Study On The Commutation Of Punishment By Law Of The New Criminal Code Of Qing Dynasty

Penalties in China's history had been dominated by severe penalty.It was not until the legal system reform in the late Qing Dynasty that the structure of severe penalty was adjusted.As an important result of which,New Criminal Law of Qing obviously reflected the changes in the penalty structure system.The new criminal law absorbed western penalty principles and thoughts,which showed the protection of the human rights of criminals and no longer regard criminals as the object of penalty.Therefore,a penalty system centered on freedom penalty was established in the penalty setting,replacing the feudal penalty system centered on body and freedom penalties.Compared with the ancient penalties in China,the new criminal law showed the development trend of light penalty,which was a westernized concept,meaning that light penalty should be applied as many as possible in legislation and judicature.Although ancient China was characterized by severe penalty,the overall development trend of penalty was from server to light,including slavery penalties in Xia,Shang and Zhou dynasties,transitional penalties in Qin,Han and Jin dynasties,especially penalties in Sui and Tang to Ming and Qing dynasties.Through sorting out the penalties in different periods,the development process of penalty in ancient China was understood.New Criminal Law of Qing embodies the idea of light penalty in different degrees in the general provisions and the setting of specific charges,established a modern penalty system.It reformed the death penalty,deleted the inhuman ways of execution,established hanging as the only death penalty,replaced physical penalties such as flogging and caning with property penalty,inherited,developed and perfected the freedom penalty.The light penalty of the new criminal law was more reflected in the sentencing system,which added the plots of relative legal and discretionary sentences,the probation and parole execution systems that embody the humanitarian spirit.However,in the reform,recidivism and voluntary surrender system lost the traditional character of light penalty in China.Murder,mayhem,burglary,robbery and rape crimes,as the focuses of both new and old criminal laws,also reflected the trend of light penalty in the legal system reform in the late Qing Dynasty.There are many reasons for the trend of light penalty reflected in the penalty system and institution of New Criminal Law of Qing.After seizing China's consular jurisdiction,the West promised to return it back to China as long as China carried out criminal law reform,which directly stimulated the light penalty reform.Protecting human rights is one of the important value orientations of the preparatory constitution.As an important component of the preparatory constitution,the penalty system of New Criminal Law of Qing would inevitably reflect the trend of light penalty.As a minister of law revision,Shen Jiaben not only inherited the traditional Chinese benevolent government thought but also learned to accept the western human rights thought,thus having an incalculable influence on the light penalty of the New Criminal Law of Qing.In the communication between China and the West at that time,people all realized the cruelty and backwardness of the traditional penalty to varying degrees.Therefore,it was people's wish and prayer to transfer to a light penalty system.Due to historical limitations,the new criminal law also had some shortcomings in terms of light penalty,from which we should learn some lessons.