After studying criminal law and civil law, many people can't help but feel this way: China's criminal law system is so developed and perfect, but civil law makes people can't grasp the pulse, and it is not as complete as the criminal law. We all know that China is a developed country with written law, and the evolution of ancient Chinese legal codes is clear and consistent, whether it is "Lu Xing" or "Fa Jing" or "Tang Law Shu Yi", "Song Criminal Tong", etc., it can be said that it can be said to be a criminal code. Among the many codes of law, there is not a single civil code or code of a civil nature. So was there a civil code in ancient China, and if so, how did it work; If not, what are the norms that regulate various social relations in the civil sphere, and how is their nature determined? With these questions in mind, I have flipped through several ancient Chinese legal codes and the treatises of modern Chinese scholars on this subject.

Although China has a long history of civilization that has been quite developed since ancient times, it has never developed a system of private law from its own traditions. The so-called law in China is, on the one hand, the criminal law, and on the other hand, the organic law of the bureaucratic ruling body, which consists of administrative enforcement rules and penalties for violating the rules. China's traditional legal culture can be said to be a public law culture. Although it is true that there are provisions on civil, economic, marriage, family, litigation, etc., these provisions are criminalized and can be classified as criminal law in nature. Public law refers to acts that involve the coercive organs of the State, i.e. they serve the existence, extension and direct implementation of those purposes to which they are applicable in accordance with the statute or tacit agreement. It regulates primarily the relationship between the State and the State and the individual, and the two parties to the subject of law in the field of public law (the State and the State and the individual) are not equal in status. Private law is an act that has nothing to do with the coercive apparatus of the state, but can only be regarded as an act regulated by norms by the coercive apparatus of the state. It mainly regulates the relationship between individual citizens, and in essence, it is completely civil, so that the two sides of the subject of law (citizen and citizen or citizen and legal person, legal person and legal person) are on an equal footing. From this, we can see that the so-called public law culture is essentially a criminal (criminal or national) legal system and its consciousness; Private law culture is a civil (civil or private) legal system and its consciousness.

(1) Public law culture

How did China's legal culture – the culture of public law – come about? What are the forces that have pushed it to the opposite side of European legal culture? Let's find out its historical origins. China is an ancient civilization with a long history and splendid culture. Chinese civilization was born under a special natural and historical conditions, and has developed independently according to its own cultural logic and historical laws for a long time, forming a unique civilization model. From the pre-Qin period to the late Qing Dynasty, although there were invasions of foreign nationalities or foreign cultures entering "China", China has always been a long and continuous civilization composed of Confucianism as the dominant value. All the changes in China's history do not hurt the great traditions of the nation and the state. As a result, Chinese history has only been a continuation of the unity and expansion of the layers of progress, and it is rare to completely overthrow and re-establish the so-called revolutions of the modern Westerners. In terms of law, ancient Chinese society has created a legal culture with a long history, a consistent lineage, and unique characteristics.

Since the Xia Dynasty entered the class society, China's legal culture began to grow and develop on the basis of the primitive customs and culture of the clans and tribes in the past. After the Xia and Shang dynasties and the Western Zhou Dynasty, the basic pattern and characteristics of China's legal culture and tradition were initially laid. In the Spring and Autumn Period and the Warring States Period, Chinese society entered a period of great change and turmoil, and Chinese culture began a great fission and pluralistic movement. By the time of the Han Dynasty and the Han Dynasty, the ancient Chinese legal tradition had been basically formed. Emperor Wu of the Han Dynasty pursued the cultural policy of "deposing the hundred schools of thought and respecting Confucianism alone", which formally established the official ideological status of Confucianism. The ancient Chinese legal tradition passed through the Wei, Jin, Southern and Northern Dynasties to the Sui and Tang dynasties, and then entered a state of maturity and development. The Yonghui Law of the Tang Dynasty represents the crowning achievement of ancient Chinese law. After the Tang Dynasty, the Song, Yuan, Ming, and Qing dynasties basically developed on the basis of the legal system of the Tang Dynasty, and there were gains and losses.

In my opinion, the ancient Chinese legal and cultural tradition has the following basic characteristics that are relatively stable and interrelated:

1. Familial tradition

The patriarchal family is the basic unit of society and is a basic feature of ancient society. In ancient times, the family was a social unit with a distinct distinction between the noble and the lowly, in which the older male respected the head of the family and had the right to decide and control all affairs within the family. The structure and ethics of the Chinese family have universal cultural and social significance beyond itself. In the minds of ancient Chinese, home and country could not be clearly distinguished. On the contrary, they often mention the family and the country together, from the home to the country, from the family to the country. At the same time, the ethics of the family are also transformed into the ethics of politics. People deduce loyalty from filial piety in family ethics to loyalty in political ethics, and from the kindness of parents in the family to the benevolent government of the monarch.

