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Original title: “The Contest of the Law of Gift” in the late Qing Dynasty in Okada Asahiro’s Domain
Author: Yang Benjuan
Source: “The Law of the Origin” No. 37, edited by Chen Ming and Zhu Han, published by Hunan Major Study Club in November 2019.
Content summary: In the late Qing Dynasty, the japan (Japan) criminal law expert Okada Asahiro, under the influence of the “legal evolution theory” thought by Hokage Chen Chong, viewed China’s traditional legal civilization as a shackle, and advocated comprehensive introduction of foreign legal civilization in the reform of criminal law. In the famous “Controversy of the Law of Gift”, Okada Asahiro advocated that “Zi Shun violated the sect” and “no husband” should not be subject to criminal laws, and respect for the act of killing Zi Shun should be punished with ordinary people.
Because Okada Asahiro lacks in-depth understanding of China’s traditional legal civilization, the draft of the refreshing criminal law he led showed the characteristics of blindly following the advanced legal civilization of the East and neglecting the inherent traditional legal civilization of the country, which is limited in its practicality. The reason why Okada’s legislative concept occupied the dominant position in the legislative activities at that time was closely related to the political need of the Qing Dynasty to quickly complete the legal system changes in a radical way and to “release the right to rule and judge”. The rule of law construction in contemporary China must respect our country’s rule of law history and real national conditions, and at the same time, we will actively accept advanced rule of law civilization from outside the region, so that we can achieve useful results.
Keywords: Asataro Okada; Contest of Gift Law; “Refreshing Criminal Law”; Integration of Gift Law; Discussion on the Evolution of Law; Author: Yang Benjuan, PhD student at Nanjing Teacher Fan Da Law School, Associate Professor at Nanjing Xiaozhao Academy of Foreign Languages. This article is a stage-by-stage conclusion of the Philosophy and Social Science Research Fund of the Jiangsu Provincial Education and Teaching Hall University “Study on Four Japanese (Japan) Legal Experts in the Change of the Legal System in the Late Qing Dynasty” (2014SJD182). In the process of changing laws and revising laws in the late Qing Dynasty at the beginning of the 20th century, the “Travel Sect” represented by Jiang Suti Envoy Haruixuan and the “Legal Sect” represented by Shen Jiaben, the “Legal Sect” represented by Shen Jiaben, the minister of the revision of laws and regulations, created a fierce debate. This is what is called the “Travel Sect” in the modern history of China’s legal system.
Shen Jiaben and others, based on their clarity on the social crisis faced by the Qing Dynasty and the political laws and regulations of Eastern countries, advocated the introduction of modern legal theories and regulations of Eastern countries, and used the “common legal principles” of Eastern countries such as “nationalism” to completely transform China’s “integration of laws and regulations”.
There is represented by Liu Naixuan, including the upper-level rights and nobles of the Qing court under the supervision of the local government. It believes that the revision of the new law should adhere to the principle that traditional ethics and laws cannot be separated, and preserve ChinaInclusive The “Travelism” has been passed down for thousands of years.
The focus of the dispute between the legal school and the sect includes the infringement of the name and the existence of the sect. Rescue, no husband, misunderstanding, son-in-law, son-in-law violates the sect, whether son-in-law can exercise his rightful defense against his superiors and kill son-in-law. [1]
Looking back to modern history, it is not difficult for us to find that Japan (Japan) legal expert Asahiro Okada was a legal faction in the “Controversy of the Law” A major member played a heavy role in the two-way argument and legislative practices at that time.
However, from the perspective of academic history, on the one hand, the current academic community’s discussion on the “Controversy of the Law of the Confession” in the late Qing Dynasty was solid and profound, but the comments focused more on the aforementioned Qing Dynasty’s insiders. As for Okada’s main viewpoint stand, few scholars have discussed it.
In fact, the review of the “Controversy of the Law of the Confession” in the late Qing Dynasty from the perspective of Asataro Okada was a major discussion topic with internal and external perspectives and insights, for a deep understanding of the changes in the legal system at that time. href=”https://sites.google.com/view/sugardaddy-story-share”>Baobao.comRecovering the complexity is helpful.
Therefore, this article takes the main influences that Okada had in the reform of criminal law in the late Qing Dynasty as the perspective, reminding that the quality of the Contest is not simple. The struggle of legislative techniques is a struggle of ideology and form, which is a struggle to make a choice against our inherent civilization.
On the other hand, although there are many discussions on Asataro Okada in the academic world, the important thing is to introduce the overall criminal law thinking around Okada, [2] and the detailed views of his views on the struggle of the ritual. In fact, in many discussions on the “contest of the ritual” At most, Okada clearly wrote an article to express his views and standpoints about the problems of Sun’s violation of the sect, the murder of Sun and the unmarried traitor.
In-depth analysis of Okada’s arguments on these three issues can further deepen the interpretation and understanding of the “Contact of the Contendment of the Contendment”. Therefore, this article takes the “Contendment of the Contendment of the Contendment” in the late Qing Dynasty in Okada’s Asataro’s territory as the choice, and try to introduce the above two aspects The existing research and teaching at the House of Generosity.
1. The life of Okada Asahiro and his experience in China
Okada Asahiro, born in 1868. He entered the Tokyo Foreign Studies School to learn French in 1882, and entered the Imperial Law Major in Law in 1888. He graduated in July 1891, Baoqiang.net and continued to study criminals in this school.Learn professional graduate degree. [3] In September 1893, the graduate student graduated and stayed at school to teach, and served as a lecturer in the criminal law.
In March 1897, he received the Ministry of Culture and Culture for public use, and went to France and Germany to study, and then transferred to the Italian and Italian wealth. He studied in July 1900 and was awarded the title of award in the same month. [4] In November 1900, he was appointed as a member of the Code Investigation Committee and participated in the Japanese (Japan) criminal law reform mission. [6] In June 1901, I received a doctorate in law in the Imperial Law.
In 1902, the article “Suppression” was published, which detailed and sufficiently determined the new system of punishment, which was just asked, was called “a leading-edge interpretation”, and therefore was recognized as “the first person to introduce the thinking of punishment to japan (Japan).” [7]
In the same year, the article “National Compensation Law for Criminals” was published, which detailed the origin, development and status of the Oriental countries on the source, development and status of the system of compensation for the wrongful compensation, and insisted on establishing this system in the Japanese (Japan) Criminal Law.
Okada Kazuoji Minister Yang Le formally signed a contract for employment on September 14, 1906 (July 26, 32, Mitsukoshi). [8]After coming, Okada discovered that the drafting task of the new criminal law draft had begun, and the total was completed, and the division was completed by 80 to 90%.
Okada believes that this draft is importantly compiled by reference to the old Japanese (Japan) Criminal Law in 1880. There are actually too many departments that require amendment. It is better to take a step back than to make corrections. After this opinion was recognized by Shen Jiaben and Wu Tingfang, Okada immediately began to draft a large and refreshing criminal law. [9]
But its drafting process was not a breach. Before the general law of criminal law was completed, in order to meet the needs of the “Bingwu Reform” that the court is adhering to, Okada, ordered the court to urgently draft the draft law, and only after it was completed will it continue to draft the refreshing draft law.
In the summer of 1907, the Revision Law Center of Okada was listed in the standard of adjustment and rectification, and was facing the closed fate. However, the draft of the Refreshing Law of Punishment has not been written yet, so Okada doubled its efforts regardless of the time and night, even if there is a problem with health conditions, there is no time to pay attention.
Finally, Okada
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