【Abstract】The "Spring and Autumn Prison Break" is a special trial method that began in the Han Dynasty and ended in the Sui and Tang dynasties. Its basic principle is "original condemnation." The "Spring and Autumn Prison Break" advocated the use of Confucian classics as the basis for adjudicating cases, marking the Confucianization of the feudal legal system.

【Keywords】"Spring and Autumn Prison Break", original heart conviction, kissing the prime minister, the origin and influence of "Spring and Autumn Prison Break".

As the core of feudal rule, Confucianism has a profound impact on China's entire feudal legal system and even the Chinese legal system. Among them, the "Spring and Autumn Prison Break", which was based on the Confucian classic "Spring and Autumn Period", had the most far-reaching impact on China's legal system, and later generations also had the most in-depth research on the "Spring and Autumn Prison Break". This article expresses some simple views on the origin and influence of the "Spring and Autumn Prison Break", in order to seek advice from the Fang family.

The Qin Dynasty, with Legalism as its ruling ideology, practiced a strict torture system. During the reign of Qin II, the harsh punishment became particularly cruel, so much so that "the soldiers shouted, and the Hangu was lifted".

The rulers of the early Han Dynasty learned the historical lesson of the death of Qin Dynasty II. In 206 BC, after Liu Bang conquered Xianyang, he announced the abolition of the onerous laws of the Qin Dynasty and the maintenance of order in three chapters of the law. In the 70 years of the early Han Dynasty, the country accumulated a large amount of wealth, the people lived a prosperous life, and the productive forces were greatly developed. At this time, Huang Lao's thought, the ruling ideology as the superstructure, was increasingly unable to adapt to the development of society, and the rulers urgently needed a political and ideological line that was compatible with the progress and development of the feudal system and the long-term interests of the feudal landlord class.

In 140 BC, after Emperor Wu of the Han Dynasty Liu Che ascended the throne, he aimed to change Huang Lao's thought and explore a new way of governing the country. In the process of selecting and questioning talents for governing the country, the Confucian master Dong Zhongshu responded to the question with "the righteousness of the Spring and Autumn Period"1, which was deeply appreciated by Emperor Wu of the Han Dynasty. Since then, Confucianism has gradually become the official orthodoxy. As Confucianism became orthodox, Dong Zhongshu and others advocated the use of Confucian classics such as the Spring and Autumn Period as the guiding ideology for judicial adjudication. "Jiaodong Prime Minister Dong Zhongshu is sick and sick, and every time there is a political discussion in the imperial court, Zhang Tang is sent several times, and he goes to the alley in person to ask about his gains and losses." 2 At the beginning of the Han Dynasty, most of the laws inherited the cruel laws of the Qin Dynasty, and many of the provisions did not conform to the social conditions of the time, and to a certain extent, hindered the development of society. The "Spring and Autumn Prison Break", which used Confucian classics as the basis for adjudicating cases, undoubtedly made up for this shortcoming.

After the middle of the Han Dynasty, the rulers sought to combine Confucianism with the legal system and promote the Confucianization of law. 3

"Conviction with the original heart" and "hiding the prime minister with a kiss" are two important principles of the "Spring and Autumn Prison Break."

(1) "Conviction of the original heart"

Dong Zhongshu once said: "The Spring and Autumn Prison is also to listen to the prison, and the original will will be the same, the evil will not be successful, the first evil person is guilty of a particularly heavy crime, and the upright person will be the youngest." "4 That is, based on the facts of the case, the motive of the perpetrator is investigated; If the offender's subjective motive conforms to the Confucian spirit of "loyalty" and "filial piety", the punishment may be commuted even if his conduct constitutes a danger to society. On the contrary, if the subjective motive of the offender seriously violates the spirit advocated by Confucianism, even if it does not constitute a danger to society, it must be determined that the crime is committed and severely punished. There are two such precedents in the "Taiping Preview", which embody the basic principle of "original conviction". Case 1: The son accidentally injured the father. "A's father B and C quarrel and fight, and C stabs B with his sword, and A hits C and accidentally injures B. Or say: Beat your father and be the head of the gang. Commentary: The minister foolishly thinks that the father and son are close relatives, and when they hear their fight, they are all scared, and they help them to save them, so they want to criticize their father. The righteousness of "Spring and Autumn" is to stop his father's illness, take medicine to his father and die, the gentleman's original heart, forgiveness but not punishment. A Feilu so-called beating his father, should not sit. "Case 2: Remarriage after the death of the husband." A husband and B will be on the ship, the sea will be windy, the ship is not drowned, and it will not be buried. In April, Mother C married A. What do you want? Or say: The first husband is dead and not buried, and the law is not allowed to marry. If you are a private wife, you should abandon the market. The discussion said: The minister foolishly thinks that the righteousness of "Spring and Autumn", Mrs. Yan is returned to Qi, and the husband is dead and there is no man, and there is a way to remarry. The woman has no tyranny and arbitrariness, but obedience is obedience, and the one who marries is returned. A and the Venerable One is married, and he has no lustful heart, and he is not a private wife. Knowing the decision, they are not guilty, and they should not sit. ”5

