Research On The Sentencing By Analogy In The Qing Dynasty ——Take The Homicide Cases In The Bo An Hui Bian And Xing Bu Bi Zhao Jia Jian Cheng An As An Example

The system of sentencing by analogy in the Qing Dynasty was one of the most mature systems in imperial China.It originated from the legal concept of "appropriate sentencing",and also effectively guaranteed and realized the substantial justice.Although the system was abolished at the time of the reform and revision in the late Qing Dynasty,its experience and wisdom accumulated to ensure the balance of crimes and sentences may be used for reference to solve the judicial problems of unfair sentencing today.Therefore,this study takes the sentencing of homicide cases in the Qing Dynasty as an example,adopts the research paradigm of "practical history",comprehensively displays the practical process of sentencing by analogy,deeply excavates the punishment wisdom behind it,and provides traditional experience and enlightenment for the reform of sentencing standardization in China today.First of all,the system of sentencing by analogy in the Qing Dynasty can be traced back to the Western Zhou.The core lies in ensuring the substantial justice when "There is no provision of law".If the judge does not follow the legal procedures,arbitrarily abuse analogy to destroy the appropriate sentencing,will bear the corresponding legal responsibility.Secondly,take the sentencing practice of homicide cases as an example,the judges,under the guidance of the concept of "appropriate sentencing",takes the law as the comparison standard,mitigating penalty of the light crime and increasing of penalty of the heavy crime,to adjust the unbalanced relationship.The whole process of analogy is carried out according to law,so the judges in different regions and periods can still make consistent and predictable sentencing decisions for the criminal situation of "no plain provision of the law",thus reflecting a traditional substantive rationality.Thirdly,this analogy in judicial practice also applies to the creation of making cases.In view of the criminal circumstances（mainly moral circumstances）that affect the determination of the criminal relationship in reality,the emperor,the ancient supreme judicial officer,adjusted the legal punishment through comparative thinking techniques to effectively ensure the substantial justice.At the same time,this new criminal relationship was determined in the form of legislation,so as to integrate punishment with education.Based on this,we can use "practical moralism" to summarize the legislative innovation.finally,behind the sentencing by analogy is essentially a kind of legal thinking based on the facts,comparing the law and facts,and reducing the punishment according to the comparison results,to ensure the substantial justice,Which not only can provide a theory for reform of sentencing standardization,can inspire reformers to sentencing practice,establish a unified penalty standard,effectively limit the judges sentencing discretion,Let the traditional legal wisdom blossom in modern times.