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The punishment between Confucianism and Law is based on the argument: the ancient and modern Chinese and Western principles of the Qing Dynasty’s slandering rules*
Author: Xie Jing (Doctor of Law, Deputy Professor of the Chinese Academy of Political Science and Law)
Source: “Academic Monthly” May 2019
Time: Confucius was in the 2570 year of the year of the 25th day of the 25th day of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th month of the 25th
——”Shang Jun Book·Jin Ling”
Table of Contents
1. Introduction: Because it is illegal and not to break the law
2. The crime is worthy: the reason for the punishment of the punishment
3. Killing one to warn a hundred: the serious and serious discussion of the threat of severe punishment
4. Be generous and elegant: the teaching and correction of broad and kindness of teaching
5. Conclusion: gift, joy, punishment, and politics, and it is absolutely true
Abstract
Modern criminal law from the East has the important theory of punishment and punishment based on the theory of punishment and punishment. The two Confucian and Legal schools, which have the most profound impact on the legal system in our country in the traditional era, have also explored related issues, and can be basically classified into the “unified theory” faction, that is, the report of punishment, authority and correctiveness of teaching. Admitting punishment is a report of crimes and preventing violations is the goal of punishment. However, in order to prevent violations, Legalism emphasizes the power of punishment and punishment, while Confucianism pays more attention to the correct side of its teaching, and Legalism believes that it is enough to only rely on the punishment and punishment to prevent violations. Confucianism advocates the comprehensive effects of honor, joy, punishment and politics. The cooperation between Confucianism and Law has shaped the development structure of my country’s traditional legal system for thousands of years. The traditional punishments and punishments shown by the Qing Dynasty’s scattered punishments are also inspired, confused and evolved between the various concepts of Confucianism and Law. The contemporary law and system in our country are all from the East, and these theories and practical experiences of the traditional era can become a benefit-free supplement.
Keywords:Laws and regulations; Regulations; Prisons and punishments are based on; Prisons and punishments Philosophy
1. Introduction: Because it is illegal and not illegal
What is the basis for punishment [①]? In other words, why should we punish people who violate the law? [②] This is a topic that has been discussed and debated continuously by criminal legislation, justice, and researchers in ancient and modern times, both at home and abroad. It can be said that “the topic that is most discussed in criminal law theory.” [③] Because the answer to this question involves “the scope of punishment for dangerous behavior, as well as the content and scope of punishment”:
If the legislator determines the sentencing of a concept of violation of law In terms of amplitude, he needs a standard; the judge determines a specific criminal punishment for specific violations within the amplitude of the criminal punishment, and also needs a standard; the officer who executes the criminal punishment to give a specific content in the execution of the criminal punishment, and also needs a standard.
In the initial stage of human civilization history, Liszt pointed out that punishment is “a self-conscious, natural, primitive, and undecided by goal thinking of the society’s internal erratic behavior of the individual and the society composed of specific members.” With the development and progress of human wisdom, punishment has gradually changed from “natural behavior” to “will behavior” and is given moral, ethical or legal meaning and goal. [④] Since then, there have been many theories about the basis of punishment in the history of Oriental Criminal Law, and can be deemed to be punished as three types: criminal theory, prevention (target) criminal theory, and merging theory.
The criminal prosecution is also called the opposite of the argument, “to understand the punishment and punishment as a report on violation of the law, that is, punishment and punishment are crimes for crimes”, which is called “the punishment and punishment are punished because of violations.” Prevention of criminal prosecution (target of criminal prosecution, relative meaning) believes that “the punishment does not mean anything, and it is valuable as long as it is the meaning of preventing violations in order to achieve the certain goal, that is,” that is, “the punishment is punished in order not to violate the law”, based on the target of prevention The differences can be divided into two categories: ordinary prevention and special prevention and special prevention and treatment. According to the differences in prevention methods, ordinary prevention is divided into ordinary prevention (magnanimity) and ordinary prevention and control, and special prevention is divided into powerful prevention and control (teaching) criminal theory. Since the general prevention of the virus and the threat in special prevention are both based on the method of threat, the ordinary prevention of the virus and the corrective (teaching) criminal theory in special prevention both connotate the reasons for the correctiveness of the teaching, so the prevention and punishment can also be divided directly from the perspective of the prevention method into two categories: the threatening and punishment of the teaching and punishment of the teaching and punishment. The combined theory is a combination and compromise between two theoretical arguments of punishment and prevention. It is believed that punishment is “on the one hand to satisfy the right request of evil and evil, good reporting, and at the same time it must be necessary and useful to avoid breaking the law. When the goal of ordinary prevention and special prevention should be realized within the scope of punishment,” the law stated that “the punishment is imposed because it has violated the law and has not violated the law.” [⑤]
The theory and conceptual theory of criminal law and discipline that did not form such a system in our country’s traditional era, but there are no lack of relevant thoughts and practices in the history of law and decrees over thousands of years. Legalists do not need to say much, and have always emphasized the main nature of the rule of law and punishment, while Confucianism advocates the guidance of virtue.Gifts rather than punishments to govern the whole country, but it still admits that it is difficult to avoid “those who are violent rejected and disbeliefs refuse to believe them, and those who are surrendered will never act as a punishment.” [⑥] Therefore, “the gifts become punishments”, and [⑦] Confucianism does not absolutely punish punishments. As the school with the most in-depth impact on traditional China’s legal system, both Confucian and Legal schools have explored the problems related to punishment and punishment, and have also started from three aspects: reporting, authority and teaching and correction. In general, both institutions acknowledge that punishment is a crime and both regard the prevention of violations as the goal of punishment. In terms of the target of preventing violations, both schools pay attention to both general prevention and special prevention at the same time. Their inconsistency lies in the specific skills of prevention. In contrast, the Legalists pay more attention to the power of punishment and punishment, while Confucians tend to use the teaching of punishment and punishment to correct the consequences. These ideas of the Confucian and Legal schools were also fully melted into the dynasty and practices of later generations.
The current academic community discusses the punishment and punishment based on the arguments, and only occasionally talks about the relevant issues in Chinese tradition. [⑧] Their discussions on the problems of traditional Chinese punishment and punishment are mostly limited to historical considerations and issues, and there are fewer systems for the theory of statutory theory based on the argume
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