The current criminal law and the commentaries on the codes of Tang

The current criminal law and the commentaries on the codes of Tang: comparative phylogenetic perspective

Li Weidi

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Abstract: standing on the blood perspective, comparing the existing criminal law and the commentaries on the codes of Tang, the author found that the current criminal law, everyone is equal before the law, criminal punishment, legal principles and some criminal norms, beyond the commentaries on the codes of Tang; in bribery, theft crime, intentional killing crime of perjury crime, etc., is not as good as the commentaries on the codes of Tang scientific and precise. The author thinks, and punishment in accordance with the blood is wrong, the meaning of criminal law to discriminate against blood is wrong.

Keywords: blood relationship; criminal law; the commentaries on the codes of Tang; blood

CLC number: DF902, DF6Document code: A Article number:

Author introduction: Huaihua Teachers College Department of Social Sciences of law, associate professor, research direction is the blood relationship and the law, 418008

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The commentaries on the codes of Tang (hereinafter referred to as the Tang Dynasty) and the criminal law (hereinafter referred to as the criminal law) from 1400 to two between, time seems to become have no relevance, in fact, the two national foundation and as adjustment means of the function is the same. Standing on the blood relationship perspective, through the dust of history, we see the come down in one continuous line source relation between the two, the great progress of surprises in the Chinese law system, but also for ignoring the traditional legal culture essence and regret.

The basic principle of criminal law, and blood

Abandon the principle of equality before the criminal law 1, for the same crime different punishment principle.

As the reflection of feudal system in law, stipulate the crime punishment with varied, mainly manifests for the "Eight meeting", "please", "reduction", "when", "the official as" provisions. In the eight debate, discussion on dear bin is directly based on blood relationship determined, dear refers to "the emperor and Empress Dowager too dear a free above, above the Empress Dowager fine linen hemp dear dear Queen, above a small power," [i] bare free above dear refer to oneself more blood each of the five generation, a small power more dear to from their own number on the three generation and the blood within three generations of marriage, fine linen hemp more dear to himself down from the number of blood within four generations and two generation within the marriage, the first toward the descendants of the royal family. In addition to "ten evils" sin, guilty of a crime, the crime legal flow following reduction treatment, death by officials investigate the case, the prisoner's identity, the relevant legal provisions and the draft decision opinions, reported to the approval of the emperor.

Crown princess high above dear, eight protesters above dear and sun, make the following legal crime reduction processing flow, death is reported to the emperor processing. Please right are relatives of the flow can be reduced, crime punishment. More than seven, relatives, the following are the current crime. Visible a kinsman of the emperor and high officials and noble lords crime through discussion, please, subtraction, foreclosure, free blood privileges and escape the criminal sanctions, the same crime different punishment.

Article fourth of the criminal law, the crime of "any person, in the equal application of the law. People will not allow any privilege beyond the law." It includes the equality of legal status and legal equality, blood relationship is no longer a judicial privileges on the basis of modern democratic politics, which is reflected in the legal field, is to abandon the judicial privilege principle to the public for sure.

2, the criminal law abandoned even the blood principle and single penalty parents principle, has established the principle of suiting punishment to crime.

The criminal law fifth stipulation: "the degree of punishment shall be with crime, criminal responsibility and commitment to adapt." There is no crime people certainly do not bear criminal responsibility, should be a crime and its liability to punishment.

Tang Code provisions, if the family had a felony, regicide, regardless of other family members are informed, whether to participate in, and if so whether first from losing, because of blood relationship and family crime, "evils", close to chop, distantly related to flow, material property confiscated, "the rebellion and regicide, are cut; father and son sixteen years all of the above ground, below fifteen years old daughter, Zu Sun, and wives, brothers, sisters, Tian Zhai didn't if tunes, eighty years old, male, and a dangerous illness, woman was sixty years and the disabled and free; uncle, brother's son are not limited by the flow of 3000, similarities and differences." [ii] " the conspirators, cutter. Already on the road were cut, wife or if the rate of flow; Department of public more than 100, parents, wife, sub flow s." [iii] this is the basis of blood and the formation of the "edge to sit".

