1616Years, the Manchu leader Nur Ha Che established Houjin regime in the area beyond Shanhaiguan, Jianyuan "destiny".1636Years, Huang Gai yuan "Zonta", officially became the emperor, changing the country, "the qing".1644Years, cheng.1911Years, the Qing Dynasty in Xin Hai revolution to the end.

The Qing Dynasty and got many new achievements in the succession to the former generation method based on the results, especially the development of minority legislation, is the most remarkable achievement for the legal system of the Qing dynasty.

A,Situation and legislation of legal thought

1,Legal thoughts-"Shen Han discretion", I put forward by Secretary Ning.

2,Legislation survey-"Qing law", "Qing Hui Dian", "rule", "Mongolia" "Tibet charter" imperial decrees minority regulations.

Two,The criminal law

1,Crime

1.Maintenance of the autocratic monarchy centralization rule, crack down on crime and other violations of the inverse of imperial power.

Treason, including "rebellion", "conspiracy", "seeking regicide" three crimes. Regulations: any rebellion, and committed regicide, as long as it is a conspiracy, no song from, is executed; the father and son, brother Zu Sun, and cohabitation of people, does not divide the surname, and uncle, brother, son, is not restricted by the same, sixteen years of age or older, regardless of a dangerous illness scrap, all cut; below fifteen years old male relatives and all female relatives, benefit the hero as slaves, property into the officer. Even if the children really know, eleven years old, will be sent to Xinjiang to castrate officer for the slave. Any person who commits treason, as long as it is not common, first from all cut, wives, children benefit hero house slaves, property into the officer.

The crime of the party, in addition to using the Camarilla crime provisions, also expanded the scope of application of the crime is strictly prohibited inside and outside the party, officials have privately.

The crime of heresy.

2.Adjustment of new social relations, the establishment of a new accusation.

Sea-robbers sin, Qian Long for the first time, the coastal, river robbery passenger point-to-point behavior.

Xing vendor and opium crime:

Yong Zheng seven years (1729Years), the Qing government first issued the ban, provisions: Xing opium trafficking victim buying contraband goods, flail, a month, near edge exile; private open opium den lure good children, according to a cult of people law supervision of TCM; from one hundred, staff, or boatman flow; beadle, O you, man, all staff of one hundred, only three years.

Jiaqing, has issued more than 10 smoke-free laws, regulations: any opium addict, staff one hundred, in two months.

Daoguang nineteen years (1839Years), issued the "prohibited opium regulations"39Article. The charter will opium smuggling acts as a major target; in the opium trade behavior, behavior, opened Yanguan plant poppies, manufacturing opium acts are punished; for the opium, also be punished.

2,Punishment

1.Development and change of the penalty

Flogging, caning, in the unity of the bamboo instruments, while reducing the penalty number.

Migration, exile, hair removal.

The death penalty, to divided cutter cut two off, each divided "force" and "Jian Hou" two class.

Additional punishment, punishment expanded scope tattoo, tattoo part, right arm, left arm again first stab thorn, three make the spine surface. Tattoos include reasons and tube bundle, and thorn Han in two languages.

2.Maintenance with penalty privilege

The eleventh chapterThe system of criminal law

A,The constitutionalism in the late Qing Dynasty and the law revision background

1,The loss of Chinese sovereignty after the Opium War

1.Tariff autonomy loss

Tariff autonomy loss, mainly in the agreement on tariffs, low tax rate and controlled by foreigners China tax authorities etc..

2.The destruction of the judicial sovereignty

Judicial sovereignty destroyed the main manifestation is the establishment of consular jurisdiction.

"Tang Dynasty" "similar self offenders, each in the Customs Law, otherness of the offenders, in legal theory," judicial processing standards China traditional law of foreign-related cases. But to the Qing Dynasty, changed.

Before the start of the Opium War, the British Khushami comes in to British Viscount Palmerston wrote: "yes, I admit a person to should obey the law system where another country. But, on the other hand, it will assume that you are and a civilized country intersection to the premise of the. The laws and regulations, always assume you obey that fixed provision, to your life and property as a reasonable protection as the premise. Now China but otherwise, especially they insist on the implementation of the savage rules and laws and principles of humanity and the rationality are incompatible." ("China modern foreign relation history data collection", Shanghai people's Publishing House1977Year edition,P53Page). This has become a main excuse for big powers to seize the consular jurisdiction, namely Chinese laws too harsh.

After the Opium War, Britain signed (1843Years) "five trade rules" agreed "in negotiations if lawsuits, steward officer cannot persuade interest, nor will shift, to ask the Chinese official and identify the things, which is the truth, and set off, free end, litigation. The British Department of sin, by the British agreed charter, legal, to work, to do; China Department of crime, should be treated by the method China." ("China modern foreign relation history data collection", Shanghai people's Publishing House1977Year edition,P101Page). Scope of application of this agreement is limited to five. The port, but eventually become the formal formation of the consular jurisdiction was. Then in the "Treaty of Humen", the scope of application of the consular jurisdiction extended to the mainland. The "Treaty of Wanghia" further provisions, not only relates to the American case by USA consular interrogation, even the Americans and people of other countries in the Chinese litigation, Chinese officials shall not intervene.

1845Years, Britain established the first concession in Shanghai, the formation of Chinese within the territory of the "Republic of". Since then, there are concessions in Hankou, Gulangyu Islet public concession.1864Years, the British Consul in Shanghai and the Qing government to reach an agreement, the establishment of trial organizations in Shanghai concession, called "Pidgin northern ya men".1868Years, the Qing government and the British and American consular signed the "Shanghai Pidgin official review articles", renamed the "Shanghai public concession mixed court".

