What is the difference between the legal thought and legal system of the Qin Dynasty and the previous generation?

First, the guiding ideology of the legal system in Qin Dynasty

After the establishment of the Qin Dynasty, he continued to carry out the legalist thoughts and policies since Shang Yang's political reform. Among them, Han Fei's thought of combining law, technique and potential, which centered on the rule of law, had a great influence on Qin Shihuang's political power and legal activities and became his guiding ideology. The guiding ideology of the legal system in Qin Dynasty can be roughly summarized as the following three aspects:

(1) Unifying laws

This has two meanings: first, the whole country should implement a unified legal order; The second is that the supreme legislative power belongs to the emperor.

(2) Everything depends on the law.

Qin Shihuang stipulated that officials should be teachers, and everything was decided by law. This was originally the proposition that the emerging landlord class "ruled the country according to law" during the Warring States period. After the establishment of the Qin dynasty, it still took this as a guide to strengthen legislation and make everything "legal".

(3) Taking punishment as a threat

Mainly in two aspects: first, the law is so tightly controlled that people often violate the criminal law; The second is severe punishment. This is the continuation and development of Shang Yang's thought of light punishment and heavy punishment.

Second, the general situation of Qin legislation

(A) Legislative activities and the discovery of Yunmeng Qin bamboo slips

In the seventh year of Gong Jian (408 BC), the State of Qin promulgated the law of "Early Rent of Grain" to confirm the legality of private land. Subsequently, when offering sacrifices to the people (reigned from 384 BC to 362 BC), the decree of "stop at death" was promulgated, prohibiting the use of slaves for human sacrifice. When he was filial, Shang Yang reformed and began to make laws on a large scale. When Zhao Xiang became king, the law was further developed. After the King of Qin proclaimed himself emperor, he inherited the original laws of Qin State, and with the development of feudal economy and politics, he formulated many new laws. Therefore, on the eve of the unification of the six countries, the laws of Qin were various in name and the style and content were quite complete.

After the establishment of the Qin Dynasty, many new laws and decrees were formulated and promulgated one after another.

/kloc-The bamboo slips of Qin Tomb in Shuihudi, Yunmeng County, Hubei Province, discovered at the end of 0/975, include 18 kinds of Qin laws, miscellaneous books of Qin laws, questions and answers on laws, and seal diagnosis.

Yunmeng Qin bamboo slips *** 1 155 are extremely rich in content. There were 18 kinds of laws in Qin dynasty: field law, garden stabilization law, warehouse law, Ministry of Finance law, Guan's law, tribute law, engineering law, law, Jun Jue law and Guan's law. In addition, there is an effective law, which is about the verification system of county official accounts, and some of its contents have been included in the 18th Law of Qin Dynasty.

There are four methods of copying Qin law: removing officials, You's method, removing apprentices, Chinese workers' method, Tibetan method, horse hunting method, cattle and sheep method, Fu method, Tunbiao method and stealing laws.

Questions and Answers on Law is an explanation of some articles, terms and intentions of Qin Law in the form of questions and answers.

"Closed consultation room" refers to the rules and documents on trial principles and investigation, inquest, trial and seizure of cases.

(2) Legal form

Judging from historical records and unearthed Qin bamboo slips, the legal forms of the Qin Dynasty mainly include the following:

1? law

Shang Yang changed the law into law. Law was the most important legal form at that time. ?

2? Order (system, imperial edict)

Qin Shihuang once declared: "Life is the system, and order is the imperial edict." At that time, there was no difference between life, system, order and imperial edict in the legal sense. Laws and orders are often used together.

3? style

As a legal form, "table" first appeared in the Qin Dynasty, such as the above-mentioned "closed table", which also requires judicial officials to "govern prisons"

4? Legal question and answer

The Question and Answer of Law clearly explains some articles, terms and legal meanings of Qin Law by way of question and answer. This is of great significance to the correct application of the law and the more effective implementation of the legislative intent.

5? Act in court

This is an example of judicial trial. The legal answers mentioned "represented by the court" many times, which shows that "represented by the court" has become an example that can be cited outside the legal text in the judicial practice at that time.

In addition, there are legal forms such as "process" and "class".

Third, the main contents and characteristics of the laws of the Qin Dynasty

(1) Criminal aspects.

