In the Qing Dynasty more than 110 years ago, there were a number of legal issues, including whether the punishment for parents killing their children should be the same as for children killing their parents, whether the punishment for a husband beating his wife was the same as for a wife beating her husband, and whether adultery should be convicted.
and whether a person's father and elder brother should be jointly and severally liable for robbery or theft should be punished, sparked widespread discussion and heated debate inside and outside the government and the opposition.
The solution to these problems has made the transformation of the legal system of traditional Chinese society from traditional law to modern law, and has also made it possible for China to take back consular jurisdiction from the hands of Western powers.
These problems arose because since the Opium War, the Western powers believed that China's laws were unsound and unreasonable, barbaric and backward, did not meet the standards of Western civilization, and that the judiciary was seriously corrupt and could not be tried fairly.
Therefore, they signed an unequal treaty with Qing **, obtained consular jurisdiction, and stipulated that in the future, the illegal and criminal acts of people from their own country in China would be dealt with by themselves, and Qing ** had no right to judge.
The solution of these problems has also promoted the reform of China's traditional social legal system, which has enabled China to begin to transform from traditional law to modern law.
This is an important milestone in the development of Chinese law, and it also provides us with important materials for in-depth research on China's legal history and the changes in the legal system.
With the advancement of China's modernization, international law has gradually spread in China, and the consciousness of national independence has gradually awakened. However, the existence of consular jurisdiction has become the main culprit in undermining national sovereignty, which makes it impossible for Qing ** to sit idly by.
The existence of consular jurisdiction has made some foreigners act arbitrarily in China, because they can enjoy privileges on Chinese soil and are not subject to Chinese law.
This not only led to frequent conflicts between Chinese people and foreigners, but also caused the people's dissatisfaction with the Qing Dynasty to grow. People believe that this is evidence that the Qing ** colluded with foreigners to jointly suppress the people.
In addition, the revolutionaries ran periodicals in the concession, criticized **, and propagated the revolution, which seriously threatened the rule of the Qing **. However, due to the existence of consular jurisdiction, Qing ** could not interfere and could only watch all this happen.
At the end of the 19th century and the beginning of the 20th century, in order to eliminate the reason for the foreign powers to retain consular jurisdiction, and to integrate with international standards, the Qing Dynasty decided to reform its own laws. This effort was successful.
For example, in 1899, Japan peacefully withdrew the consular jurisdiction of the Western powers in the country by reforming its laws.
In addition, after 1900, countries such as Britain and the United States said that they could give up their consular jurisdiction in China if they were willing to reform their laws and conform to the standards of modern civilization.
These two events greatly encouraged the Qing Dynasty's determination to reform the law. Of course, some people think that Qing ** is too naïve.
After all, the fact that Western powers were granted consular jurisdiction in China was due to flaws in Chinese law does not mean that China does not have the power to change the situation.
On the contrary, the reason why China can only agree to the demands of the Western powers is fundamentally because China is not strong enough. In any case, however, the determination of the Qing Dynasty to regain consular jurisdiction by reforming the law cannot be ignored.
The key to Japan's ability to take back consular jurisdiction from the West is that it has increased its national strength during the 30 years of the Meiji Restoration, and has become a great power in East Asia, which has attracted the attention of Western powers.
In contrast, China did not gradually regain consular jurisdiction until after 1943, thanks to its growing national power and importance in World War II. However, it is not easy to recover consular jurisdiction simply by amending the law when the national strength is weak.
For the Qing ** at that time, this may have been their only way out.
In 1901, the Qing Dynasty launched a comprehensive and systematic reform in politics, economy, military, education, etc., known as the "New Deal at the end of the Qing Dynasty".
In 1902, the Qing Dynasty officially ordered the revision of the law, and the person who presided over this reform was Shen Jiaben, who was the right attendant of the Criminal Department at that time.
This figure, who may seem strange to us, has a pivotal place in the history of law, and he is the founder of China's judicial modernization.
Shen Jiaben, a figure who occupies an important position in the history of Chinese law, reveals to us the historical process of how traditional Chinese law has transformed into modern law.
Shen Jiaben has served in the Criminal Department for many years, and is not only extremely proficient in traditional law, but also has written many legal works and handled many cases. Such professional ability and rich practical experience made him the presiding officer of this seminar.
Shen Jiaben's worries are not only due to the great changes in China that have not been seen in 3,000 years, but also because of his personal experience in the First Sino-Japanese War and the Eight-Nation Alliance's war of aggression against China.
He developed a deep understanding of the corruption of the imperial court, the power of the Western powers, and the legal conflicts between China and the West. Therefore, he presided over this revision of the law, not only to fulfill the task of his superiors, but also out of enthusiasm for the fate of the country and the pursuit of legal reform.
Under the national crisis at that time, Shen Jiaben chose to use the law as his own salvation**. From 1902, when he was commissioned to study the law, to 1911, when he was dismissed from his post, the decade was the most glorious period of his life.
He devoted a lot of effort to enacting many unprecedented new laws, such as the "Commercial Law", "The Current Criminal Law of the Qing Dynasty", "The New Criminal Law of the Great Qing Dynasty", "The Nationality Law", and so on, and used modern judicial concepts to improve the unreasonable content of the old laws.
These achievements have contributed greatly to the transformation of Chinese law from tradition to modernity, and have established its place in the history of law.
Overall, Shen Jiaben was a pioneer in legal reform, who spent his life making great contributions to China's legal transformation, and his experience and achievements are still of great significance to people today.
Shen Jiaben, as "the last legal person of traditional Chinese law and the first legal person of modern Chinese law", his status is similar to Dante's position in the European Renaissance, which is both a continuation of the past and the future, and unique.