From the perspective of the ownership of state power, all Chinese dynasties are a dynasty with one surname, and the rise and fall of dynasties are closely linked to the fate of the royal family. Before the Qin Dynasty, state power was established entirely on the basis of blood kinship rather than the principle of administrative division, forming a patriarchal state in the true sense. Here, blood relations form a one-to-one correspondence with political power relations, and between family structure and state power structure. This is true of the emperor and his family, and it is the same with ordinary people and their families. The rise and fall of a family inevitably affects its members, and the rise and fall of the status of family members in turn affects the family. As the saying goes, "one person attains the Tao, and the chicken and dog ascend to heaven", and "one person commits a crime, and the nine tribes are connected".

2. Ethical-based tradition

Different cultures may have different understandings of social relationships between people. In the eyes of people in ancient Chinese society, the social relationship between people was mainly an ethical relationship. Feel free to develop your life at your own age. And gradually there are countless relationships in all directions, such as near and far. It's a relationship, it's all ethics; Ethics begins at home, not beyond family.

This ethical-oriented spirit is manifested in economic life, that is, an ethical-oriented economic life, and the economic relationship between people is subject to the adjustment of family ethics, which is manifested as an ethical relationship. It is precisely because people look at property relations from an ethical point of view, rather than from the perspective of individual rights, that the legal system of property rights in ancient China is very underdeveloped. It is no wonder that Liang Shuming said: "China's laws have reached an extremely detailed level at an early stage. …… However, China has ignored the issue of property rights and claims caused by the codes of various countries for thousands of years. Gai Zheng is a social organization starting from ethical friendship, human affection is the most important, and property is light, which is one of them. Ethics is righteous because of circumstances, and everything in Chinese law is based on the concept of obligation, not on the concept of rights. Knowing this, it is natural to ignore the property claim. ”

Politically, ancient Chinese politics was "ethical politics", with rulers mixing religion, law, customs, and etiquette. All these things are moral. All these things are virtues. The precepts of these four are the so-called rites. It was because of the strict adherence to this religion that the rulers of China succeeded. "However, there is only the ethical duty of the monarch, the minister, and the people, and there is no understanding of the relationship between the people and the state. Therefore, in China, there is no distinction between public law and private law, and there is no distinction between criminal law and civil law. —Liang Shuming.

In terms of law, Chinese law is an ethical law. The basic characteristics of this kind of ethical criminal law are the unification of etiquette and the integration of etiquette and law, or the legalization of morality and the moralization of law.

3. The tradition of rule of etiquette and rule of virtue

In the eyes of the ancients, etiquette was inseparable from all aspects of being a person, acting and governing the country. The ancient rites are compatible with the ancient identity and hierarchical order, and its basic spirit and value orientation is to determine the order of dignity and humility, and maintain the way of discipline and morality. Etiquette not only recognizes and maintains social differences and hierarchies, but is also rich in differences and varies from person to person.

Etiquette and morality, one for the external norms, the other for the internal righteousness, each other is the inside and the outside, complement each other. The rule of virtue contains three meanings: first, the ruler himself must be virtuous; The second is that the ruler should carry out moral education for his subjects: the third is that the ruler should be kind to the people, that is, to implement "benevolent government". If the ruler wants to consolidate his political power, he must put the people first, control the property of the people, and cherish the power of the people.

4. The tradition of great unification

In ancient China, the concept of great unification was often expressed like this: "Under the whole world, it is not the king's land." On the shore of the land, it is not the king's minister. Judging from its practical role, the concept of great unification often becomes the banner of respecting the king and the foundation of the political system and legal system of the supremacy of imperial power and the concentration of power. In ancient China, there was no real sense of decentralization. Although there are also mechanisms for mutual restraint and supervision between various positions, the purpose of such restraint and supervision is to facilitate the monarch's control over civil and military officials.

5. Standardize the tradition of unity

One of the main manifestations of this tradition is the "unity of ritual and law". This is not only manifested in the consistency of the basic content, value orientation, and spirit of ritual and law, but also in the fact that there is no obvious boundary between ritual and law in terms of external form. This pattern of chaotic and undivided norms is also very obvious in the formulation of laws by the state, that is, the so-called pattern of no distinction between civil and criminal punishment and the integration of various laws. Since there is no separation between public and private life, various social structures and social relations are highly integrated, and a situation of integration of various laws in legislation has emerged.

The social order that ancient people aspired to was a kind of social situation in which ethics was the dominant factor and various social norms were comprehensively governed by the formation of "peace" or "great harmony" in the world. This eventually leads to the emergence of a situation in which morality and righteousness are the first, and the rites that determine the name and duty are the first, and the law that determines right and wrong, rewards and punishments, and finally returns to the hierarchy and each gets his place.

(2) Criminalization of the Code

After analyzing the legal and cultural traditions of ancient China, it is not difficult to find the answer to the question raised at the beginning. Let's start with criminal law. In the concept of the ancient Chinese, punishment is law, and law is law. The criminal law in traditional Chinese thinking is different from the criminal law as we understand it today. Modern jurisprudence believes that criminal law is the sum of legal norms related to crime and punishment, and its function is mainly to educate (prevent crime), and then to punish (to punish crime); In traditional Chinese thinking, criminal law focuses on punishment (revenge) and education (vigilance). This is because the law is the punishment, and the punishment is the killing. The purpose of the killing was not for anything else, but for revenge. The nature of traditional Chinese law has been criminalized.

