| Power is one of the essential elements of a country, thus whatever nature of a country is,the study and practice of its power movement pattern has been one of the most importantcourses. The power in our ancient society was in high degree of concentration, and especiallyafter the establishment of Qin Empire, the Emperor held the national recourses in his ownhand. The Emperor, on the one hand owed the exclusive power, on the other hand cannot keephis hands on all affairs big or small, so he cannot but rely on a large bureaucratic groups,which relates to the differentiation of power after the concentration, but this differentiation islimited. As the power source is controlled in the hands of the emperor, he can withdraw thepower given to others at any time. With the continuous expansion of the bureaucratic groups,as well as the increasing complexity and the expansion of the distribution of power, thecontinuous strengthening of constraints on the bureaucratic groups has become an importantwork in an absolute monarchy country. There are two elements concluded in this constraint,one is the "public", the other is "private." As for the latter, its meaning is self-evident, becauseit cannot be avoided that the power controller pursuits private gain for themselves or others byvirtue of their status or authority; As for the former, it relates to the conduct under the dutiesof officials and does not involve self-interests, which has become an important factor leadingto the state administrative inefficiency and malfeasance. This makes the adjustment of China’sancient law fall into two categories due to the two different objects. One part of theadjustment is to adjust the social life of ordinary people; the other is the behavior of officials.In the latter case, it can be divided into two parts, one is the official acts of the officials, andthe other is the non-official acts. In the course of the exercise of authority, there arosepunishment of varying degrees due to some fault, if for the public, and selfless, it will lead tothe public crime; or if for selfish, it will be the private crime. Of course, the private crime alsoincludes the crimes committed during the period of non-performance of public duties. Publiccrime existed in the beginning of the establishment of a country, but the concept was not clear. Han, based on the former dynasties especially the Qin Dynasty, first proposed the concept"public negative", which is similar to the concept "public crime". After the development ofSanguoliangjin and Northern and Southern Dynasty, the system public of crime was formed inthe Sui and Tang dynasties. Since the public crime is an important regular national legalsystem of absolute monarchy dynasties in China, to study it comprehensively from the aspectsof static and dynamic is really necessary. In the static case, it includes the concept of a publiccrime, legislation, subjects, charges, etc.; In the dynamic terms, it includes the publicproceedings, trial, execution and so on. Although the system of public crime of the MingDynasty is on the basis of the Tang Dynasty, but it is different from the Tang Dynasty. Sincethe Ming Dynasty has been in the decline of absolute monarchy period, along with thecomplex social conflicts is the continued strengthening of social control of the emperor. Andextreme centralization of power has led to the breeding of series of political issues such as theautocracy of the cabinet and the eunuch. To research public crime in such context, will bothbe good for the presence of the sound protection function of monarchy authority of theabsolute monarchy, as well as the presence of favorable factors and unfavorable factors topromote or prevent the good functioning of the system of public crime. And in turn it is one ofthe important aspects to study the pros and cons of the Ming Dynasty and the whole system ofabsolute monarchy.In addition to the introduction and the concluding remarks, this paper can be divided intoeight chapters. Specific sections are as follows:The introduction includes three parts: the significance of this topic, the present status ofthe study and research methods.Chapter â… is the introduction to the public crime. First, taking "public" content of "publiccrime" as the starting point, it clarifies the "nuclear meaning" of public crime from a historicalperspective, and discuss the evolution of the meaning of the public crime, then interprets itsconcept. Secondly, it demonstrates the subjective and behavior of public crime. Because thesetwo issues are not only the basic point for study, but also the pending doubt, there is the needfor proofing. It is obvious that the concept of "public" in public crime does not refer to public career or the world business, but have a very strong political overtone. It is more amanifestation of the monarch’s personal and family business, which in turn determines thenature of the crime of public. Thus it seems that the definition of public crime in Ming law isvery appropriate. Generally public crime is considered is a typical intentional crime for theintentional fault, but it becomes difficult to justify the crime when some officials commit