For a long time, decrees were the main legal form in ancient China, so they were called the laws of ancient China or the laws of laws. Qin and Han dynasties are an important stage of the origin and development of the legal system. > > The legislative activities in the Qin and Han Dynasties, according to the records in the Criminal Law of the Book of Jin, constitute the following development pedigree: There are six laws, namely, thief, thief, net, arrest, miscellaneous and weapon; In Qin Xiaogong, the State of Qin ruled the country by "law and classics"; In the early years of the Western Han Dynasty, on the basis of inheriting the Qin law, three articles, Xing, Ma and Hu, were added, which were designated as "Nine Laws". Under this main line of development, the Han law has developed: during the period of Emperor Wu of Han Dynasty, Shu supplemented the Han law into eighteen chapters, Zhang Tang formulated 27 "laws of crossing the palace" and Zhao formulated 6 "laws of facing the court"; After Emperor Wudi, laws and regulations kept expanding. "Literature is abundant in several pavilions, but the canon can't be collected" (History of Chinese Criminal Law). Among them, "Nine Laws" is the basis of the laws and regulations of the Han Dynasty. For a long time, academic circles have been skeptical about these records in ancient books. However, when we look up the Qin and Han laws found in unearthed bamboo slips, we can't find the difference between "six chapters" and "nine chapters" and "non-six chapters" or "non-nine chapters". By comparing the historical documents about "legal classics" and "nine chapters" in different ancient books, it is not difficult to find clear traces of the "layered" construction of the classical legal system. Appellations such as "Lu Zheng" and "Bian Zhang" should be the value judgments of later generations rather than the factual statements. Xu: Review of laws and regulations and legal system in Qin and Han Dynasties in recent two years, published by China University of Political Science and Law, Research on Ancient Chinese Legal Documents (Series 3), China University of Political Science and Law Press, 2007, pp. 232-235. . Although we can't blindly deny that there is a problem with the evolution system of Qin and Han laws recorded in ancient books, at least we should not believe it as before; How to explain the differences between ancient books and bamboo slips has become a key issue in the study of Qin and Han laws and regulations. & gt& gt As far as we can see, there was no "code" in the Qin and Han Dynasties, and the legal system consisted of several legal forms, each of which had no strict distinction between crime and non-crime, punishment and non-punishment. The legal forms in Qin and Han Dynasties are law, order, science, taste and comparison. & gt& gt Law is the most basic legal form. It has always been a controversial issue to sort out the contents of laws and regulations in Qin and Han Dynasties. The common records of "a certain law" in literature (such as "barbarian law" and "except disciple law") can not be used as the title of a certain law, but may be the abbreviation of a certain law. Take the bamboo slips of Qin tomb in Shuihudi and Han tomb in Zhangjiashan as examples. There are about 20 Qin laws and nearly 30 Han laws in two years, which have already exceeded the scope of six laws or nine laws. & gt& gt During the Qin and Han Dynasties, "'law' can be the carrier of criminal law, as well as the manifestation of civil, administrative and economic laws and regulations." Xu: Non-penalty legal mechanism of Han society (revised draft), paper of academic seminar on "Breaking the prison with righteousness and traditional law" (Institute of History and Language, Academia Sinica), Taipei, 10, 2004. As far as the laws of two-year decrees are concerned, they can be roughly divided into three categories: first, they basically belong to the criminal law, and the more prominent ones are "stealing the law", "stealing the law", "arresting the law" and "having the law"; Second, it is between criminal law and non-criminal law, such as "hukou law", "calligraphy" and "effective law"; Third, it has nothing to do with criminal law, such as "giving law", "fu law" and "rank law" This is almost unknown to us before. Order is an important legal carrier second only to law, and the supremacy of imperial power endows it with independent legal character, making it a direct source of law. There are three ways to issue decrees: first, the emperor directly exercises legislative power and uses the words "writing decrees" and "writing decrees" in the imperial edict; Second, the emperor entrusted the minister to exercise the legislative power, and the imperial edict used words such as "promising decree", "discussing decree" and "discussing decree", which became a decree after the legislative content was made; Third, the official made invitations within the scope of their functions and powers, and the emperor made them and issued them in the form of imperial edict. & gt& gt After the Wei and Jin Dynasties, "the law is controlled by the positive, and the order is governed by the obedience system", but the relationship between the law and the order in the Qin and Han Dynasties was more complicated. The first is the change of laws and regulations. This is obvious in the early history of law. Law, as the carrier of law, appeared later. From the end of the 4th century to the middle of the 3rd century, the "Tian Law" in Qing Chuan's wooden slips and the "Hu Wei Law" in Crouching Tiger Bamboo Slips were the original forms of law. "Although it is called" Fa ",it is quite similar in form to imperial edicts and separate decrees issued by the monarch since the Yin and Zhou Dynasties." Zhu Zongbin: On the Problem of "Turning Law into Law" in Ancient China, in Collected Works of Zhu Zongbin's Academic Research, Sanqin Publishing House, 2006, p. 333. There are traces of decrees in many laws in Qin and