Tang Code provisions, if the family members of joint crime, regardless of the fact of the first from the parents, the default is the chief culprit, other people not guilty, bear the legal liability by the parents separate, "if the family accomplice, the crime." [iv] and the status of the parents is generally determined by the blood of the provisions, except for "eighty years of age or older, ten years of age and a dangerous illness", in the family the seniority of the highest male members.

This shows that the Tang Dynasty according to the blood relationship, on the one hand, the family man found guilty, on the other hand, the guilty person is acquitted, hope to strengthen parent management responsibility and authority of the emperor by blood relationship. This is be misfits and the current criminal law and democracy.

Two, blood relationship with the crime of intentional homicide, the crime of intentional injury

Article 232nd of the criminal law, "the murderer, sentenced to death, life imprisonment, or more than ten years; if the circumstances are, at more than three years to ten years in prison."

Article 234Th: "deliberately hurt others, is less than three years imprisonment, criminal detention or control." From the above two, the subject of crime is general subject, without considering the particularity of kinship between the crime, but in real life, blood relationship do affect the crime, affect the legal evaluation on this kind of crime, contradiction and judicial personnel inevitable in legal and reality. Please see the case:

In April 4, 2001, Shanghai Jinshan District people's Court of Jiang Laifang deliberately killed son Jiang Jifeng a verdict, the court to voluntary manslaughter and sentenced to five years in prison Laifang Jiang, to shield the sister Jiang Jifeng was sentenced to two years in prison, two years probation, the mother of Jiang Jifeng Yu Hui Li sentenced to a year in prison, a year of probation. Details are as follows: the victim Jiang Jifeng was born in 1975, the parents to be spoiled, selfish and cruel character form, into the family and neighbors very hate "problem teenager," father's discipline is often a beating. Jiang Jifeng started to fight with the increase of age, from the age of 15, beating, smashing the parents elder brother sister home goods force families to provide gambling, spending money for it, often the parents played head broken and bleeding, if the circumstances are especially bad. In February 5, 2000, the Lunar New Year's day afternoon, Jiang Jifeng to his father to be 1000 yuan to gambling, gambled away after second days, Jiang Jifeng, and asked her father for 1000 yuan, immediately the father can't afford so much money. Jiang Jifeng suddenly come up with iron bars, the father cried, he went out to borrow, less element, a rod, and claims to detonate the liquefied gas, father wanted to run, but was caught by a beaten, father once again head broken and bleeding. In February 9th, the father called friends, will force Jiang Jifeng tied, want to take lessons from Jiang Jifeng, tied after Jiang Jifeng shouted at the Chiang Laifang shout abuse: "there is a don't put me, which one day let me, I'll kill all the family." Jiang Laifang very afraid, until the others had gone, Jiang Jifeng strangled. Yu Huili and Jiang Aifang know, three people agreed, declared Jiang Jifeng out did not return, and buried the body in the home. A few days after the three. [v]

The processing, accords with the present criminal law article 232nd, Article 310, but the public legal evaluation of the differences, there are two questions, first, parents in Jiang Jifeng was beaten threat ten years, why the law failed to provide effective relief for parents? Second, Jiang Jifeng for parents to society is a serious threat and aggression, the subjective vicious very deep, in the country can not effectively stop the infringement, eliminate dangerous situations, parents as the victim to self-help, as people for pesticides, in the way that the old lost, lost child, family in prison, why Jiang Laifang home to bear all the consequences? Can the punishment is light point? Even as the probation?

