wondering that the judicial system under the so-called modern form of the rule of law and judicial authority might not be the ultimate and ideal legal civilization. Instead, the oriental substantial spirit of criminal judicature represented by China shall be given enough room to develop and play it's duly role. Therefore, this study is both theoretically and practically significant to the construction of China's legal blueprint with "local resources".Main contents of the dissertation:1 Meaning and context the substantiality. Substantiality of criminal judicature is closely related to the history and tradition of a nation, and is the value pursuit and value mode of law determined by cultures and customs. It is an integrated value system of collectivism, purposivism and utilitarianism, with a view to the realization of the ultimate goal (imperial power, social order, justice, etc.).2 Theoretical foundation of the spirit of substantiality in traditional Chinese criminal judicature. To probe into the main spirit of traditional Chinese criminal judicature, the foremost priority shall be given to the general patterns and characteristics of traditional Chinese laws to interpret the substantial spirit in them. The general patterns and characteristics can be perceived mainly from the basic attribute of traditional laws and etiquettes, and the relationship between law and moral, especially the influence of law and moral on criminal judicature.3 Demonstrative induction of the spirit of substantiality in traditional Chinese criminal judicature. The core of this dissertation is the demonstrative explanation and systematic generalization on the substantial spirit in ancient criminal thinking and criminal operations. It is divided into five parts as follow:the reflection of purpose conformity and its positive influence in traditional criminal operations, the embodiment of anti-individualist collective thinking in asserting and disposing crimes, depth pursuit of individualization in criminal judicature, the spirit of truth pursuing of criminal judicature, and emotional spirit in the logical reasoning of criminal procedure.4 The contribution of "the rule of man"-the inner initiating force—in traditional Chinese substantial criminal judicature. For one thing, under the cultural context of etiquette and law, the execution of law by non-professional legal officers who were well-read was actually merging confucianism and law. For another, the class of scholar-bureaucrats in history who possessed the spirits of humanism, talent and honor played a crucial role in the process of the implementation of laws and theories. Their proper operations made the criminal trial results in conformity and widely accepted.5 Contradiction between substantiality and formalism in criminal judicature, namely, the difference between legal provisions and actual executions. It is necessary to discuss the contrdiction between expression and practice in traditional Chinese criminal judicature, to find either the essence or the disadvantages of traditional spirit. In this dissertation, the inner structural characteristics of traditional criminal spirit are discussed, and it concludes to find the dialectical contradictions and conflicts, faithfully depict traditional criminal judicature, and construct the institutional structure and principles to sublet traditional criminal judicature. Analysis and discussion will be carried out from such perspectives as substantiality and incomplete formalist operation, and contradiction and difference between legal provisions and actual execution.Innovative points:1 systematic elaboration has been done on the influence of law and morality on criminal judicature.2 the substantial spirit of traditional Chinese criminal judicature is systematically categorized for the first time.3 the judiciary reason why traditional Chinese criminal judicature aimed at truth is elucidated.4 the reasoning spirit of logical thinking in criminal judicature is proposed, and historical demonstration and analysis are made.5 A new idea is proposed that the inner initiating force is the tradition of "the rule of man", and a thorough analysis is made around the contribution of scholar-bureaucrats to traditional Chinese criminal judicature.6 the contrdiction between expression and practice in traditional Chinese criminal judicature, namely, the contradiction between substantiality and formalism in criminal judicature, is discussed for the first time.