early Han dynasties, and some laws can be determined to be transformed from decrees. The second is that law is the mainstay, supplemented by order. As a supplement to law, order has expanded the object and scope of adjustment. The will of the ruler can be realized at any time through irregular orders. Compared with the stability of law, the Han dynasty supplemented the law in a large number of orders. In the process of determining punishment and measuring crimes, most of them act according to laws rather than orders, which is also the performance of the main order of law. The third is the separation of laws and regulations. On the one hand, the so-called law is linked to punishment, which becomes the consent language of "punishment", and some non-penalty laws gradually appear in the form of orders; On the one hand, special or mainly procedural legal provisions appear, basically eliminating the punitive content in the Central Plains. During the Qin and Han Dynasties, many non-penalty laws appeared in the later generations in the form of decrees, which were typical of the development of decrees in different ways. The appearance of this phenomenon has a lot to do with the contents of laws and regulations in Qin and Han Dynasties. & gt& gt briefly said the law, and then look at the theme, quality and comparison. There is a great controversy in academic circles about whether there are branches in the Han Dynasty. There are books about the theme of "buying and enjoying" in Juyan's new bamboo slips, which are generally considered as the specific form of the theme. The subject is based on the basic spirit of laws and regulations, with the changes of the times and situation, to adapt to different situations and solve new problems with specific and detailed explanations. The record of "the old laws and regulations, each with its own subjects" in the Book of Andy Ji in the Later Han Dynasty clearly shows the relationship between subjects and law. This legal commodity form seems to have similarities with the family. "Han Shu Aidiji" has "famous farm animals and handmaiden goods", which stipulates the number of fields and handmaiden that people of different grades should occupy; There is a bonfire contract in Han bamboo slips, which is the detailed rules of the border guard organization about the signal of burning ceremony bonfire. As far as the specific contents of "purchasing rewards" and various products are concerned, it seems that it has little to do with conviction and sentencing, and more appears in the nature of administrative norms. Judging from the case of "bonfire contract", once the contract is violated, the relevant punishment is stipulated in the Criminal Law of Han Dynasty. Comparison is a common legal term in Han dynasty, and it is one of the forms with legal source effect. In the legal sense, comparison refers to established laws and precedents. When other laws are invoked to decide a case because there is no proper law, comparison is another kind of enforcement, so the decided case has legal basis effect. Judgment ratio is the basis of judgment compiled by category. Comparison can explain the value of laws and regulations, supplement the provisions of laws and regulations, and improve the implementation of written laws. Because Bi is not attached to the written law, there is no restriction mechanism in its application, which can not effectively prevent the leading role of will. Therefore, * * * strongly criticized as "if you want to live, you will live, and if you want to fall, you will die" (recorded in the Criminal Law of Hanshu). & gt& gt The above legal forms constitute the framework of the legal system, and the specific clauses become the flesh and blood of the legal system. Looking at the contents of legal provisions in Qin and Han dynasties, it is hard to say that laws only protect the interests of the ruling class, and many of them stipulate and protect the rights and interests of ordinary people. In addition to the penal system, judicature and litigation, the legal provisions in the Qin and Han Dynasties were quite extensive: (1) a complex system of charges. The charges include crimes against national security, crimes against imperial power, crimes against personal rights and interests, official crimes, moral crimes and military crimes. (2) Criminal laws and regulations. The content involves rebellion, rebellion, theft, murder, beating, ignoring people and buying people. (3) Administrative regulations. It involves the establishment of officials, the level of salary, the selection of courses, the rights and interests of posts, and the operation of postal delivery. (4) marriage and family. In marriage, it involves the abandonment of husband and wife's status and wife's property rights; On the family side, it not only maintains the relationship of honor and inferiority in the family, severely punishes the crime of unfilial, but also stipulates the inheritance of titles, heads of households and property. (5) Economic production laws and regulations. The content involves tax corvee collection, monetary legislation, market economic order, agricultural production and so on. In the Moon Order, which is closely related to agricultural production, many provisions emphasize the "harmonious development" between man and nature, and the color of "environmental protection" is quite strong. In addition, there are many aspects such as debt and creditor's rights. Great changes have taken place in the criminal punishment system during the Qin and Han Dynasties. There are death penalty, corporal punishment, labor punishment, property punishment and relocation punishment. The death penalty is a punishment that deprives people of their lives, with names such as beheading and abandoning the city. There are several kinds of corporal punishment, such as scraping the skin with denomination, then painting it with ink, licking (cutting off the nose), cutting off the left and right toes (cutting off the left