What are the causes of the problems above? From the surface inspection, seems to be mainly is the duty of administrative and judicial. Because Jiang Jifeng's parents, to violence, according to the authority or to be the victim's request, the public security organ according to the regulations on administrative penalties for public security punishment, or the procuratorate prosecution, or the people's court should the victim's private prosecution, according to article 233rd of the criminal law or the 260th law sanctions imposed on the offender, it may be possible to avoid a tragic end. In this case, is that there is no law enforcement. But if the in-depth investigation of the laws are not implemented, will find that lead to legal reasons of the case is not the administrative judicial problems, but the legislation problems. Adjust the blood relationship with general legislative norms adjusting social relations, ignoring violations of special and level of blood. In judicial practice, there is a common phenomenon, for blood among the damage, if not death results, the judicial organ shall not intervene. In his eyes, his son playing me, as a misfortune; in the public security and judicial eyes, this is a family dispute, honest to housework, housework is not big, also not important event. The judicial intervention, that special circumstances, to protect the victims of exclusion of blood. Here the judicial consideration special blood, but made the mistake of understanding, the harmfulness of consanguinity between non fatal violence cancel once for all. Some people say, article 260th of the criminal law is the family non fatal violence criminal law sanctions, and there is no loophole. The law provides for the crime of abuse, but the crime as crime of private prosecution, the law did not notice the maltreatment of people, often be forced in spirit, physical weakness, lack of ability to protect themselves and the private prosecution ability, therefore the law is difficult to achieve.

Blood damage once the death results, the judicial organs according to the general provisions, should consider the special case is ignored. A person against their own blood, grace or licking the calf rearing of love, always leads to some hesitation, blood is thicker than water, why finally start? Is likely to be victims of vicious, as in this case; or injuring a cruel hand hot, malignant deep, such as to kill his son to insurance fraud behavior.

Therefore in the trial, first, to understand whether the parties have a blood relationship, is what dear etc.. As compared with ordinary kill and kill the son's behavior, the latter not only violate other people's right to life, and against the blood affection between the right conflict, the two defense line, its social harmfulness and subjective malignant is much greater. Second, to focus on understanding the cause harm behavior background. As to kill his son's behavior in order to insurance fraud, compared with the case, though it is to kill his son, but the former is to kill an innocent person, the latter is bigger, the former social harm and subjective malignant is much greater. The punishment to the heavier, light light. As in the case of Jiang Laifang's judgment is overweight, because of the cause caused by tort, mainly is the long-term damage, Jiang Jifeng according to reason, should be the minimum penalty, legal punishment or probation, or be exempted from punishment; but according to the current law, it is not possible, because the provisions of Article 232, penalty starting point is three years, sentenced 5 has been especially lighter punishment. Worth pondering that, if deep buckling theory of criminal law, the judgment of the case is a problem, because for a period of 5 years. Conclusion is made in the premise of "lesser" under, and intentional homicide crime obviously can not be identified as "lesser", so according to the logic presumption in criminal law theory, the should the case in 10 years. If so, and our desire is not more different?

In view of the above analysis, the 232 article of the criminal law and 260 to modify, to implement the three ideas, first should give full consideration to the kinship between the second parties, should fully consider the specific background caused by blood damage, third to strengthen the blood of non criminal protection against the death of. In Tang Dynasty, was basically solved the problem.

The focus on the "wicked", there are four evil is the blood against the [vi], focus on the protection of the "discussion", "please", "reduction", "Redemption" object half blood, in the criminal code specifically, Tang also considered his dear, such differences between the parties. "The murder of period, dear elder grandparents, grandparents, parents, husband, husband, all cut. The murder of fine linen hemp elders, two thousand; have been wounded, Hank; has been killed, all cut ";" where the murder, acts for three years; have been injured, Hank; have been killed, cut, "[vii]," the European fine linen hemp elder siblings, rod one hundred. A low power, high power, the increasing etc.. Respect is, and the addition of a etc.. [viii] three worth learning has three: first, to kill blood elder than kill people serious crime, such as murder parents, regardless of the seriousness of the circumstances, the accomplished offense and the attempted murder, all beheaded; such as non kinship, the minimum penalty of only three years in prison. Because the blood relationship is different from the ordinary social relations. In second, dear, punishment, such as death is young, more dear crime more serious, more sparsely crime closer to ordinary murder. Dear, because different, between the perpetrator and the victim's feelings and interests close to different degrees, subjective malignant different. Third, according to his punishment, such as blood, long infanticide, lighter than ordinary murder crime, juvenile kill long, serious crime in general. Because of the long en in the young first. Of course, the Tang Dynasty the legislation also has its drawbacks, in this matter.

