Wu Tingfang, an outstanding politician, diplomat and jurist in the late Qing Dynasty and early Republic of China, was the first doctoral in law in modern China. He once presided over the signing of the Sino-Mexico Trade Treaty, the first equal treaty in modern China.

Guangzhou Yuexiu Mountain, its epitaph was written by Mr. Sun Yat-sen. Wu Tingfang, an outstanding politician, diplomat and jurist in the late Qing Dynasty and early Republic of China, was the first doctoral in law in modern China. He once presided over the signing of the Sino-Mexico Trade Treaty, the first equal treaty in modern China.

　　It is generally believed that Chinese law originated in the Xia Dynasty. With the emergence of private property, the concept of private ownership gradually emerged in the consciousness of some wealthy people. In "The Book of Songs·Daya·Datian", there is a sentence "I rain on my public fields, so I can reach my private fields", which reflects that civilians also have a small amount of land. The emergence of private property has greatly promoted the development of laws, especially civil and commercial laws, and the implementation of laws has promoted the formation of judges and trial systems.

　　1.

　　In the bronze inscription for two weeks, cases of civil litigation are recorded. For example, the "Kou He" case in the inscription of "The Legend of the Ding" tells the story of the year of famine. Kuang Ji instructed his slaves to steal the rice from the ten thousand pieces, and used this to sue Kuang Ji in the magistrate's East Palace. The Eastern Palace blamed Kuang Ji for his infringement. After several mediations, Kuang Ji agreed to compensate 20 gigabytes and deliver them the following year. If the contract is not fulfilled, he will be fined 30 gigabytes. This case was a lawsuit between the nobles and was judged by the superior nobleman East Palace. Because both parties are nobles with certain identities, mediation is adopted to close the case.

　　Ancient Chinese law had a distinctive feature: law evolved from rituals. Literature was originally called "to give jade to the tools of gods and men, "It is called rich. It is also called ritual. It is also called ritual when it is recommended to give jade to the things of gods and men." Literature was originally a utensil for offering sacrifices to gods and ghosts. Later, the wine offered sacrifices was also called rituals, and various activities for sacrificial sacrifices were also called rituals. Etiquette gradually evolved from its original state by clan customs and had a certain nature and function of law. The famous legal scholar Mei Zhongxie believed that: "According to what I believe, etiquette is the oldest and most complete civil law in the world." In the dispute between etiquette and law in the late Qing Dynasty, Zhang Zhidong, the backbone of the Westernization Movement and the main promoter of the reform in the late Qing Dynasty, said in the memorial that: "In ancient times, the sage kings in China controlled etiquette and qualifying punishment. The difference in punishment is based on the order of ethics and rituals and the rituals and the ultimate in the laws of nature and human feelings."

　　The law of primitive society was generally lenient, focusing on teaching, and supplemented by money. From the perspective of redemption, some scholars have conducted in-depth research, "In ancient times, if you want to sue, you must first use wealth and property to pay for it, but civil and criminal matters are different." "Litigation is the so-called civil affairs now. Prison is the so-called criminal affairs. If the lawsuit is light, the person will be restrained; if the prison is heavy, the person will be rated with gold."

　　The idea of ​​"clear virtue and prudence" is the core content of the ruling class law idea of ​​the Western Zhou Dynasty, and it had a huge impact on the later Chinese law. "Zuo Zhuan: The Second Year of Chenggong" records: "When the virtues are clear and prudent, the reason why King Wen created the Zhou Dynasty." This is the principle of law proposed by the rulers of the Western Zhou Dynasty in view of the lessons of King Zhou of Shang, the indiscriminate punishment of innocent people, the extravagance, and the death of the country. The "punishment" among them means to implement punishment with caution. The specific principles include: be cautious in judging prisons; distinguishing intentional and negligence from conviction and sentencing and the attitude of the perpetrator; convicting crimes according to law, the crime and punishment are equivalent; not interfering in prison lawsuits; adapting to the times and being leniency and strict appropriate criminal policies.

　　In the Spring and Autumn Period and the Warring States Period, Li Ku, the Wei State, formulated the "Fa Jing" in the process of reform based on absorbing the legislative experience of various countries. This is the first relatively systematic feudal written code in my country's history. The "Fa Jing" has six chapters in terms of the structure of the article, namely: thieves, thieves, prisoners, arrests, miscellaneous, and possessing six methods. In the compilation format, it created a new system for compiling the complete literati code. The system and principles of the "Fa Jing" and even some articles are not only retained in the codes of the Qin, Han, Wei and Jin, but also have a profound impact on later legislation.