With the establishment of consular jurisdiction and the Mixed Court, led to the emergence of "outsiders without China punishment chapter, and Chinese Anti foreign officials" extraterritoriality.1902Years of trade treaty "boat" special provisions "China deep to rectify their statutes, with the west country and change law of identity, the British allowed may help to move. As soon as we found out China statutes and judge method, and all related matters are more properly, the UK is allowed to discard the extraterritoriality". In addition, USA, Japan, Portugal and other countries made a similar representation. "Chinese revision of laws, the first back extraterritoriality, real self reform hub". So the law.

2,From the "barbarians technology" to "reform", "reform" the evolution of thought

1."Yi Xia dispute" in the negative effect of modern

"Chinese Road, such as the great furnace casting, things are attributable to the rule of the Yuan Wei, if, if, if the Galerkin, if the dollar, all this and I can't debate also. He (Yang Yi) they will be so "(Deng Jiaji:" Fu Yang Jian book "," flat "," the good house) establish a country road, etiquette is not trickery; fundamental diagram, in the heart not art "(" for foreign affairs through "). It is these be overbearing, blind xenophobia, to a great extent delayed the Chinese legal modernization.

2."Western learning spreading to the East and west"

One important way for cultural communication western missionaries in China.

Feng Guifen first proposed "to the original China ethics themselves, supplemented by rich and powerful countries of" old "; Zhang Zhidong as the body, the new use";

Guo Songtao put forward "the Western nations, there is the end of the court, in politics, in the end of merchants, shipbuilding, controller, phase with benefits to its strong, and at the end of one day";

Zheng Guanying in the "Millennium" preface puts forward clearly "harnessing the source, prosperity, not the strong military attack, and in the house of Commons in unison, well-educated people", "country, has always, though far inferior Chinese music education, but it also has a strong body to. Yucai in school, commenting on the house, a military one, in unison, pragmatic and ring true, move slow, the body also; the ship, guns, guns, mine, railway, electric wire, the use of also. Chinese left his body for its use, no matter the destitute, often not and. The ship made iron lines, rail four, fruit on my foot?"

3.The rise of the civil rights thought

Guangxu twenty-seven years (1901Years), Ci Xi in exile in Xi'an, Xiazhao method. "There are immutable. After treatment, without a thought of change. Cover is not easy to have three cardinal guides, such as Sunstar clear pictures of the world; and variable the A to B, might as well as modified string music...... The disadvantages of large credit long, law fraud is more".

Two,The system of criminal law

1,The guiding ideology of the law revision

1.The West and the Sino French combination, the Treasury of Chinese and foreign access.

In China traditional legal system, the criminal law is the most developed. In the traditional concept of law, criminal law, law, the meaning of the three is communicated, largely confined to the criminal law; at the same time, powers of China legal blame, be the first to bear the brunt of the criminal law as well. The amendments to the law minister Shen Jiaben that "the law, especially criminal law to cut, but to engage in editing". Therefore, the criminal law amendment is the core part of the late Qing dynasty.

1902Years, the Qing government made amendments to the "Qing law": "China law, since the Han and Tang Dynasties, generation has changed. I looked into the "Qing law" one book, compromise when, prepare a very fine detail. But for the rule, especially your time, past and present situation of different, non deliberate moderate, not the implementation........ The total time to fair, Chinese and foreign traffic, the Yi people to change".

2.Build law and jurisprudence research with nuclear

Shen Jiaben "law practitioners, not instance, not unknown. If the instance method, method of Ming, not its poor".

3.Build law and promote the combination of legal civilization

The amendments to the law in the process, Shen Jiaben please delete slicing, beheaded, massacre, YuanZuo, tattoo, torture, reduce death penalty clause, no leather trafficking and raising maidservant habits, reforming the prison, to affect the education for the purpose, to change the backward status of law law and savage, promote the rule of law civilization.

2,"Active criminal law of Qing Dynasty"

1904Years5Month15Day, amendments to the law library to altered and revision of the "Qing law".1909Years compiled "active criminal law of Qing Dynasty",1910Years of enactment. As the transitional criminal law.

3,"Criminal law" ("criminal law of Qing Dynasty")

1906Years begin drafting, invited Japanese jurist Okada Asataro helped draft.1907Years8Month compiled,1910Years11On the constitutional compilation the completion of the audit. Because of the ethic faction strongly against and attack, amendments to the law library will have to back the draft, to revise. Increase the "Supplementary Provisions amended" criminal law ""5A (namely "Interim Regulations").1911Years1In November, and is scheduled to1912The formal implementation.

1.The main content

Divided into two series of general and specific provisions,53Chapter,411A report of "Interim Regulations"5Article.

General provisions17Chapter, scope, penalty system, aging, age, the ability of criminal responsibility, self-defense, emergency, attempted, accomplice, established the legal principle of crime and punishment, namely "law without positive rule, don't ask what kind of behavior, is not a crime".

Special provisions36Chapter, provisions of charges and punishment for various crimes. Divided into five categories and five levels:

↓The crime of infringement of the royal family

↓The political crime

↓Harm the public interests of the society and judicial order crime

↓Infringement of social custom and social life of crime

↓Infringement of the personal and property crime.

The arrangement of the criminal law of the traditional society, showing the first imperial power, light individual rights, public power, private right to light.

2."Dispute" and the "Interim Regulations"

On the formulation of "criminal law", the focus of the argument is mainly concentrated in four aspects:

First, about the "intervening" provisions of the abolition.

Intervening, refers to the children parents, grandparents behavior against.

Second, about the "Liu Yang dear" the abolition of the system.

Liu Yang dear system, established since the southern and Northern Dynasties, has been used in the later. But to the Jiaqing, imperial edict made it clear that this system is attractive.

Third, about the "no husband rape" and "children against the decree", whether it should be convicted

Fourth, about the youngers can exercise the right to self-defense.