Three, related crime, and corruption and bribery crime of theft

1, bribery crime

The crime of corruption and bribery is the focus of the criminal law. The analysis of a case: during the procuratorial organs accused Ma served as deputy director of the Great Hall of Hunan province traffic, using the in charge of the province's highway projects and duties as a member of the leading group office of the tender will, together with sister Ma Qiying, the three daughter Ma Ji, two son Huang Jian, helping others, winning the subcontract works and undertake the business, seek benefits for others, has separately and together receive individual and unit bribery 2266000 yuan. Ma Qiwei himself, though only $130000 in bribes, and others are the most common bribery, bribery money left in his sister, daughter and son-in-law. In this regard, Ma said he did not know Ma Qiying, Ma Ji and other people receive money amount, no bribery intention, it does not constitute a crime. The prosecution argued that Ma Qiying, Ma Qiwei, Ma Ji, Huang Jian, to use their position to seek benefits for the request unit, let his relatives to request units to collect the money, so it with Ma Qiying, Ma Ji, Ma Jian Huang formed with the bribery intention. [ix]

This case is the civil servants and blood elaborate bribery, curve, the amount is huge, and trying to evade the law. It argues that the horse, he did not know Ma Qiying is paid, how much money received, they did not receive and keep money, so Ma Qiying took the money, and had nothing to do, intentionally themselves without the bribery, does not constitute the crime of bribery. The disputation said, Ma Qiwei knows Ma Qiying to use their position to accept bribes, other units and individuals, constitute intentional bribes. The author thinks, even though it for his own behavior that, in the face of strong political offensive, have to accept legal sanctions, but from the strict and legal features of this case, there are two problems, first, the common intent charges cannot be established. Even by the general law of the development, can be sure Ma Qiwei premeditated curve of bribery, the defendant later did this operation, the specific facts but the prosecution if not give others accused of planning, division of labor, how how how to contact, including time, place, subject, objective aspects, it cannot be recognized that the curve of bribery. From the legal consideration, decided whether a behavior intentionally, first, to see whether the actor acts carried out, including the personal behavior and the common behavior; second, to see whether the actor to foresee the consequences of his actions; third, to see whether the actor to actively pursue or allowing the specific effect to occur; fourth, if the bribery the intentional, but also of whether know bribery and bribery amount. From the case in court debate, if the prosecution can not provide other evidence, it can make the horse such defense: Ma Qiying charge property act, I wasn't involved in planning, I don't know who is the briber, amount, claims, does not occupy the property accepted Ma Qiying et al, therefore, I can not bribery intention, there was no bribes booty, therefore does not constitute the joint crime of bribery.

Second, the law can not punish Ma Qiying's behavior. If Ma Qiwei's defense was successful, Ma Qiying et al. Please accept the trustee of property behavior, may be two kinds of qualitative, for one, is fraud, the second is the legal behavior. In judicial practice, set mostly legal action, because their behavior can be understood as an intermediary fees, service charges, free gifts. If the corruption of judicial officer, this is a good chance for the. In real life, many similar behaviors not punished by the law, the defendant acquitted, practise bribery or receive bribes publicly and feel helpless. As an example:

A as a private business owners for the production of raw materials, a large state-owned enterprises, to buy their own materials, to name the fellow business leaders B son C registered company 100000 yuan. Funding at the beginning, then B did not mention the material things, the first half of the year, a too much on the grounds of the product backlog, request B help, B suggest purchasing Ding Yujia negotiate their, a successfully to slightly higher than the market price to the state-owned enterprises to sell 50 tons of raw materials, access to excess profits of 300000 yuan. After the raw material the backlog of metamorphism, the loss of nearly 600000 yuan of state-owned enterprises. The matter was investigation and prosecution, a, B and D are denied bribery, claiming that a funding is entirely friends act, raw material purchase is a normal business relations, high price and enterprise loss is caused by the change is reflected in the market, the management risk. The results of the trials is not guilty, ethylene release, deliberately certainly b son C no bribes.