However, because "the Confucian classics are profound in meaning, general in content, and even inconsistent"6, the judgment of the "Spring and Autumn Period" is actually based on the subjective assumptions of judicial officials, which increases the corruption of the judiciary, and judicial officials and even rulers can distort the Confucian scriptures according to the needs of their own rule, but cannot really do what they are "original", resulting in the frequent occurrence of unjust, false and wrongly decided cases. Liu Shipei, a master of Chinese studies, once said, "The name is to be sentenced to prison, but in fact, it is convenient for cool officials to dance and write"7.

2) Kiss the prime minister

"Emperor Xuan of the Han Dynasty has been celebrating the fourth year, and Emperor Xuan has issued an edict saying: The relationship between father and son, the way of husband and wife, and the nature of the couple. Though there was evil, Yumeng died and lived. Sincere love is knotted in the heart, and benevolence is the best, how can it be violated? From now on, the son hides his parents, his wife hides his husband, and his grandson hides his eldest parents, all of whom are not guilty. His parents hid their sons, their wives hid their husbands, and their eldest parents hid their grandchildren, and they all went to the court to hear about it. 8 This formalizes the concept of concealment as a penal principle. Concealment of relatives means that close relatives can conceal their criminal acts without being punished by law or having their punishment commuted. However, relatives still have the obligation to expose rebellion that touches on the stability of feudal rule, crimes of concealment and other serious crimes that directly infringe on imperial power, or seriously undermine the order of feudal rule. In the Analects of Confucius, Confucius said: "The father is hidden for the son, and the son is hidden for the father. Dong Zhongshu concluded a classic case based on this remark: the father is hidden for the son. A has no children, and B is next to the road, and he is raised as his own son. and grew up, guilty of murder, with adverbs A, and A hid B. What is A? Break and say: A has no children, vibrate and raise B. Although it is not born, who is easy to change. "Poetry" cloud: The moth has a child, and the moth wins and loses. Spring and Autumn. The righteousness of the father, the son is hidden, the son is the father, and A should hide B. Do not sit. ”9

Compared with the strict rules of Legalism, the principle of not paying attention to human feelings and the principle of responsibility for results, "relatives and relatives conceal each other embodies the care for human nature". In the view of Confucianism, family affection is the primary meaning of human nature, and love between relatives is the most simple emotion in the world. This idea of Confucianism was undoubtedly a powerful tool for the rulers of the newly established Han feudal ruling dynasty to appease the people who had been tortured during the Qin Dynasty. "Only laws based on human nature can obtain intrinsic rationality and make the public believe in the law." 10

Judging from the above two principles, the "Spring and Autumn Prison Sentence" is conducive to the reduction of punishment and the alleviation of social class contradictions. According to historical records, those who were sentenced to "Spring and Autumn Prison Breaks" in the Han Dynasty were all subject to forgiveness. 11 Judging from all the "Spring and Autumn Prison Sentences", except for the infringement of imperial power, the rest of the cases were all lightly punished. This has eased the class contradictions to a great extent, as He Yi said: "To be lenient and peaceful, to raise grievances, and to judge with the righteousness of the Spring and Autumn Period, is to have no complaints in the county." 12

The "Spring and Autumn Prison Break" promoted the improvement of the theory of the composition of crime in ancient China. The basic spirit of the "Spring and Autumn Prison Sentence" is "original conviction" emphasizes that conviction and sentencing should be based on subjective factors such as the motive, purpose, and mentality of the crime. Although the "original conviction of the heart" is based on the subjective psychology of the offender as the objective basis for judging the case, it pays attention to the subjective aspect of the composition of the crime, which is much better than simply or even blindly convicting according to the law, and this has an important impact on and a positive role in promoting the progress of punishment in the feudal legal system of the whole of China.

