A Study Of Case-based Amendments Of Li Mechanism In The Qing Dynasty

As a specialized activity that uses the law to deal with specific cases,the judicial system has an indelible effect on the improvement of the law.It can not only get the latest changes in the social situation through the trial of the case,but also promote the law to keep pace with the times.It can also find out the defects of existing laws by means of an endless stream of cases and ensure the filling of legal loopholes in time.The effects brought by the Judiciary in the Qing Dynasty to the perfection of the law was mainly manifested in the case-based amendments of Li,that is,based on a certain judicial case,the ruler was prompted to amend the relevant regulations in The Qing Code.This is essentially a process of judicial creation of laws.New rules are produced in judicial practice and gradually become codified into national codes and become formal legal provisions.Taking the case-based amendments of Li mechanism in the Qing Dynasty as the research object,it has great theoretical and practical value to understand the judicial status of the Qing Dynasty,the legal creation mechanism,the ins and outs of the regulations,and even reveal the unique cultural rules of China's judicial creation.The dissertation is mainly divided into the following five sections.The first section is the summary of case-based amendments of Li mechanism in the Qing Dynasty.After four dynasties,including the Shunzhi,Kangxi,Yongzheng and Qianlong,The Qing Code was finally completed,in which the Lv was forbidden to be changed,and the Li was revised regularly.It is undoubtedly beneficial to promote the case-based amendments of Li,and it has gradually become a common legal amendment mechanism.The existing historical materials of the Qing Dynasty have detailed records of the case-based amendments of Li,and the academic records like Encyclopedia of the Qing Code and Codification of Li of the Qing Dynasty do research on each Li amended based on cases in The Qing Code.The historical material about cases like New Collection of Criminal Defenses and Three Collection of Criminal Cases record the specific content of the cases leading to amendments of Li and the process of argumentation.Judging from historical records,case-based amendments of Li mechanism involve a number of confusable basic concepts,so they will be clarified together.The second section states the legal source foundation of the case-based amendments of Li mechanism of the Qing Dynasty.Why did such a legal creation model appear? To a great extent it benefited from the legal source structure of the Qing Dynasty.In the process of the evolution of the legal source structure for thousands of years,the relationship between statute law and cases has been ups and downs.Going through three stages of agency,auxiliary and integration,the legal source structure consisting of laws,regulations and cases has finally been formed in the Qing Dynasty.Among them,Lv and Li are formal source of law,which are the legal basis for the judicial trial in the Qing Dynasty;the case is informal source of law,which assists the application of Lv and Li and provides material for amending Li.The interaction between formal source of law and informal source of law laid the foundation for the case-based amendments of Li.The third section mainly discusses with the procedural decomposition of the case-based amendments of Li mechanism of the Qing Dynasty.As a kind of legal creation,the case-based amendments of Li are bound to have complicated procedures,the procedures are highly coincident with the trial procedures of the criminal cases in the Qing Dynasty.From the local to the central to the emperor,it is possible to start the case-based amendments of Li at any of these points.Generally,the local governor,the general,the criminal department and even the emperor himself make the proposal.As for the review procedure,it is based on the start-up.The closer to the authoritative core,the more simplified the review procedure.If the local starts the procedure,it will face the revision both from the criminal department and the emperor;if the criminal department starts the procedure,it merely requires to get the emperor's approval.After the approval of the emperor,the formal legislative process will begin,and the official of Lv and Li will codify the new rules into The Qing Code in accordance with its own working procedures within the established time limit.The fourth section introduces the types of regulations amended by cases and legislative technology.Taking the legal methods used by regulations as the dividing criterion,case-based amendments of Li can be divided into two types,interpretative regulations and retrievable regulations.The interpretative regulations are mostly interpretations of the law and the existing regulations,of which the overall number is small.The methods used cover the semantic interpretation,teleological interpretation,jurisprudential interpretation and so on.The retrievable regulations are adjustments and supplements of the law and the existing regulations,which are the majority of the case-based amendments of Li.The methods used include application of analogy,purposive expansion,purposive reduction,creative supplements and so on.Regardless of the type of norm,it reflects the legal modification techniques of the legislators of the Qing Dynasty.The structure,textual expression and logical structure of the regulations have rules to follow.The fifth section is the legal cultural analysis of the case-based amendments of Li mechanism of the Qing Dynasty.Through the presentation and essence of the case-based amendments of Li of the Qing Dynasty,it can be found that there are obvious traces of cultural influences behind it,which reflect the unique legal cultural rules of ancient China.Legal cultural rules are highly stabilized and mandatory.Even if the dynasty changes,it cannot resist its binding role at the level of conscious awareness.Even after entering the modern society,as long as the ethnic groups have not changed,these long-standing cultural rules will continue to have effects.The prejudication system of the Republic of China and the contemporary case guidance system are empirical evidence,and both of them draw to some extent the legal cultural essence of the case-based amendments of Li.