and right feet), and castration (cutting off the power of men and claustrophobic women). As an external symbol of punishment, corporal punishment is generally used in combination with penal servitude (also called imprisonment). The types of labor are (male for Qiang, female for Qiang), white curse of ghost reward (male for ghost reward, female for white curse), shepherd and official concubine. Judging from the available data, there was no sentence for criminals before Emperor Wendi's penalty reform. Due to the irregular issuance of imperial edicts, the punishment of hard labor should actually belong to "irregular punishment" Generally speaking, penal servitude is graded according to its content, but the name of penal servitude may not be consistent with its content. For example, it is usually said that men build cities and women pound rice, but the labor that men and women engage in is often beyond the scope of building cities and pounding rice. & gt& gt Under the punishment of corporal punishment and hard labor, there is one sentence that can be completed and endured. Say that finish this sentence, it is Chengtou. Tolerance for punishment is third-class, that is, tolerance for being a ghost, tolerance for being a servant and tolerance for being a shepherd. Don't impose physical punishment on your fingers, and keep your body intact; Tolerance is to remove needs, which is also a general term for a class of crimes. The reform of punishment, the abolition of corporal punishment and the determination of punishment amount in the period of Emperor Wen are of epoch-making significance in the history of ancient punishment in China. After the penal reform of Emperor Wendi and Emperor Jingdi, the sequence and duration of penal servitude were gradually determined as follows: city penalty (5), city penalty (4), ghost penalty (3), sheep penalty (2) and sheep penalty (the term is one year, six months and three months). In property punishment, there are mainly fines (called "you" in Qin dynasty) and redemption punishment. Fines are generally applicable to misdemeanors, and the level of fines is determined according to the severity of the crime. The function of redemption penalty is different from statutory penalty and substitute penalty. The level of redemption punishment listed in the "Two-year Law" is six levels: redemption of death, two pounds and eight ounces of gold; Redeem the city, the ghost pays white, and the gold is a catty; Redemption, corruption, gold a catty of four Liang; Redemption, jealousy, a catty of gold; Redemption, twelve taels of gold; Redemption, 82 taels of gold. Bamboo Slips of Zhangjiashan Han Tomb, p. 150. The punishment of moving is the punishment of exile and the punishment of forcing prisoners to move to designated areas. The common method of transferring punishment in Han dynasty is to guard the border, and the fixed number of years stipulated in the Two-year Law varies from one year, two years and four years. & gt& gt During the Qin and Han Dynasties, the highest judicial organ in China was Tingwei Temple, and its chief was Tingwei. Ting Wei is composed of officials in charge of left and right, left and right equivalence. Ting Wei is in charge of national justice, is responsible for hearing major cases, accepting and hearing difficult cases reported by local authorities, and is also responsible for some "prison summons" (cases ordered by the emperor) involving senior officials of the court and relatives of the royal family. County magistrate, county magistrate, with judicial functions, handling local prison cases; Villages below the county level also have certain judicial power, which is responsible for catching thieves, mediating disputes and rehabilitating wrongs. "Han Law" clearly stipulates the judicial authority of county magistrate. Under normal circumstances, the county magistrate is not allowed to break the prison or be imprisoned. If the officials in the department handle the case improperly outside the scope of their functions and powers, the officials who are not in the department will bear joint responsibility. In the seventh year of Emperor Gaozu (the first 200 years), the Imperial Decree on Suspected Prison was promulgated, which stipulated that the procedure for reporting suspicious cases was: county magistrate-county magistrate-Tingwei-emperor. In other words, when a place encounters a difficult case, it needs to be reported step by step. If Tingwei can't handle it, report it to the emperor, and the emperor will make the final decision. This is not only the power level of administrative management, but also the link distribution of judicial authority. If judicial officials fail to hear cases fairly and justly according to law, they will face charges of irrationality, inaccuracy and failed judgment. & gt& gt During the Qin and Han Dynasties, the word "litigation" at that time was called "accusation": accusation was that the parties directly filed a lawsuit with the judicial organs, while accusation was that the government or bureaucrats directly corrected the criminals. In the process of acceptance and trial, the government should take the charge of disintegration as the basis, and shall not arbitrarily seek other charges. Immediately after the alleged illegal act, arrest and interrogate. The "letter of accusation" in the Qin bamboo slips "Seal Diagnosis" clearly embodies the procedure of accusation-execution-inquiry, and so does the Han law. At the beginning of inquiry (interrogation), officials have the obligation to inform the parties of the "Evidence Law" and tell them to seek truth from facts and prohibit perjury. On the basis of trial, under normal circumstances, a judgment is made according to law and the trial result is reported to the superior. If the parties think that the judgment is improper, they can request the above retrial, which was called "begging" at that time. After the judgment takes effect, it must be executed according to the regulations.