Zhang Fei

Zhang Fei

Zhang Fei, whose date of birth and death is unknown. He once served as the chief of the Ming Dynasty. Zhang Fei annotated Jin Law as Tingwei (the supreme judicial organ from Qin and Han Dynasties to the Northern Qi Dynasty). First, he elaborated the function of the chapter "name of punishment" with the nature of general principles: "the name of punishment" is the equal difference between the addition and subtraction of the minor crime law, the multiple meanings of the various chapters, the deficiency of the chapters, and the program of the upper and lower levels. "

Profile

He was a jurist in the late Wei and early Jin Dynasties. Zhang Pei wrote the book of Jin · criminal law annals. The book of Jin was compiled in the early Tang Dynasty. Before that, Liang xiaozixian wrote Zhang Fei the biography of kongzhiyu in the book of Nanqi, and the books of Sui, jingjizhi, Yiwenzhi in the book of new Tang, Volume 45 of Beitang shuchao, and volumes 638 and 642 of Taiping Yulan.

legal view

Zhang Fei was appointed as FA Lei of Ming Dynasty when Sima Yan (265-290) was Emperor Wu of Jin Dynasty. He was famous for his annotation of Tai Shi law of Jin Dynasty. His works include Lu Jie (20 volumes), Za Lu Jie (21 volumes) and Lu Xu Zhu of Han and Jin Dynasties. All the original books have been lost, except the table on which he explained the main points to the emperor after he annotated the law of Taishi, which is called the table of annotated laws in history and recorded in the book of Jin · criminal law annals. The table of annotated laws summarizes the basic spirit and characteristics of taishilu, draws on the achievements of previous annotated laws, makes new interpretations of some important legal concepts and terms, and expounds the principles that should be followed in feudal judicial activities. It reflects Zhang Fei's main legal viewpoints

Rites and music are above, criminal law is below

The annotated table of laws first points out that a code should be "the king's political power should be distributed above, the princes should be served below, and the rites and music should be pacified in the middle". He believed that the law should embody the spirit of "rites and music", which should be formulated and promulgated by the monarch and abided by by the subjects unconditionally. "Rites and music" is the embodiment of feudal ethics and feudal hierarchy. Therefore, he thinks that rites and music is the soul of law, and law is the tool and guarantee to realize "rites and music". Therefore, "rites and music are highly valued, so the punishment is reduced.". At the same time, only by relying on legal measures can we maintain the feudal hierarchy and realize the unity of the legal system, so "the criminal law is idle (defensive), so the whole law (legal system)".

We should be careful of the change of law

Zhang Fei believes that a law, like the book of changes, "has a far-reaching purpose, its diction, its allusion, and its affairs are wanton and hidden" (the book of changes). The "reason" contained in it is profound and profound. Therefore, we should "be cautious of its changes and try its reason". There are two meanings of "Li" in zhulv Biao: one is feudal ethics, the other is the logic and law of things. And the two are unified. Standing in the position of feudal rulers, Zhang Fei believed that law not only embodied feudal ethics, but also conformed to the laws of things. Therefore, although his interpretation of Jin Law contains reasonable factors, there are also many idealistic feudal dross. In order to judge the law, Zhang Fei especially explained the important legal concepts and terms in the law of Taishi. He believes that a correct understanding of these concepts and terms that embody the basic spirit of "reason", that is, the so-called "comparison of law and justice", is of great significance to the determination of crimes and the application of penalties. He said: "it's the reason that they know and commit. It's the fault that they think they are. It's the fraud that they violate loyalty and deceive the superior. It's the fraud that they break faith and hide cleverness. It's the disrespect that they lose propriety and abolish chastity. It's the fight that two lawsuits are mutually interesting. It's the play that two harmonies are mutually harmful. It's the thief that doesn't change. It's the fault that they don't intend to commit wrongly. It's the wrong that they violate chastity and reason. It's the evil that they violate nobleness on the mausoleum. The first thing to sing is to say that it is the intention, the second is to say that it is the plan, the second is to say that it is the rate, the third is to say that it is the strategy, the third is to say that it is the strategy, the third is to say that it is the group, the third is to say that it is the theft, and the third is to say that it is the booty. Abusing, deceiving, disrespectful, immoral, rebellious, stealing and embezzlement are the charges. Therefore, loss, negligence, drama, thief, fight, force, strategy, murder, intention, plot, rate and group are legal terms and terms for determining the subjective motive of the perpetrator, judging the circumstances of the crime and determining the nature of the crime. Zhang Fei's explanation is not only conducive to the unification of the feudal legal system, but also highlights the class nature of Taishi law, and strengthens its role in defending the feudal hierarchy and suppressing the people. At the same time, it also shows that Zhang Fei attaches great importance to the strategy of law and emphasizes that the conviction and sentencing should be accurate to reflect the spirit of differential treatment. For example, abuse and deceit. To abuse is to cheat; to cheat is to cheat. These two kinds of crimes are criminal activities by deception. Although their behaviors are similar, their nature is very different. Zhang Fei integrated the theories of Han Dynasty Legalists, and further pointed out clearly that "cheating on the superior is called abusive, and cheating on the superior is called deceitful", so as to clarify the difference between the two crimes. Abuse refers to the cheating of the subjects to the monarch, and the punishment is generally heavier; fraud refers to the treachery and fraud between the subjects, and the punishment is generally lighter than abuse. In this way, it is convenient to determine the nature of the crime and apply the penalty accurately when trying the fraud case. The change of caution law is to pay attention to the truth contained in "impermanence". Zhang Fei thinks that although some laws are illogical on the surface, they are actually reasonable. Therefore, we should be cautious of its change. For example, he said: "if you do not accept the imperial edict, you should redeem the penalty of loss without reason. Those who conspire against him should be punished if they do not know. Therefore, the loss of the change also. In the Han Dynasty, there was a crime of "not accepting the imperial edict". In the early Han Dynasty, the "minor wrongs" committed by officials in the performance of their duties were often regarded as "failing to accept the imperial edict" and punished with severe punishment. The law of Wei Dynasty has been revised. According to the experience of the previous dynasties, Jin Law stipulated that "not to accept the imperial edict" should be punished as negligence. Zhang Fei thinks that the "penalty of loss without reason" is reasonable. The reason is that the officials commit the crime of "not accepting the imperial edict" in the performance of their duties, which is "good intentions, bad deeds". Therefore, it can only be judged as negligence and sentenced to ransom. Because "those who redeem and punish are wrongly admonished.". For "ignorance", it should be considered as negligence, but Zhang Fei thinks that this does not apply to those who "conspire against the same army". The crime of treason, regardless of intention or negligence, is regarded as a crime of intention and punished with heavy punishment. He thinks this is also reasonable. It can also be seen from this that Zhang Fei's basic intention of asking for the principle of trial of the law and the change of the law is to make people understand that the feudal law is a tool to safeguard the interests of the feudal rule, and any interpretation of the law should conform to this "principle".

