Study On The Concept Of Legitimacy Law In Justifiable Defense Cases In The Qing Dynasty

In recent years,with the emergence of Yu Huan’s case and Kunshan driver’s chopping and anti killing case,the self-defense system has once again become a social hot spot.It is generally believed that China’s current self-defense system mainly draws lessons from the relevant systems of western countries,and does not reflect the light of self-defense civilization in the process of Chinese traditional culture.However,looking at the legal process and judicial practice in ancient China,although there is no name of self-defense,it has long been the reality of self-defense.In the early stage of China’s traditional feudal society,there were similar provisions on justifiable defense.Like other relevant systems,the provisions on justifiable defense were gradually institutionalized and improved with the development of social productive forces.The Qing Dynasty was the peak of the development of feudal society in China,and its justifiable defense system absorbed the essence of successive dynasties.It is of great theoretical and practical significance to explore the origin,legal texts,cases and the concept of legitimacy value held in the Qing Dynasty in order to improve China’s current self-defense system.The self-defense in Qing Dynasty did not form a complete system.The relevant provisions on self-defense are scattered in the laws and regulations of the Qing Dynasty,and the typical cases in the catalogue of criminal cases also standardized the specific application of self-defense.Combing the relevant laws and cases of the Qing Dynasty,the types of justifiable defense can be summarized as family defense,anti rape defense and duty defense.Family defense includes the defense of the inviolability of the house and the defense of the beating of the father and ancestor.From various types of defense,we can get a glimpse of the concept of legitimacy value upheld in the laws and regulations of the Qing Dynasty.First,the defense against the inviolability of houses is mainly aimed at the defense of "thieves",which reflects the attitude of the Qing government towards "the prevention of severely punishing thieves",and has the legitimacy of protecting housing safety and personal property;Second,the defense of killing adulterers is divided into defense against rape,attempted rape and adultery,which reflects the adherence to the traditional ethical and moral values;Third,the beating and defense of their fathers and grandparents is the right of their descendants to rescue their parents and grandparents,which reflects the ancient traditional value of "all goodness and filial piety first" and the recognition and maintenance of Confucian loyalty and filial piety at the legal level;Fourth,the arrest and defense of criminals is the defense of officials performing public duties when they will infringe on criminals,which reflects the maintenance of national public power.In view of this,in line with the attitude of "taking the essence and removing the dross",we need to pay attention to the protection of ethical family ties in the future legislation and judicial practice of self-defence,pay attention to the protection of citizens’ right to live,pay attention to the balance between fighting crime and restricting rights,and attach importance to the convergence of the concept of self-defense between the excellent traditional legal culture of China and the modern rule of law.