The "Spring and Autumn Prison Break" made up for the lack of written law. At the beginning of the Han Dynasty, because most of the laws inherited the cool laws of the Qin Dynasty, many provisions of the Han laws did not meet the general desire of the rulers and the people to demand light punishments. The "Spring and Autumn Prison Break" was precisely "the use of the Confucian idea of "benevolence" to eliminate the cruelty of Han law". 13 "Conviction with the original heart" and "kissing the prime minister and hiding the prime minister" are two important principles of "Spring and Autumn Prison Sentence", which have a far-reaching impact on the entire feudal legal system, and are even reflected in modern judicial practice. The study of the "Spring and Autumn Prison Break" is helpful to a deeper understanding of the formation and development of China's feudal legal system.

The "Spring and Autumn Prison Break" plays an important role in the "introduction of rites into the law".

In the process of its development, the law needs to be constantly reformed and improved in order to achieve its maximum social effect, and in this regard, the legal reform in ancient China is very prominent. The process extended to the Tang Dynasty and its influence extended to the Ming and Qing dynasties, and it constructed the basic system of the traditional Chinese legal system and cast the life spirit of the Chinese legal system. And the real beginning of this process was the "Spring and Autumn Prison Break" that arose in the early Han Dynasty. The "Spring and Autumn Prison Break" officially opened the process of integrating rituals and laws in history, and its major value is as follows: first, the spirit of rituals is infiltrated into judicial practice, and rituals are used to lead punishment and guide the operation of the law with rituals, so that rituals have become the life and soul of the law; The second is to gradually transform the content of the rites into the provisions of the law, which are stipulated in the code and law. Not only that, but the "Spring and Autumn Prison Break" also shapes the basic character of the entire traditional law - the "ethical law" characteristic. It can be seen from this that the "Spring and Autumn Prison Break" played an extremely important role in the influence of Confucianism on the entire traditional legal system.

The successful practice of "case law".

Ancient China pursued written law, but written law also has its shortcomings, and it is inevitable that there will be legal "blind spots" in judicial trials. In order to solve the problem of "blind spots", the appropriate creation and application of "case law" is an ideal measure. In terms of the creation and application of case law in ancient China, the "Spring and Autumn Prison Break" in the Han Dynasty is worthy of being a successful model. There are generally several forms of "case law": "precedent by righteousness", "precedent by precedent", "precedent by law", and "precedent by custom". The "Spring and Autumn Prison Break" is a typical form of "giving birth to righteousness". In the absence of explicit provisions in the law, Dong Zhongshu produced precedents based on Confucian legal consciousness and principles, that is, he created precedents based on the "subtle words and great righteousness" of the Spring and Autumn Period, such as "the original heart is guilty", "the father and son hide each other", "the prince has no general", "the merit is overcome", "the king has no outside", "the evil stops his body", "the son does not return to the courtesy and is not the son", and so on. At that time, this kind of precedent created by righteousness was relatively in line with the legal thinking and legal policy of the ruling class, so it was more widely applied to the field of judicial adjudication. Its progressive role is mainly manifested in two aspects: First, it makes up for the deficiencies of legal norms during the legal reform, and plays a positive and important role in adjudicating cases as a relatively applicable auxiliary legal norm, especially in adjudicating difficult cases; Second, to a certain extent, it has curbed the behavior of cruel officials who indiscriminately torture and kill, and arbitrarily "enter and leave people." During the Han Dynasty and the Han Dynasty, cool officials took advantage of the imperfection of the legal system and the incomplete content of the law, and the phenomenon of correcting the law and cruelly using punishment was quite common. As revealed in the "Treatise on Salt and Iron": "Today, the son is punished by the father, the younger brother is punished by the brother, the relatives sit together, and the Shiwu is connected. In this way, the guilty will be punished with the innocent, and the innocent will be few and far between. Since Confucianism was affirmed as the guiding ideology of the law, its ideas of advocating judicial leniency and advocating morality and punishment have profoundly influenced the implementation of the law, so that the precedents created by the "Spring and Autumn Period" have played a certain role in restraining and restraining the evil legal behavior of cool officials.

