【李德嘉】 仇可復乎？唐代“徐元慶一包養復仇”案所蘊含的法理爭議

Time: Confucius was in the 13th month of Wuxu in the 2569th year of the 13th month of Wuxu

            Jesus April 28, 2018

【Abstract】 “The hatred of parents is striking” is a moral concept recognized by Confucianism. Therefore, all the people from ancient times to the present have sympathized with the revenge. In the modern dynasty, revenge means a conflict between Confucianism and the laws of the state. In the conflict between the ceremonies and the law, modern judicial practices have gradually developed the practice of the emperor slandering the emperor to retaliate against the revenge and implementing the best wishes against the revenge. The sanction of traditional judiciary against revenge not only adheres to the unity of the national legal system, but also reflects the respect and protection of filial piety by the royal power. The “original judicial situation” in this regard also has a major meaning for the current judicial practice.

【Keywords】 Revenge; Controversy in the Law; Original Judicial Situation

Introduction

On the New Year’s Eve in 2018, a man from Nanzhen District, Hanzhong City, Xi’an Province, Zhang Qunkang, knives and killed Wang Ge, his second son Wang Xiaojun and Wang Zhengjun, and the murderer was said to be to claim revenge for his mother. After the case of Zhang Qukou’s mother’s revenge, some people believed that Zhang Qukou’s behavior was as ruthless as a modern sect, so it deserves sympathy and blessing. However, in a modern rule of law society, revenge is a destruction of the order of the legal system. Therefore, some scholars point out that the act of defense and private economic relief into the rule of law is not only to maintain the national legal authority, but also to ensure and develop unrestrained. Any revenge target is undesirable. [2] The so-called revenge in the modern rule of law society highlights the strength between laws and principles. How to find a balance between laws and circumstances requires the ancients to find cleverness in the traditional judicial practice.

“The hatred of parents is a tremendous thing” is the foundation of Confucianism’s establishment against the problem of revenge, and the Confucian ethics is impregnated.For more than a thousand years, the common relationship formed by the ruler, minister, father and son has become a value standard that hides behind the laws. After entering a large society, the conflict between the ethics of revenge and the laws of the state gradually emerged. The national law that is precisely retaliated for revenge is neglected, revenge is punished, and revenge is harmed and the Confucian ethics are unconventional. Therefore, seeking a balance between gifts and law within the framework of statutory law has become a problem that traditional judicial faces need to solve when retaliating against hatred. The judgment standards and methods gradually formed by traditional justice when judging revenge cases also have inspiring value for the relationship between the current laws and principles.

1. The controversy in the “Xu Yuanqing’s revenge” case

A case of revenge for his father during the Tang Dynasty. The controversy in the emotional and legal cases exposed in this case caused disputes among the former scholars. The case is recorded in the “New Tang Books: Criminal Law” and is accompanied by Chen Zi’ang’s opinions on the case review. For the sake of discussion, the original text is as follows:

When Empress Wu, Xu Yuanqing, the father of the lower dynasty, was killed by Wei Zhao, the county wise minister, and Yuan Qing changed his name to the Yujiabao. After a long time, the teacher asked the censor to put the pavilion under the censor’s pavilion, and the students and professors had a fierce discussion. Among them, the most famous man named Yuan Qing killed him by hand and imprisoned himself as an official. Later, he wanted to pardon his death, and the left-handed captain Chen Zi’ang agreed to say: The former king established a ceremony to advance to others, and the Ming Dynasty ruled to rule. If you are a pillow and a vengeful enemy, it is a son of man; if you are punished with crimes and bans, it is a king’s political responsibilities. However, no one can achieve enlightenment without any rules, no one can achieve enlightenment. The sage practices the internal governance of the law and prevents the external punishment, so that those who abide by the law do not punish the law, and those who stay in the ceremony do not punish the law, and then they will be violent and honest and upright, so that the whole country can do it directly. Yuan Qingju claimed his father’s revenge and constrained his body and committed crimes. Why did the ancient wise men add it? However, the death of the murderer is the system of painting one, and the law cannot be two, so the Yuan Dynasty should be punished. “Zhi” says: “The father’s hatred is divided into heaven.” It is the teaching of ruling people. If you do not teach, you should forgive me. When officials say that punishment is to live, it is to stop trouble; benevolence is to benefit, it is to respect virtue. Now, I am not arbitrary to accept my father’s grudges; I am a kind person to do my son’s way. Benevolence but not profit, and being in harmony with each other is said to be able to punish but not trained. However, evil arises from the right, and treatment will be indiscriminate, so the precepts are not impulsive, and the previous kings are punishing. Now the festival of Yi Yuanqing is a punishment. The reason why the Yuan Qing can convey the whole country is to forget its birth and respect its virtue. If you sin to benefit your life, it is to be virtuous and to be loyal to your own virtues and to be loyal to your own life. I believe that the rules of the country should be corrected and punished, and then the tomb should be marked. [3]

The case is not complicated. Xu Yuanqing’s father, Xu Shuang, was killed by Wei Zhao, the county wise minister, for the incident. Xu Yuanqing changed his name to revenge his father, and he approached and killed him. After Xu Yuanqing killed the dead Master Zhao, he sued the official and asked for his crime. Wu Yutian thought of his filial piety and originally wanted to forgive Xu Yuanqing’s death, but the left-handed captain Chen Zi’ang believed: “The death of a murderer is a system of one. If the law is not two, Yuanqing should condemn the guilt.” [4] However, revenge for his father is also an act advocated by Confucian filial piety. yesTherefore, Chen Zi’ang proposed a policy of harmony, “It is advisable to rectify the rules of the country, place them with punishment, and then vote for the tomb.” [5] This seems to be neither contrary to laws nor in line with Confucian ethics, so this opinion is also accepted by those in politics.