It is not difficult to understand that traditional Chinese law has become a unique criminal law, which is manifested in a well-developed public law culture. From the perspective of historical tradition, Chinese law was originally mainly formed in the form of inter-tribal warfare, mainly in the form of punishment, and was mainly used to deal with and punish barbaric aliens. This unique historical origin has had an established and profound influence on the mindset of later generations, and people have always been accustomed to regard the law as punishment, and they have always been accustomed to associate punishment with barbarism and the inferior people related to barbarism, the uneducated, the unruly, and the unscrupulous, all of whom can be collectively called bad character (sexual evil). However, due to the limitations of the times, identity, and knowledge, thinkers cannot have a scientific analysis and understanding of this, and can only derive a corresponding view of law and crime based on the phenomena and subjective impressions of things. This non-scientific theory has largely influenced the direction of the development of Chinese law for more than 2,000 years.

(3) The criminal law of civil law

Let's look at civil law. As we all know, civil law is a general term for the legal norms that regulate certain property relations between equal subjects of rights (citizens and citizens, citizens and legal persons, legal persons and legal persons) and personal relations related to property. It has several elements: (1) only citizens or legal persons can be the subject of rights; (2) both parties are equal in law; (3) The content of the adjustment is the property relationship and the personal relationship related to the property; (4) The methods and means of punishment are different from those of the Criminal Law, and generally adopt criminal methods such as stopping the infringement, returning property, compensating for losses, paying liquidated damages, making formal apologies, etc., and do not use criminal means such as imprisonment, exile, fighting, or killing. In this way, the laws of traditional China are reviewed in contrast, and there is no civil law in the strict sense of the word. All feudal dynasties in China had laws that specifically regulated property and the personal relations related to property, but what if they were not civil laws? In terms of content, they are all civil, but in nature, they are not civil laws.

As early as the Western Zhou Dynasty, China had laws and regulations on civil activities, and the contracts at that time were mainly loans and sales. Anyone who violates the contract and fails to pay the interest on time is subject to the penalty of punishment, which is the so-called: "Whoever has goods and goods shall be punished by the law of the land, and whoever violates the decree shall be punished." In addition, contractual disputes arising from sale or lease are ultimately dealt with by penal means. This characteristic of criminal punishment with civil content has become a tradition since the Western Zhou Dynasty, and there has been no fundamental change until the end of the Qing Dynasty. In traditional China, on the one hand, civil law has been criminalized, and on the other hand, their own status and number in the national legal system are extremely limited. In general, civil disputes are handled by the people themselves, and the main way to deal with them is mediation, which is based on customs and clan regulations. Not only did there be no civil law (code) in the feudal national law, but also the customs and clan laws and regulations of the people who specialize in dealing with civil disputes cannot be regarded as civil law. Therefore, there is no civil code (code) in the strict sense of the word in traditional China.

Criminal law is a legal system about crime and punishment, and crime is its core, so criminal law can also be described as criminal law. Civil law is different from criminal law, which is a legal provision regarding wrongdoing and torts. An important difference between them is that criminal law protects the interests of the State and social order, while civil law protects private interests (property and power of individuals or legal persons). So, to a certain extent, criminal law is a criminal law, a national law, and a public law; Civil law is a kind of wrongful act, tort law, and private law.

The key social reason for the criminality of traditional Chinese law should be the development of traditional Chinese state power and concepts. Traditional China is a society with highly developed state power and concepts, as early as the Bronze Age, this situation has developed considerably, after the Qin and Han dynasties, the form has increased, the absolutism has been increasingly strengthened, the family and the country are integrated, and the situation of integrating the family into the country can be described as rare in the world. Such a social situation will inevitably lead to the formation of all values with the interests of the state and the stability of the social order as the highest value, and it will inevitably lead to the infinite diffusion of such values, all the way to all spheres, including purely private affairs. In this way, private affairs are linked to the social order and the political control of the state, and the law of the State aimed at upholding the highest values can only be public law that abolishes private interests. The abolition of private public affairs means that the state uses force to interfere in private affairs (which is precisely the main scope of civil law adjustment), ensures national interests and political control, and regards all actions as related to the state, and all illegal and tortious acts are crimes, which lays the foundation for the possibility of criminalization and nationalization of all laws. For this possibility to be realized, the power of the state must be strengthened. Compared with the restraint of the government by the Western people, China's state power has always been strong and has a deep foundation. This highly systematic and centralized state power in the ancient world has made the criminalization and nationalization of law and state generally realized from concept to system. Of course, the factors affecting the criminalization and nationalization of China's law are certainly not only these, but due to the limitation of space, such as the group-oriented nature of law (the obligation standard is one of the intrinsic characteristics of criminal law) and the moral responsibility of law, we can only skip it temporarily.

The criminality of traditional Chinese law does not indicate that Chinese culture is backward, but only reveals the public law and national politics of this culture from one side. This characteristic is not only the embodiment of Chinese society, but also a necessary condition for this society to maintain order and development. Compared with the private law tradition in Western legal culture, this difference and polarity can only be said to be "different" and can hardly be said to be "bad".