　　Volume 90 of "Book of Han" "Biography of Cruel Officials, Sixty" records the biography of Cruel Official Yin Shang. During the Yongshi and Yuanyan periods, Emperor Cheng of Han was lazy in the government affairs and his relatives were arrogant and arrogant. The wandering young men in Chang'an City jointly killed officials. The smoke rose everywhere in the city, and the thieves robbed pedestrians on the road, and dead bodies blocked the road on the street.Yin Shang temporarily served as the magistrate of Chang'an County and was privileged to engage in random activities. After Yin Shang took office, he built Chang'an Prison, made many deep holes into the ground, and then covered the hole with large stones, and called these holes "tiger dens". After completion, the subordinates of households, subordinates and other subordinates were deployed to report the frivolous teenagers and bad children in Chang'an City, and those who do not accept discipline were also checked and recorded all the vendors and craftsmen who had no local household registration wearing dangerous clothes and holding swords and weapons, and identified them as "thieves" endangering social security, with hundreds of people totaling. Yin Shang personally inspected it, threw it into the tiger's den in turn, and finally covered the hole with a large stone.

　A few days later, the people below were already lying on each other and died, so they took out the bodies, buried them and inserted wooden stakes into them, and wrote their names. Only after a hundred days did the families of the deceased dig out their bodies and retrieved them. The families of the deceased cried loudly, and the passing people sighed. Someone sang it and said, "What is your son who wants to die? Huan Dong's youthful life. I'm not careful when I was born, so how can I bury my bones after the dry bones?"

　Yin Shang saw Chang'an for several months, and the thieves stopped moving. Foreign thieves fled back to their hometowns because of fear, and dared not have the idea of ​​spying on Chang'an again. Yin Shang regarded foreign vendors and craftsmen as thieves, which obviously confused the boundaries of punishment and the civil society and was justified in the name of cruel officials. Since then, Yin Shang was dismissed for a time because of his cruel killing.

　　2.

　　"Tang Law Commentary" is the culmination of the ancient Chinese legislative tradition. It inherits and develops the nature of the combination of Chinese traditional laws and laws, mainly criminally, and integrates basic laws at the modern and modern sense levels such as criminal law, civil law, administrative law, marriage law, economic law, etc., and adopts the form of criminal legislation, which almost all focus on crime and punishment. Violations in various areas of social life, and even some acts that seem to be just violations of moral norms today, are stipulated as crimes, and some are serious crimes. The ancient Chinese code system of the combination of all laws lasted for more than two thousand years, and was not broken until the Shen family practiced the law in the early 20th century.

　It is worth mentioning that the "Tang Law Commentary·Miscellaneous Laws" stipulates that the trading behavior of movable property is quite specific, such as the quality of the subject matter of the sale must be qualified and meet the standards. The government that does not meet the quality must confiscate its goods. If the standards do not meet the standards, it must be returned to the original owner. At the same time, it is strictly prohibited to bully the market.

　　The Tang Law attaches great importance to the loan contract and sets out the crime of "debt violation of the contract": "All debts are not compensated for violation of the contract, if one or more is broken, if one or more is broken, if one or more is beaten for twenty days, one or more is added to the first class, the crime will be 60. Thirty days are broken and the second class is added to the third class." "Things that bear hundreds of 100 skulls will be punished for violation of the contract for twenty days, and if one or more is broken, the debtor will be 70. If one or more is broken, it will be deemed to one year." The debtor's rights that are not calculated can be sued by the government, and the government will punish the debtor who violates the contract with a penalty and enforce the implementation of the debt.

　　From the history of the development of law, although there was no distinction between civil and criminal law in ancient times, in fact, from the date of the birth of the law, civil law and criminal liability have been distinguished; although civil punishment methods and criminal punishment methods are used in the punishment methods, the two have been separated. This process was a long process, which was determined by people's living conditions and understanding levels at that time. We cannot use today's standards to demand the ancients.

　　In the Ming Dynasty, due to the development of the commodity economy, laws and edicts that adjusted civil legal relations increased significantly, and the proportion of civil laws in the legal system increased. The Ming Dynasty's "Ming Law" created a "Money Debt". The debt already contains the significance of borrowing debts, infringing debts and unjust enrichment debts. This is a major progress in the history of ancient my country's civil legislation.

　　The law stipulated in the Ming Dynasty that invalid contracts mainly include the following situations: First, private document contracts and real contracts for virtual money are invalid; second, contracts with forced demands and frauds are invalid; third, contracts with illegal subjects are invalid; fourth, contracts with illegal subject matter are invalid.An illegal contract must bear legal liability. A valid contract established in accordance with the law is protected by law and is binding on both parties. If the parties fail to perform, they must bear corresponding legal liability, such as compulsory performance, restraining the debtor's property, discounts on work-related remuneration, fines, reputational responsibility and personal responsibility, etc.

　The Qing Dynasty's "Ministry of Revenue Rules" already had the nature of civil regulations. Some places also have civil legal content in the "Province Regulations" and "Constitutions" formulated by some places, but overall, the inherent distinction between civil and criminal law in its code system remains unchanged.

　　3.

　　The first proposal of civil legislation in modern China is Kang Youwei in the Sixth Book of Emperor Shangqing: Establishing a "Legal Bureau, considering the public laws of all countries, thinking that it is a plan of equal negotiations, or taking into account a new law, implementing it at a trade port to enter the meeting of the Public Law of all countries." In 1902, the Qing court considered the pros and cons and issued an edict to amend the law, appointing Shen Jiaben and Wu Tingfang as ministers to amend the law. In 1904, the Revision Law Museum was officially in operation as the law drafting agency. In the following period, it translated the relevant criminal laws, criminal procedure laws and court organization laws of Germany, Japan, France, Russia and other countries, and revised the old laws.