The modus operandi of Pima case more cunning, in the long run, play ball, but is essentially the same, is the use of blood curve of bribery. Such cases of criminal suspects, a higher IQ, planned, familiar with relevant laws, the blood relationship intimacy, stability and concealment, drilling legal loopholes, achieve the purpose of bribery and bribery. This kind of phenomenon, be known to all, but according to article 382nd of the criminal law, Article 385, article 393, article 394, cannot be identified the suspect guilty.

Why the current criminal law so feeble? There are two gap is legislation, the legislation requires the burden of proof, the blood is collusion, in fact it is difficult to obtain evidence the prosecution. Secondly, legislation does not specify the blood money is bribery, Qujingtongyou, criminals do one thing under cover of another.

The blood curve of bribery, have since ancient times, compared to the existing criminal law, the more effective:

"The provisional supervisor, his family to have money, begging, borrowing, use, sale of surplus profit is reduced, the official crime two, officer informed with sin, those who don't know the reduction of family crime five etc.." "Non provisional supervisor officer and his family offenders, the reduction of the provisional supervisor and family crime etc.." [x]

The above state, county, town, Shu, Zhechongfu, judge, is the official supervision, generally refers to the leadership post, non provisional supervisor, refers to the clerk, the official family if accepting his property, or to the men of borrowing, or free use of his labor, or with the management transaction jobbery, belong to criminal behavior; the official if prior don't know the behavior of the family, but also the default guilty, if known, according to the general bribery punishment.

The regulation has its legal basis: first, blood relatives or family took his property, will have to be, must inform the officers, entrusted by the people, for the wealth of people, will be offset. Did not know, loss of educational responsibility, knowing, with longitudinal greed evil, not politicians, how can the country? It has not, how can it? The family by wealth, officials can not shirk its responsibility. Second, if the burden of proof required to take the prior to know whether or not, is futile, because the family communication often, foreign have closed and covert certain, not easy to forensics. Third, officials and family are the interests of the community, after the incident, the family in order to protect the official, will at all the blame on his head, to circumvent the law, to ensure that the interests of the whole family. Fourth, improve the cost of corruption, relying on blood or related legislation, an antidote against the disease, the system anti-corruption, further clogging the corruption from system channel.

2, the crime of theft

Tang law stipulates: "the cohabitation of the youngers, will be stolen his family property, to private property theory and two ones with." This shows, Tang has noticed the relatives of the internal phase difference and general thefts stealing, theft of ten sentenced to one and a half years in prison, and theft of her own ten piece as long as ten plates, at the minimum punishment; family and outsiders collusion theft own of only ten, plus two penalty, namely thirty plate. "All the fine linen hemp, dear little power property, reducing a large power, mortal; minus two; period dear, minus three." [xi] if the theft of relatives of the property, punishment is also lower than the ordinary theft, and close with the perpetrators and the victim blood and mitigated punishment. Cause on the basis of the difference is based on blood relationship and family relations.

Article 264th of the criminal law of the crime of theft, in the judicial practice often encounter blood inside theft behavior, the Supreme People's court has been a judicial interpretation, the general will not steal their belongings recognized as criminal acts, identify theft family property behavior is fuzzy, not good. And relevant provisions of the comparative science, first identified by theft has great social harm, the criminal law should be against; second full attention to special consanguinity theft; in third dear for punishment, perpetrator and the victim blood closer, the punishment is light, whereas more heavy and close to ordinary theft punishment. In the ownership has fine today, should learn from Tang Kin theft legislation.