The perfection of the idea of adjudication

In adjudicating cases, it is necessary not only to ascertain the facts of the crime, but also to explore the true motives of the perpetrators, and only by implementing the principle of combining "objective imputation" with "subjective imputation" can the punishment be correctly determined. Any single "objective imputation" or "subjective imputation" while ignoring the other side of the trial thinking and method is biased and harmful. In the Qin Dynasty, which was known for its harsh punishments, the judicial principle of "objective imputation" was pursued, and if the Qin law stipulated that the crime of "slave concubine stealing the master" was heavier than the crime of ordinary theft, would the parents of the owner of the theft be punished according to the "theory of theft" or the crime of ordinary theft? According to the Qin law: "A person who cohabits is a thief, and a person who does not live together is not a thief." This is a typical example of objective imputation based solely on the existence of facts and applicable law. How can there be more than one or two examples like this in Qin Jian? Therefore, as some scholars have pointed out, "in Qin's trial activities, for all criminal cases, including political crimes, the principle is to apply the law according to the facts" and "in the trial activities, the principle of applying the law according to the facts cannot be violated." The social consequences of this kind of trial thinking and method of the Qin Dynasty were quite heavy, and the thinkers of the early Han Dynasty paid attention to the idea and method of "subjective imputation" when they reflected. For example, the application of principles such as "the original heart on crime" not only negated the spirit of the previous dynasty's emphasis on "objective imputation", but also gave a new look to the Han Dynasty's judgment thinking, so that "subjective imputation" and "objective imputation" could be organically combined. As Dong Zhongshu said, when adjudicating a judicial case, "it must be based on what it is and what it will be." It can be seen that in the implementation of the "Spring and Autumn Prison Sentence," both the "matter" (the facts of the crime) and the "will" (the motive for the crime) were examined in the trial, thus forming a correct trial thinking and policy. As for Huan Kuan and others' one-sided exaggeration of the role of the actor's psychological state, saying that "those who have good intentions but violate the law will be exempted, and those who have evil intentions and conform to the law will be punished," and jumped from "objective imputation" to "subjective imputation." This cannot be attributed to Dong Zhongshu's "Spring and Autumn Prison Break," but it is just that some other thinkers have gone to the other extreme because of the deviation in their ideological understanding of the "Spring and Autumn Prison Break."

The negative impact of the "Spring and Autumn Prison Break".

The above discussion outlines the positive side of the "Spring and Autumn Prison Break", of course, we must not ignore its negative side. First, for the first time in history, examples were used to replace laws and bad laws were used to undermine the seriousness of written law. When we believe that the statutory law is not perfect, the appropriate creation and application of precedents can be regarded as a legislative and judicial method worthy of affirmation, which has its own positive role and affirmative value. However, just as it is a fallacy to take one step further in the truth, if the "Spring and Autumn Prison Break" goes too far, it will lead to its opposite, and this is exactly the case with historical facts. For example, Dong Zhongshu's method of judging a case, which takes into account both subjectivity and objectivity, was a very valuable ideological proposition, and it was an advanced legal thought and strategy at that time. However, in trial practice, when the judge pushes it to the point where the magnitude of the crime and the severity of the punishment are determined solely on the basis of "evil will" and "good will," a good principle becomes an evil proposition, which is bound to lead the judicial trial astray and finally slide into the abyss of "subjective imputation." If the magistrate only looks at the motive and does not pay attention to the facts when adjudicating a case, it is in fact the magistrate who is ignoring the law (especially when deciding on doubt), thus undermining the authority of the written code and the law. Therefore, the "Spring and Autumn Prison Break" is the first in history to break the law, and its historical negative impact cannot be underestimated. Second, it opened the door for cool officials to dance and write ink, and arbitrarily "enter and exit people's crimes". The trend of "Spring and Autumn Prison Breaks" is prevalent, and perhaps even Dong Zhongshu did not anticipate that the "Spring and Autumn Prison Breaks," which originally intended to restrain the indiscriminate punishment of cool officials, often evolve into weapons for cool officials to act arbitrarily and wantonly kill innocent people. Because of the "Spring and Autumn Period", which collects the encyclopedia of etiquette and righteousness, "tens of thousands of texts, thousands of indexes, and the scattered gathering of all things", coupled with the respective annotations of later generations, makes a "Spring and Autumn" even more "righteousness" difficult to see. When a prison sentence is based on the "Spring and Autumn Period", the judicial officers will always find a basis for the scriptures and righteousness that meets their own needs, and when it is difficult to find an accurate legal basis, the judicial officers will inevitably take the words out of context and arbitrarily when they are judged, which makes it easier for them (especially the cool officials) to "enter and leave people's crimes" and harm innocents