　In 1905, Shen Jiaben and Wu Tingfang reported that the laws referred to by the courts of the East and the West are separated by civil and criminal disputes. Civil matters refer to household marriages, land property, money debt, etc. Criminal matters refer to murder cases, thieves, fights, etc., and China's civil and criminal disputes are not distinguished, which leads to disputes such as money debt, details, land property, etc.

　After the Qing government announced the revision of the law, the first step was to make partial adjustments to the "Qing Dynasty Laws" that have been used for more than 160 years. With the approval of the Qing court, the "Current Criminal Laws of the Qing Dynasty" was officially completed in 1910, and approved and promulgated by the Qing government on May 5 of the same year. This is a transitional code, which is just a formal "modification, revision, continuation, and deletion of the "Qing Dynasty Laws" and does not break away from the traditional law "combination of all laws". It is just that those who involve distribution of property, land, houses, money and debts are no longer punished, as a sign of "a compromise between the new and the old". In early 1911, the "Fresh Criminal Laws of the Qing Dynasty" revised in the late Qing Dynasty was promulgated. This was the first criminal code in modern China and one of the most important laws.

　　In the drafting and revision of the "Fresh Criminal Law of the Qing Dynasty", the "controversy over etiquette and law" in the late Qing Dynasty was very fierce. It is worth mentioning that Mr. Shen Jiaben, a Jinshi from the ninth year of Guangxu (1883), was proficient in Confucianism and philology, and inherited the textual methods and spirit of seeking truth in Chinese academic tradition. He began to come into contact with and study foreign laws at the age of 66, hoping to combine Confucian moral code with European criminal mechanisms and attach importance to the ideal of ruling punishment and benevolent government. A poem by Mr. Shen Jiaben shows his state of mind when practicing the law: "I learned from the new world in today's world, and I will become a human being after I graduate. The young couple likes to have a preacher, and the old man must also be a scheming." This spirit of learning and courage to practice the law make our younger generations admire it.

　　At the time of formulating the criminal law, the Qing government has begun to pay attention to some theories and practices of the division of legal categories in Western methodology. In 1907, the Constitutional Editorial Inspection Hall proposed a plan to further revise the law, and in 1911, the Law Hall completed all drafts. The "Draft Civil Laws of the Qing Dynasty" was drafted in the German-style civil law in the mainland legal system, and was divided into five pieces, namely: general provisions, creditor rights, property rights, relatives, and inheritance. Among them, the principle of freedom of contract is established in the creditor's rights section. The draft was submitted to the Supervisory Council for review, but it was not announced until the fall of the Qing Dynasty. Although there was no special civil law in the late Qing Dynasty. However, this draft Civil Law ended the "combination of all laws and no distinction between criminals and civilians" in my country for thousands of years, although this distinction is not thorough.

　　Apart from invoking the laws of the late Qing Dynasty during the Beiyang government, it specifically pointed out that "the draft civil law was not announced in the Qing Dynasty and could not be used. In the future, all civil cases should still be handled in accordance with the provisions of the current laws of the Qing Dynasty." In response to the new situation, the Beiyang government set up a special editorial agency, attached great importance to criminal legislation, and formulated draft criminal law twice.In February 1914, the Law Compilation Commission began drafting the Civil Code and compiled it into the Relatives Compilation the following year. In July 1918, the Revision Law Museum referred to the draft civil law of the Qing Dynasty and formulated the Civil Law, which was completed by 1926. It was also ordered that this draft be used as an invocation of the regulations and not to be promulgated as a formal code. In January 1929, the Nanjing National Government established the Civil Law Drafting Committee. In May, the General Principles of the Civil Code were promulgated, and the "Civil Code of the Republic of China" was promulgated in 1931. At this point, civil and criminal punishments were completely separated.

　　On February 22, 1949, the Central Committee of the Communist Party of China issued the "Instructions on the Abolition of the Six Laws of the Kuomintang and the Determination of Judicial Principles of Liberated Areas", which clearly abolished the legal effect of the "Six Laws of the Kuomintang, including the Civil Code of the Republic of China".

　After the founding of New China, in 1954, the Standing Committee of the National People's Congress began to organize forces to start drafting the Civil Code. After going through ups and downs, on May 28, 2020, the Third Session of the 13th National People's Congress voted to pass the Civil Code of the People's Republic of China, which will come into effect on January 1, 2021. The Civil Code of the People's Republic of China has 7 chapters and 1,260 articles, each chapter is general provisions, property rights, contracts, personal rights, marriage and family, inheritance, tort liability, and appendix. The Civil Code of the People's Republic of China is the first law named after the Code since the founding of New China, and it is also a document of protection and declaration of civil rights. I sincerely look forward to this Civil Code that can follow the footsteps of the new era, enter our lives and our hearts.

(Source: Procuratorate Daily)