Crime should be judged by reason, and law enforcement should be flexible

In the preface of legal annotation, Zhang Fei also discussed the principles that should be followed in feudal trial activities: 1. He emphasized the guiding significance of "reason" for the trial activities, and thought that the application of penalty should reflect the feudal ethical spirit contained in the law. First of all, it requires the investigators to judge the situation with reason. That is to say, the judgment of the case and the determination of the criminal's ideological motivation should be based on "reason". So he said, "reason is the opportunity to intercede.". He also advocated that "those who discuss crimes should be based on their heart, try their feelings, and refine their affairs.". He followed the Han Confucianism's view of "discussing crime with original intention" (see Dong Zhongshu), and advocated that the purpose and motive of the offender should be clarified when the sentence is broken. Therefore, it is necessary to understand the case in detail, collect information from all aspects, and make a comprehensive analysis. ② Flexible reasoning. Zhang Fei stressed that the application of penalty should be cautious and accurate, and the innocent should not be harmed arbitrarily. He said: "if the man who worships the Scriptures holds the rope with the sword, if the sword is added rashly, the object will be injured, if the rope is thrown rashly, the object will be straight." To achieve this, one must understand the spirit of "reason" embodied in the law, not just from the literal understanding of the law. Second, we should grasp the opportunity and decide according to the specific conditions, that is, we should apply the punishment to be light or heavy, and "observe the quarrel temporarily". In a word, law enforcers should be good at flexible reasoning, and must not "act on one side" or "abide by it as a whole".

Other views

However, Zhang Fei's book was quoted from the book of Jin“

Progression table

”It explains the legislative principles and the application of legal texts, and explains 20 legal terms, including reason, loss, abuse, deceit, disrespect, fight, drama, thief, negligence, immorality, evil, harm, intention, plot, rate, strength, strategy, group, theft and embezzlement, many of which are very accurate and incisive. Such as "knowing and committing is the reason", "meaning is the loss", "violating loyalty and deceiving the superior is the abuse", "breaking faith and concealing cleverness is the fraud", "two people's confrontation is the scheme", "taking something other than it is the theft" and so on. Obviously, the annotator notes that in specific cases, the state of the actor's subjective motivation is different. To make an accurate definition of it is of great practical significance to distinguish between crime and non crime as well as this crime and that crime, and also has an important impact on the development of ancient Chinese annotation law. Later, Chang sun Wuji and other people's comments on the Tang law were inspired.

Historical influence

In the Wei and Jin Dynasties when Zhang Fei lived, there were many substantial changes in China's feudal legal system. At the same time, the development of feudal legal thought entered a new historical period. In the Western Han Dynasty, due to the establishment of Dong Zhongshu's new Confucianism and Emperor Wu's policy of "respecting Confucianism alone", the development of law was hindered by the tedious Confucian classics and became the vassal of Confucian classics. With the formation of the split situation at the end of the Eastern Han Dynasty, in the cruel reality of class struggle, people gradually abandoned the Chenwei scriptures, which talked about morality and propriety, and began to re understand and re study the practical problems. In the field of thought, it has broken the exclusive position of Confucianism since the Western Han Dynasty, and the thoughts of Confucianism, Taoism, Ming and FA have been inherited and developed. People are no longer paranoid superstitious in the Confucian ethical code, but pay more attention to the study of "the origin of criminal name". During this period, a group of jurists specialized in legal annotation and legal interpretation appeared. They made extensive and in-depth discussion on the nature and spirit of law, the internal relationship between various parts of law, and the definition of legal terms. As a result, the internal functions of terms which had been confused for a long time in the past were determined, and the boundaries between them became clearer

Chinese PinYin : Zhang Fei