acrime because of "the-doctrine-of-mean, laziness". Therefore, the public crime should fall intotwo kinds: intentional and negligent. But the intention here is different from the deliberationin the theory of the traditional criminal law. The intention in public crime refers to the acts ofpublic officials, rather than results. The acts of public crime should include two types knownas acts and omissions, which is the same as an ordinary crime.Chapter â…¡ is concerning with the evolution of the system of public crime. Tracing itssource, it is known that the "public crime" appeared as early as when the country established,but did not form an independent concept and system. During the period of Qin, Han, thesystem of public crime had already formed. After experienced the development ofSanguoliangjin and Southern and Northern Dynasties, it became stereotypes in Tang Dynasty.The system of Ming Dynasty was in the succession of the previous dynasties.Chapter â…¢ is the legislation of public crime of Ming Dynasty. Since as a legal system,legislation is the necessary path to obtain official recognition. The legislative activities arequite frequent in the early Ming Dynasty, and system of public crime is able to be establishedsystematically during this period. There are four major legal form included in Ming Dynasty:law, order, ordinary, enjoin, which also goes for primary legal forms of the system of publiccrime in the Ming Dynasty.Chapter â…£ is the subjects of public crime of the Ming Dynasty. As for the public crime,the subjects are bound to officials who obtain certain public powers. Ming continues thetradition of the previous generations; it divides the subjects into two categories: officials andminor officials. These two subjects are not equal, and their different political status isexpressed from the aspects such as the way of application, appointment and promotion,management etc. This inequality is also an important factor inducing minor officials committing a crime. In addition, the identity of a borough and tithing chief is quite interesting;we can see that they are not the subject of public crime by the argument.Chapter â…£ and Chapter VI is criminal charge public crime of the Ming Dynasty. Themain charges of the Ming Dynasty can be found in the "Great Ming". The system of the GreatMing is divided into six parts: officials, family, ceremony, soldiers, criminals, working. Andthe six criminal charges firmly attaches to the post of six departments, the subject of publiccrime charges of the Ming Dynasty can be presented one by one taking six departments as thedividing line. In addition to the main charge, there are still big amount of public crime in theMing practice, seen in the "The history of Ming Dynasty","The Reality of Ming Dynasty "and other historical materials.Chapter â…¦ is the procedure of public crime of the Ming Dynasty. On the basis of theconclusion of the previous generation, the Ming Dynasty creates a rather complete set ofsystem of public crimes proceedings. This includes the filing litigation of public crime, thehearing and the specific principles, the penalty system of public crime. This section is the coreof the study of the operation of the system of public crimes of the Ming Dynasty.Chapter â…§ is the assessment of the system of public crime of the Ming Dynasty. Sinceas a legal system, it includes both static and dynamic content. As for the static terms, thelegislature, by means of comparing with Tang’s Law, which is the traditional Chinese model,it is found that progressive aspects of the system of public crime of the Ming Dynasty aremainly reflected in the legislative system, charge system and the penal system. As for thedynamic terms, it provides assessment on favorable factors and unfavorable factors topromote or prevent the good functioning of the system of public crime under the overallsituation. The system works well in the early Ming Dynasty, which plays an important role inprotecting and promoting the improvement of administrative efficiency and elimination ofofficial management. In the late Ming, along with continuous decline of the entire politicalculture and corruption of officialdom, honest and diligent officials are marginalizedeverywhere, and flattery officials have become very popular. Therefore, the operation of thesystem of public crimes is hindered by a number of negative factors. Of course, the operation of the system of public crimes is also related to some unfavorable factors such as the rule ofman and other implicated system and so on.The last part is the concluding remarks. As a traditional legal system, the study andassessment on the system of public crimes should be placed in a particular historical context.In the Ming Dynasty, especially in the mid-and late, although so hampered by a number offactors that was not well run, it still plays an important role in clarifying the officialmanagement and improving administrative efficiency. As for today, it is worth consideringwhether we can obtain inspiration to solve the problem from the system of public crimes inancient China in the face of the absence of sufficient effect of administrative penalties. |