1? The main principles of conviction and sentencing

The principle of conviction and sentencing in Qin Law is: (1) The age of responsibility is determined by height. Men are 6 feet 5 inches tall and women are 6 feet 2 inches tall. When you reach this height, you will begin to bear criminal responsibility, otherwise you will not bear criminal responsibility. (2) to identify whether there is a sense of crime. Whether there is a sense of guilt is also a criterion for judging whether it constitutes a crime. (3) Distinguish between intention ("purpose") and negligence ("non-purpose"). In Qin law, "Duan" is intentional and negligence is "dereliction of duty". (4) Joint crime. The so-called combined punishment for several crimes is the principle of combining punishment for several crimes in the case of combined punishment for several crimes. (5) aggravating the crime of * * *. * * * A crime refers to a crime committed jointly by two or more persons. * * Crime is harmful to society, so the punishment is heavier. (6) Surrender and commutation. Surrender can be slightly alleviated. (7) being falsely accused of sitting backwards. False accusation is called "false accusation" by Qin law. The establishment of the crime of false accusation and frame-up must be "accusation", that is, deliberately fabricating facts, accusing others to the judicial organs, making the innocent guilty, or making a misdemeanor a felony. According to the law, the accuser is punished as a false accusation, which is a false accusation.

2? punish

The types of punishment are as follows:

(1) Death penalty. Since the Warring States Period, the Qin Dynasty has followed the execution methods of death penalty, and there are many kinds. Common ones are: ① Five punishments, which is an extremely cruel corporal punishment combined with the death penalty; (2) clan punishment, that is, the punishment of killing relatives because of their own crimes; (3) the punishment of beheading is to cut off the prisoner's head and hang it on a wooden pole for public display; (4) Abandoning the city, that is, in a crowded downtown area, the prisoner is executed as a punishment abandoned by the public.

(2) corporal punishment. In the Qin Dynasty, in addition to following the past, names such as Mo (chop), chop, chop (left and right toes) and Gong were widely used, as well as corporal punishment and labor.

(3) Punishment (penal servitude). Penalty is a punishment for criminals' compulsory labor (service). Including: ① Cheng Dan and Bengbu. "History of Emperor Hui of Han Dynasty" quoted Ying Shao as saying: "Those who set foot in the city should start to run the city". That is to get up early and bear the drudgery of building a city. According to physiological conditions, criminal women should not build cities, but should do rice work. (2) ghost friends, white charm. "Ghost pay" is to force male prisoners to cut wood in the forest, and white rice is to force female prisoners to choose rice to make it white, both of which are used for ancestral temple sacrifices. 3 Scott, such as Scott. Scooter refers to waiting for thieves, that is, forcing male prisoners to serve hard labor in remote areas to prevent foreign bandits; Female prisoners, like shepherds, refer to the labor equivalent to shepherds. (4) Punishment and repetition. Punishment and reform are the lightest punishments. Male prisoners are forced to guard in remote areas, while female prisoners are forced to serve in the government, with sentences ranging from three months to one year.

(4) moving. Relocation is a punishment for transferring criminals to remote areas.

(5) The so-called punishment is to force the prisoner to pay a certain amount of property or take a certain amount of corvee.

(6) Prophecy is a warning. Judging from Qin bamboo slips, they are mostly used by officials who have committed minor crimes.

In addition, the Qin dynasty also widely used past punishments such as "no official" and "redemption".

3? Major crime

The laws and decrees of the Qin Dynasty stipulated many kinds of crimes, among which the main ones were:

(1) disrespect for the emperor. According to the laws of the Qin dynasty, it is not only disrespectful to the emperor himself, but also disrespectful to ignore the emperor's orders. When you accept an order, you should stand down as a sign of respect. Otherwise, you will be fined, fired and never used again.

(2) libel and libel. According to Records of the Historian, after Liu Bang captured Xianyang, he said to his father and hero, "My father and elder have been subjected to harsh laws for a long time, and slanderers and even speakers have abandoned them in the city." Ying Shao was quoted as saying in Collection of Interpretation: "The Qin Dynasty forbade people to collect language." People are forbidden to slander the emperor.

(3) theft. "Stealing" is the act of taking other people's property as your own in an open or secret way.

(4) the crime of killing thieves. There are many regulations on "thief killing" and "thief injuring" in Qin bamboo slips, which pose a serious threat to feudal rule, so the suppression is harsh and the prevention is particularly strict.

(5) the crime of smuggling. Stealing the seal is secretly moving the boundary sign.

(6) treat the past as a crime. Ignoring the past means criticizing the current policies and systems with past examples.

