论文部分内容阅读
Abstract ： In 1935， Shi Jianqiao assassinated Sun Chuanfang who was a leader of the Northern Warlords. This case shocked the whole society， while it has been hearing by Tianjin Local Court and the High Court of Justice in Herbei. Finally， Shi Jianqiao was sentenced to seven years， according to the verdict made by the Court. However， the National Government remitted the punishment for Shi Jianqiao under the pressure of public opinion and influences by revanchism of traditional confucius ideas. This case reflects the conflicts between localization and internationalization， law and reason in the process of modern criminal law reform.
Key words： Shi Jianqiao； Internationalization of criminal law； Localization of criminal law； Conflict
In october，1935， a major case happened in Tianjin， shocking at home and abroad. Sun Chuanfang， one of the Northern Warlords and commander of the Five-Province Allied Forces， was assassinated in a Buddihist Lodge， by a legendary woman named Shi Jianqiao （1905-1975） who was born in Tong city of Anhui province. Shi Jianqiao killed Sun Chuanfang in revenge for the death of her father.
After the assassination， Shi Jianqiao took the initiative to surrender herself to justice and was willing to bearing all consequences of killing. According to the first instance by Tianjin Local Court， Shi Jianqiao was sentenced to ten years. The High Court amanded the judgement and gave Shi Jianqiao a seven-year sentence. After the verdict was made by the Court， this case sent shock waves，the women’s Fedarations and many socialites written statements to the National Government to absolve Shi Jianqiao from guilt. Under the pressure of public opinion， in October，1936， the National Government remitted the pubulishment for Shi Jianqiao by using the excuse that Shi Jianqiao was still essentially good.
1.The case under the international field of vision
After the accurrence， Shi Jianqiao took the initiative to surrender and was willing to bear the corresponding legal liability， at the same time， the trial of the case was in strict accordance with the modern western judicial proceduce. Also on the premice of the material evidence， documentary evidence and testimony of witnesses， prosecutors claimed that the killing behavior of Shi Jianqiao conformed to the law of homicide in the article 187 and the article 271 of the criminal law and requested the court for punishment.
In spite of the influence of the social opinion and interruption of some authorities， just for the perspective of procedure， the whole process of the trial on Shi Jianqiao’s case is fully in conforming with the values of modern criminal law and criminal procedure law. The joint participation of the prosecutor， the defendant and the trial， the lawyers’ defense， the adopted law and value， all of these are right in law and made a legal trial. Should this case happened in the western country， there was not much difference in the result between western court and the National Government’s court. 2 The case under the view of the localization
During the period of the Republic of China， in reference to the process of internationalization of criminal law reform on basis of the western law， revenge this serious violation with the spirit of the modern western criminal law system would be forbidden. In the Republic of China， the special period of transition from ancient time to modern time， the transplantation of criminal formly completed the internationalizational change. But essentially， under the influence of traditional notion of revenge， the well-formulated criminal law was not accepted abided by and believed in the general public. Therefore， there was a case in accordance with the law， but the public also strongly objected to and required to pardon Shi Jianqiao.
There were two reasons why all circles of society sent telegrams to ask to pardon Shi Jianqiao. First， it had something to do with filial piety. Secondly， it was praised that Shi Jianqiao killed the villian for society. Under the pressure of the public opinion and also for advocating filial piety， the National Government ordered a pardon for Shi Jianqiao in October 1936， gaining the support from general public.
3. The conflicts between the reform of modern criminal law
Law should be reformed by adopting social changes. The contradiction between internationalization and localization is the major conflict in the process of modern China’s criminal law reform.Rule of law is the common demand for the development of world law.
The reality could’t be apart from the history， while the traditon is destined to influent the reality. Therefore， we should put stress on the strength of traditional law and discover the positive aspect from traditional law， making it to play a positive role in reality. Attentions should be paid to the exploration and inheritance for resources of local law in the process of criminal law reform.