Although he was well versed in traditional law, he knew little about Western law until he presided over the legal reforms.
However, he did not deter from this, but actively pursued his studies, found someone to translate a large number of legal works of Western countries and Japan, studied them carefully, and went to Japan for investigation, hired Japanese legal experts as consultants, and fully participated in legal reform.
At that time, Japan became a world power after the Meiji Restoration, and its experience as a strong country aroused the interest of many Chinese people, and a large number of international students went to Japan to study.
As a result, Shen Jiaben's legal reform has been profoundly influenced by Japanese law, which is one of the reasons why he has been able to make significant contributions to China's legal reform in this context.
Shen Jiaben: How to Extract the Essence from Legal Reform and Eliminate the Dross Shen Jiaben is a pioneer in legal reform, and he knows the importance of studying Western law and how to view the differences between Chinese and Western laws in law cultivation.
He believes that ancient and modern Chinese and foreign legal theories have their own advantages and disadvantages, and they should be examined in detail and carefully studied, and their essence should be taken and their dross removed.
His open-mindedness and open-mindedness were not common at the time, but he adhered to this idea and reflected it in the principle of law cultivation, that is, "to compromise the good rules of the great unity of all countries, and to adopt the latest doctrines of the modern world, while still not disregarding the etiquette and religion of our country in the past."
Therefore, when it came to actually revising the law, he not only opposed the total westernization of the country in disregard of the national conditions, but also did not agree with the self-containment of using the national conditions as a shield in everything.
His ideal is to make China's laws conform to national characteristics and adapt to the trend of the world.
Shen Jiaben has shown firm determination and correct vision in legal reform. He believes that the law should clearly inform people what is legal and what is illegal.
For this reason, he insisted on abolishing the principle of "citation by comparison" and advocated the adoption of the principle of "criminality according to law." This will let people know how they should behave and avoid getting stuck because they don't know the law.
Shen also upheld humanism and Confucianism, advocating the abolition of cruel death penalty punishments, such as Ling Chi, beheading, and corpse killing. He argues that these punishments not only violate humanitarian principles, but also run counter to the Confucian idea of benevolence and people-orientedness.
He advocated that the death penalty should be changed to a capital crime of beheading, and that it should be carried out in secret to avoid causing unnecessary panic and harm in public.
At the same time, he also advocated the abolition of punishments with a huge humiliating nature, such as facial tattoos, and the protection of people's dignity and rights.
One of Shen's major contributions to the reform of the law was its abolition"Strains"System, i.e., if a person commits a sin, he will be punished along with those who are related to him. In TV dramas, we often see the shadow of this system, such as:"Slaughtered all over the house"with"Zhulian Nine Clans"。
However, this system that is against human nature has been abolished by Shen Jiaben and no longer appears in Chinese law. In addition, Shen also resisted some parts of Western law that were not in line with China's national conditions, such as the abolition of the death penalty.
Although Western countries have long begun to abolish the death penalty, and some countries have even legislated, Shen Jiaben is firmly opposed to introducing this practice into China.
He believes that the abolition of the death penalty is premised on the improvement of the moral quality of the people and the reduction of the crime rate, which has not yet been achieved in China.
Therefore, he believes that the abolition of the death penalty may embolden criminals and increase the crime rate. In the process of revising the law, Shen Jiaben had the most fierce controversy with the conservatives around the "Criminal and Civil Procedure Law" and the "Daxin Criminal Law"."Ritual controversy"。
Despite facing many difficulties and challenges, Shen Jiaben has always insisted on promoting the modernization and progress of the law, and has made important contributions to the construction of the rule of law in China.
While maintaining traditional Chinese etiquette, Shen Jiaben is also reforming the law.
He believes that traditional Chinese law has its own specific social and cultural background, such as the maintenance of the patriarchal system, family ethics, ethics and teaching, etc., and these legal provisions are in great conflict with Western legal culture.
However, Shen does not see problems with these traditional laws, but rather sees them as a reflection of traditional Chinese culture.
Therefore, he refutes the conservatives from the perspective of Western legal culture, but from the perspective of traditional Chinese culture, and believes that some people in the ancients thought so, not in the West, and even only by changing this clause can it truly conform to traditional Chinese etiquette.
Some people are for"Togu restructured"It's too simplistic to think that it's just backward thinking and academic far-fetchedness, but in reality, sometimes"Togu restructured"Just a means of fighting tactics, the real purpose"Restructuring"。
For some conservatives, it is difficult for their ideas to accept Western ideas, arguments are often invalid, and it is easy for the other side to grasp the handle, thinking that they are not patriotic and want to"Changing summer to raze"。
For example, when Shen Jiaben was cultivating the law, his"Communicate the old and the new, and integrate the East and the West"attitude and"It compromises the good rules of the great harmony of all countries, and adopts the latest doctrines of the modern world, while still ignoring the etiquette and religion of our country in the past"The purpose of the discipline led to him"There is a dilemma, often standing between the old and the new"。
His legislation"Radicals think that the reform is insufficient, and the conservative generation blames it for forgetting its roots"。This is because going to extremes is always the easiest, while being in the middle is the hardest.
The presiding officer of the legal reform of traditional society, his sadness and bitterness may only be felt by himself. If you want to reform something, I'm sure you can relate to that.
This revision achieved some results, but failed to save the Qing Dynasty and China. Judging from historical development, without fundamental political changes, law, industry, education, and other ways to save the country will not succeed.
However, we cannot blame them, they are in the middle of a great time, and they do not know which path is right and what to do to save the country. They are all trying their best to save the nation from peril, and it is precisely because of them that China has been able to progress and develop until today. February** Dynamic Incentive Program