(7) the crime of lying. The so-called "false words" refer to the words that oppose or overthrow the rule of the Qin Dynasty.

(8) Crimes unsuitable for words. The so-called "inappropriate words" are words that should not be said.

(9) Crime of throwing books. "Sending books" means sending anonymous letters.

(10) fatigue crime. "Tired" is to escape the corvee.

(2) Civil aspects

1? Ownership. As far as real estate is concerned, the content of ownership in Qin dynasty is mainly land and houses, which is the so-called farmland houses. In addition to other property, movable property also includes slaves. After the unification of the Qin Dynasty, in 3 1 year (2 16 BC), the first emperor ordered "making the rich people own their own fields", that is, asking the people to register all the fields with the government truthfully, and the government recognized their land ownership. This is the decree of the Qin dynasty to promote private ownership of land throughout the country. The implementation of this law has promoted the further development of private ownership of land.

2? Debt. The legal relations of Qin debt mainly include: sales contract, loan contract, employment contract and lease contract.

Regarding the loan contract, Qin Bamboo Slips' Question and Answer on the Law' records: "People have the responsibility (debt), but they dare not insist on quality, and those who insist on quality and collect quality will be poor." It can be seen that the Qin law prohibits pledge as a debt guarantee. However, according to Qin bamboo slips, when the government owes debts and is unable to repay them, it can use labor compensation.

3? Marriage. Qin bamboo slips "Questions and Answers of Laws" and other records stipulate that: the Qin Dynasty has no restrictions on the status of good people and bad people in later generations, allowing good people and bad people to marry; It is forbidden to marry someone else's runaway wife; The man and son-in-law who enter the woman's house have low status and are discriminated against.

(3) Other aspects

1? administrative legislation

After Qin unified the whole country, a set of administrative management system and official management system was created to meet the needs of autocratic centralization, and the related systems of subsequent dynasties were constantly developed and improved on this basis.

(1) Establish the emperor system

The emperor is the supreme ruler of the feudal country, monopolizing all political, economic, military, administrative, legislative, judicial and supervisory powers. After Ying Zheng, King of Qin, unified the six countries, he established the emperor system.

(2) Administrative management system

Qin set up three officials and nine ministers in the central government. Prime Minister Sangong is the highest chief executive under the emperor, assisting the emperor to manage all aspects of the government. Qiu evolved from "Guo Wei" in the Warring States Period, and was the main official in charge of military affairs of the central government. The imperial history developed from the imperial history of various countries during the Warring States period, and was originally in charge of the records around the king. Jiuqing is an official in charge of sacrifice, etiquette, military affairs, administration, justice, culture and education. It mainly includes: ① serving the constant attendants, taking charge of the emperor's sacrifice to the ancestral temple, and managing etiquette, which was developed by the divination historians of Shang and Zhou Dynasties; (2) A card shark, an official in charge of court guards; (3) Wei Yan, military attache, commanding guards, responsible for guarding the imperial city; (4) A servant, who manages the emperor's chariots and horses, the emperor travels and personally serves the emperor's chariots; ⑤ Ting Wei, in charge of judicial trial; 6. Dianke, responsible for communication with ethnic minorities; 7 Zong Zheng, in charge of the affairs of the emperor's relatives; Being in charge of the internal history of millet, and being in charge of national farmland, grain, finance and economy; Pet-name ruby ShaoFu, in charge of the mountains and seas tax ze pool, into the emperor.

During the Qin Dynasty, the local county system was established, and roads were set up in ethnic minority areas (equivalent to county level). There are townships, pavilions and villages below the county level.

(3) official management system

In order to strengthen the "official management", the Qin law has made strict regulations on the system of official titles, ranks, appointment and removal, transfer, assessment, rewards and punishments.

(1) Criteria and restrictions for the appointment of officials. The Qin dynasty had strict standards of virtue and political integrity in selecting officials: first, morality. The way of being an official in Qin bamboo slips stipulates the moral and behavioral standards that officials should have, which are summarized as "five good" and "five loss". Second, they should have legal consciousness. The rulers of Qin dynasty emphasized the rule of law, took officials as teachers, required officials to be familiar with the legal order, and distinguished "good officials" from "evil officials" by whether they clearly knew the legal order.

Although Qin law does not pay attention to family background as later generations do, it also has restrictions on the appointment of officials: first, it is not allowed to appoint "abolished officials", that is, it is not allowed to appoint incompetent or unqualified officials; Second, officials must be formally appointed to exercise their functions and powers; Three, the chief transferred to a new post, are not allowed to take away the original and auxiliary officers.