Reference：
[1]Cao Quanlai，Tutorial Chinese modern legal history ，The Commercial Press ，2012（1）
[2]Ma Xiaohong& Chai Rong&？Liu Tingting，China history of legal thought ten talk ，China Renmin University Press ，2008（1）
[3]Guo Hui&Liu shan，Multiple analysis of national revival under Shi Jianqiao revenge case，The Republican Archives ，2013（2）
[4]Te Li&Zhen Fei，Sun Chuanfang was assassinated by the trial[J]，Hubei archives，2002（7）
[5]The second historical archives of China Museum，a group of historical materials of Shi Jianqiao about the shooting of Sun Chuanfang ，Archives of the Republic of China，2008（2）
[6]Ma Xiaohong，Historical review and Reflections on the rule of law[J].legal research，1999（2）
Key words： Shi Jianqiao； Internationalization of criminal law； Localization of criminal law； Conflict
In october，1935， a major case happened in Tianjin， shocking at home and abroad. Sun Chuanfang， one of the Northern Warlords and commander of the Five-Province Allied Forces， was assassinated in a Buddihist Lodge， by a legendary woman named Shi Jianqiao （1905-1975） who was born in Tong city of Anhui province. Shi Jianqiao killed Sun Chuanfang in revenge for the death of her father.
After the assassination， Shi Jianqiao took the initiative to surrender herself to justice and was willing to bearing all consequences of killing. According to the first instance by Tianjin Local Court， Shi Jianqiao was sentenced to ten years. The High Court amanded the judgement and gave Shi Jianqiao a seven-year sentence. After the verdict was made by the Court， this case sent shock waves，the women’s Fedarations and many socialites written statements to the National Government to absolve Shi Jianqiao from guilt. Under the pressure of public opinion， in October，1936， the National Government remitted the pubulishment for Shi Jianqiao by using the excuse that Shi Jianqiao was still essentially good.
1.The case under the international field of vision
After the accurrence， Shi Jianqiao took the initiative to surrender and was willing to bear the corresponding legal liability， at the same time， the trial of the case was in strict accordance with the modern western judicial proceduce. Also on the premice of the material evidence， documentary evidence and testimony of witnesses， prosecutors claimed that the killing behavior of Shi Jianqiao conformed to the law of homicide in the article 187 and the article 271 of the criminal law and requested the court for punishment.
In spite of the influence of the social opinion and interruption of some authorities， just for the perspective of procedure， the whole process of the trial on Shi Jianqiao’s case is fully in conforming with the values of modern criminal law and criminal procedure law. The joint participation of the prosecutor， the defendant and the trial， the lawyers’ defense， the adopted law and value， all of these are right in law and made a legal trial. Should this case happened in the western country， there was not much difference in the result between western court and the National Government’s court. 2 The case under the view of the localization
During the period of the Republic of China， in reference to the process of internationalization of criminal law reform on basis of the western law， revenge this serious violation with the spirit of the modern western criminal law system would be forbidden. In the Republic of China， the special period of transition from ancient time to modern time， the transplantation of criminal formly completed the internationalizational change. But essentially， under the influence of traditional notion of revenge， the well-formulated criminal law was not accepted abided by and believed in the general public. Therefore， there was a case in accordance with the law， but the public also strongly objected to and required to pardon Shi Jianqiao.
There were two reasons why all circles of society sent telegrams to ask to pardon Shi Jianqiao. First， it had something to do with filial piety. Secondly， it was praised that Shi Jianqiao killed the villian for society. Under the pressure of the public opinion and also for advocating filial piety， the National Government ordered a pardon for Shi Jianqiao in October 1936， gaining the support from general public.
3. The conflicts between the reform of modern criminal law
Law should be reformed by adopting social changes. The contradiction between internationalization and localization is the major conflict in the process of modern China’s criminal law reform.Rule of law is the common demand for the development of world law.
The reality could’t be apart from the history， while the traditon is destined to influent the reality. Therefore， we should put stress on the strength of traditional law and discover the positive aspect from traditional law， making it to play a positive role in reality. Attentions should be paid to the exploration and inheritance for resources of local law in the process of criminal law reform.
Reference：
[1]Cao Quanlai，Tutorial Chinese modern legal history ，The Commercial Press ，2012（1）
[2]Ma Xiaohong& Chai Rong&？Liu Tingting，China history of legal thought ten talk ，China Renmin University Press ，2008（1）
[3]Guo Hui&Liu shan，Multiple analysis of national revival under Shi Jianqiao revenge case，The Republican Archives ，2013（2）
[4]Te Li&Zhen Fei，Sun Chuanfang was assassinated by the trial[J]，Hubei archives，2002（7）
[5]The second historical archives of China Museum，a group of historical materials of Shi Jianqiao about the shooting of Sun Chuanfang ，Archives of the Republic of China，2008（2）
[6]Ma Xiaohong，Historical review and Reflections on the rule of law[J].legal research，1999（2）