Judge’s Judicial Ideas in the Period of the Qing Dynasty
|Keywords||equality idea humanity idea reason idea|
The judicial ideas are the subjective consciousness which influence judge’s behavior. Through sociological method, we try to discriminate and arrange judge’s judicial ideas system in the period of the Qing Dynasty. This article selects the handbooks of admonishments for officials, the proverb, the vulgarism, the antithetical couplet, the poetry, the diary and so on, which are authentic, universal, and in-depth. The discrimination of ideas is to study the performance, function and characteristic of the ideas of equality, humanity and reason. The arrangement of system is to study, define and rank various ideas as well as the ideas’relations.The whole thesis comprises four chapters.Chapter one: Judge’s equality idea in the period of the Qing Dynasty. Neutrality is the foundation of the equality idea, and judges request themselves to judge without selfishness and angry. When judges try the criminal case, in order to realize equality the penalties must accord with the plot, not only the legal plot but also the plot outside the law, to get poetical justice; poetical justice lies in penetrating criticism, so judges decide author’s subjective malignancy and possibility of recommitment. According to the behavior performance, like the behavior motive, the nature, the violation object, the method, the result and so on. Judges try the civil case in order to protect common people’s rights of property, taking litigant’s free wish, and insisting the mistake and fair responsibility principle.Chapter two: Judge’s humanity idea in the period of the Qing Dynasty. Judges feel compassion for the litigant without happy, and are inclined to give the offenders a light sentence, Which Often leads to tolerate the criminal, under reconsidering proposing“humanity of the non-woman”. In judicial activity Judges cherish properties and reputation of the common people, Therefore propose the ideas of appease litigation, fast end, stopping the dispute once and for all, strict administrative style for local officials, and the cautious penalty, and so on. To protect the harmonious social relations, judges advocate“refuting most petition”, mediating with the rest in front of examining procedure; In the trying procedure the results bend to rules for the harmonious relations of patriarchal clan, the relative, the fathers and sons, the neighborhood and so on. Judges help the litigant to solve the difficulty.Chapter three: Judge’s reason idea in the period of the Qing Dynasty. On the one hand, judges analyze the facts of the case according to reason. The judges must thoroughly understand the reason in society. The reason may be divided into the human relationships and the logic. The judges have a more comprehensive grasp of reason. The reason has the objectivity and the probability. Judges use the reason with the bold and careful manner. Different judge has different understanding to identical reason. On the other hand, judges persuade Litigant with the reason. The reason can move one’s heart, and the Litigant can be moved by the sentiment, educated by reason, directed by interest. Judges use reason with all their heart, the wisdom, and can analyze and explain the reason in the reason.Chapter four: Judge’s judicial idea system in the period of the Qing Dynasty. The ideas of the equality, humanity and reason constitute judge’s judicial idea system in the period of the Qing Dynasty. They correspond to the legal spirit, also have the conflict. Facing the conflict, judge’s decision may be have either slight or significant deviation with law. Not law but ideas of the equality, humanity and reason are the highest values. In face of conflict, in the property rights case, the judges make the slight deviation, sometimes also significantly deviation. In the status civil case, in order to respect the bilateral free wish, the judgments have easily the significant deviation with the law. In the slight criminal case, there are either slight or significant deviation between the judgments and the law. The article emphasizes that when trying significant criminal case, the judges take either conservative or positive countermeasure for the judicial ideas. Judge’s conservative behavior is common and found easily, namely in document applying to the higher authority to accommodate. With the judge judicial ideas’influence, when trying significant criminal case the judges can adopt the positive method. They often integrate the significant criminal cases into self-judge case, but also can adopt more positive and concealed method, namely tailoring the plot. They have harmony and contradiction. Because of harmony there are some decides which are equal, humane and reasonable. These ideas are different: the equality is the base of justice itself, and the key is fair; the humanity is based on the Confucianism; reason is based on Golden Mean, the key is multiple appraisals. Theoretically in the judicial idea system three position steps are: the reason idea > the humanity idea > the equitable idea; in the judicial practice three position steps are: the humanity idea > the reason idea > the equitable idea.This article has discriminated and arranged judge’s judicial idea in the period of the Qing Dynasty, and has analyzed cultural contents of the judge’s judicial idea during the process. This article has five innovations: First, new angle for research. To research judge’s judicial idea in the ancient times is still at the blank stage at present. The majority scholars pay more attentions on the judicial basis, although the achievement will be rich, but will not seek other angles further thoroughly to study. This article unscrambles judge’s judicial culture in the period of the Qing Dynasty from the angle of judicial idea, which has great originality. Second, scientific select for material. Scientific select for material is the key to get a correct finding. This article selects the handbooks of admonishments for officials, the proverb, vulgarism, the antithetical couplet, the poetry, the diary and so on, which are authentic, universal, and in-depth. Third, uses inherent concept in the period of the Qing Dynasty. This article use prudently the Western theory and concept of legal science to summary and appraise the judge’s judicial idea in the period of the Qing Dynasty, but often use the concepts of equality, humanity and reason, which are inherent concepts in the period of the Qing Dynasty. This choice implies the in-depth intention, namely sympathize the judge’s emotion as far as possible, and feel their inner world in the period of the Qing Dynasty. Fourth, clarify the existing viewpoints. At present there are some fuzzy and illiberal discussions about judicial basis in the period of the Qing Dynasty. For example, considering when judges in the period of the Qing Dynasty try important case, they decide a case based on the law. Through deep research of the massive material, this article finds that the ideas of the equality, humanity and reason affect judge’s decision, not only in the civil and slight criminal case, also in the significant criminal case. Fifth, extend the research area. Researches on judge’s judicial idea in the period of the Qing Dynasty are mainly found in fragments in some monographs about traditional legal culture. These researches are not only weak, also for whole period, which lacks the body system. The full analytics in this article is an attempt to extend the research area.