(2) the way to choose. In the Qin dynasty, central and local officials were appointed and removed by the emperor, and the chief officials could choose their subordinates. The main ways of selection and appointment are recommendation, recruitment and appointment.

(3) Assessment and reward and punishment system. During the Warring States period, Qin was famous for its strict examinations and clear rewards and punishments. The local authorities regularly report to the central government every year, and also conduct regular and irregular assessments of Cao officials in combination with specific functions. Reward or punish according to the assessment results.

2? economic legislation

(1) About the protection of natural resources. Qin attached great importance to using natural resources to serve its rule. The law in this respect is the field law of Qin bamboo slips.

(2) About agricultural production management. After Qin Shihuang ascended the throne, he inherited the traditional policy of Qin State, took various measures to develop agricultural production, required officials at all levels to master the agricultural production situation, and stipulated specific measures through laws.

(3) On the management of government-run handicrafts. Government-run handicraft workshops mainly provide various handicraft products for feudal countries and royal families, such as weapons, utensils and daily consumer goods. In order to ensure the quality and quantity of products, the Qin Dynasty enacted the Labor Law, the Equal Employment Law and the Workers' Procedure Law.

(4) About market transaction management. In order to maintain normal trade, the Qin dynasty formulated laws and regulations on commodity prices, currency parity and measurement error limits. Such as Jin Bu Law and Guan Shi Law.

(four) the main characteristics of the law

Qin law has the following characteristics: (1) Qin law still protects slavery and exploitation; (2) continue to impose heavy penalties on misdemeanors; (3) Pay attention to using laws to adjust economic relations.

Fourthly, the judicial system of the Qin Dynasty.

judicial organ

1? Central judicial organ

The central judicial organ of the Qin Dynasty was composed of Ting Wei and the physician. As early as the Warring States period, the State of Qin had "Ting Wei". After Qin unified the six countries, Ting Wei became one of the ministers and the highest judicial organ in China. Ting Wei's main tasks are two: first, he is responsible for "summoning prisons", that is, cases tried by the emperor's imperial decree; The second is to hear local appeal cases and review difficult cases that the county cannot decide.

2? Local judicial organs

Counties were established in the Qin Dynasty. County is not only a local administrative organ, but also a local judicial organ. The judicial trial in the county is managed by the county magistrate and the county magistrate. Ordinary cases are executed by themselves, and major and difficult cases are reported to the Central Tingwei for handling. Villages and pavilions also have certain jurisdiction.

They are not established at the same time, but their responsibilities are the same. They mainly mediate disputes, solve disputes, collect taxes and levy corvees.

(2) Litigation system

1? Litigation form

According to the status of litigants in the case, the forms of litigation can be roughly divided into two types: first, officials, such as Shi Yu, correct crimes and file lawsuits, similar to modern prosecutors; Second, ordinary people, mainly parties, are similar to modern private prosecutors.

2? legal proceedings

Qin law litigation can be divided into "court litigation" and "non-court litigation". "A thief who kills or steals others is a public prosecution", while "a master who kills, punishes, marries a son or a concubine is not a public prosecution". The government should accept cases that belong to court proceedings, while non-court proceedings are "not tried" and will not be accepted.

According to the "closed clinic", after the case happened, the local Li Dian had to write a written report on the defendant's name, identity, place of origin, crime, sentence, pardon, escape and so on, which was decided by the judicial organs. After accepting a case, the county judicial organ will generally send a governor to conduct an investigation or inquest, and then make a record of the investigation or inquest, which is called a "record". There are all kinds of books in the legal answers, that is, transcripts. For example, the inspection list of dead and wounded bodies, the medical appraisal of leprosy patients, and the record of crime scene inspection. It can be seen that the role of evidence in litigation was highly valued at that time.

3? judicial process

The interrogation methods and steps of Qin judicial organs are as follows: (1) Listen to the confessions of the parties; (2) Conduct cross-examination according to the contradictions and ambiguities in the confession; (3) Torture a person who has repeatedly retracted his confession and made a dishonest confession.

After the trial, a verdict was made and a verdict was pronounced. Dysprosium, interrogation. Reading dysprosium is reading the judgment; After reading, the parties plead guilty and execute according to the judgment; If you call it "injustice", you can ask for a retrial. This is called "begging". Begging can be proposed by the parties concerned or by a third party.