| The prejudication is a very important legal form in the traditional law of China.It was so flexible,accordant,and intuitionistic,which are the merits that the statute law had not possessed ,that it could complement,diversify,develop,and perfect the statute law.The prejudication means the thing in the past of judgement case was as the basis , standard of the funeral affairs, its appellation different in different historical era, but the function played is the same , all the important supplement of the written law.From the 20th centuries, the prejudication,which had played an importend role in the ancient Chinese judicial pactice,has been neglectedBut what on earth the prejudiation could not become the official legal source of Chinese law? The writer will analyse prejudication of Ming Dynasty and Qing Dynasty,but Ming Dynasty and Qing Dynasty with leading case for famous, so researching leading case can understand its main and objective reason in the operation in the judgmentName of " leading case ", appear already in Ming Dynasty at least.Those during the Qing Dynasty was generally considered as the precendents set up by the judicature,bureaucrats group based on the trial, narrow sense " example have specially piece, quote than add case planned definitely to reduce all"; Include all judicial authority (mainly punishment department) old regulations sanctioned or handled on the senior level on broad sense. Among them, some are authorized the homicide case under by autumn, is not determined in the whole country as " passing through ", but because judgement their emperor look over, regarded as not" correct" already, in applicable judicial authorities at all levels often too in fact.The so-called leading case,be the judicial precedent a kind of, mean according to the case of verdict, then point to have not yet a case example for go through, the case example that have already sentence to produce effect.As the ruler,Rex's atiitude towards the leading case. was ambiguous.This can be seen from the three periods of development of the leading case. And just because of this situation,in the judicial practice in Qing Dynasty,leading case were popular and had great effects.From the forewords of some collections of criminal case,leading... |