Four, blood relationship and marriage of perjury crime, violence crime

1, the crime of perjury

Perjury crime in criminal law, did not distinguish between the special relationship in this kind of crime. The Tang Code provisions, "all together, if the above dear grandfather, and grandson, if the sun father, brother and brother and his wife, guilty phase is implicit; tunes, I mainly hidden: are not theory, namely to disclose it and Ti language news also do not sit. Small power following concealment, anti human three etc.. If the crime and sentenced to more, not the law "," the law of [xii] compatible hidden, namely eighty years above, below ten years old and dangerous illness, nor its evidence, or mitigating human sin three ", [xiii] this article two has two meanings, first, to live in a family. People and other close relatives, relatives help crime evidence, masking booty, send news secretly, hidden crime family, not guilty, if guilty, but also in accordance with the dear, mitigated punishment. Second, forcing blood phase syndrome is a crime, criminal behavior, criminal liability. Third, treason felony, not applicable law.

The provisions of the case has its scientific basis, from the legal purpose, which is to maintain social order, and the relation is an important social organization, is an important means of social stability, is a relief valve social contradictions; if the blood is forced the crime, the collapse is likely to cause the blood tissue, causing the social cell necrosis, law enforcement The loss outweighs the gain.

Some scholars believe that not because of blood relationship and destroyed the unity of criminal law, refused to blood into the law, here can learn from the continental law system, in 1810 the French penal code "137", 284 ", in 1871 the German penal code" 157, the provisions of article 257, know close relatives crime without report, deliberately hide hidden, the others to hide their relatives, perjury as relatives, relatives are not considered guilty escape help. [xiv] modern capitalist countries expanded volume Yinquan: 1994 "French penal code" 434th ", in 1976 the German penal code" 139th ", the 1975 criminal code of Italy" 307th, canceled state crime must report exception. [xv]

2, violence crime of interference with the freedom of marriage

The more detailed provisions about marriage, first of all the parents marriage to the younger generation decision rights and legal responsibility. Children even in employment, marital power by parents to control, except in special circumstances, the general to inform parents and listen to the views of parents, "the humble young outside,...... No, listen to the elders, and offenders, rod one hundred." [xvi] as for children at home, the marriage power belong to, the no direct provision, probably because "the parents, the words of a match-maker" has become a habit, or has been implied the meaning. If the marriage in violation of the provisions of laws, and grandparents, parents, grandparents or parents only punishment, " the marriage law, the grandparents, parents, sitting in the." [xvii]

Secondly, according to the blood essence of marriage has been determined: no marriage within the same family name, good base not marrying, keep the father or mother or husband loses not marriage, parents in custody without marriage, the offenders shall be subject to criminal penalties.

Thirdly, set "7" divorce conditions. His wife is barren, the statutory authority to divorce her husband, because the blood is not continued, "7" in six are directly related to blood; seven cases of course not "7" provisions, generally can not divorce, "the wife no 7 and righteousness like, out of, and a year and a half." [xviii] thus, the criminal legislation about marriage is based on blood relationship.

The provisions of the criminal law of the right to freedom of marriage from the freedom of person's point of view, 257th provisions: "to interfere in others to violence in the freedom of marriage, is less than two years imprisonment or criminal detention." Basically denies decision parents marriage, also denied the blood can be continued as the legal grounds for divorce, this is great progress.

History is the development history, is eternal; the reality is new, the reality is also old. The current criminal law and the commentaries on the codes of Tang has qualitative differences, but also have the intrinsic uniformity. Blood legislation, Chinese legal system is the one big characteristic, take the essence, discard the dross, is a major research topic of law. [xix] because of blood relationship is always the important social relationship, human beings can never avoid blood; blood relationship is the warmth of the carrier, is also the source of conflict, China criminal legislation must face the facts, should also make full use of this resource.

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