In this voluminous treatise Dr. Nakada intends to supply some points which were left untouched in his two recently published treatises:. " Opinions on, the old Japanese Law-including some views on Chinese legal History " .(in Vol. I of this Review) pp. 4-12, pp. 21-28, and. " Evolution of the Chinese Legal System " (Comparative Law Review, . Vol. I. No. 4.). The author makes efforts, as in the previous treatises, . to treat the subjects synthetically and in a wide prospect. Historical and constructive thinking, sharp and profound, of a great scholar runs through the whole pages. Indeed, we find in it the best description ever known of the general history of the Chinese legal system and philosophy from the beginning to the era of Tang dynasty. It is. almost impossible, to summarize its contents here. Only a brief mention shall be made of the subjects it discusses.
The treatise is divided into two parts.
Part 1. On the law of premium and penalty, before Chin Shihhuang-ti.
The author grasps the general character of the law in ancient China-as the law of premium and penalty. He says that these two were the main means in the hands of feudal sovereigns by which they governed their states, penalty being the more important one ; laws, which were no other than declarations of the sovereign will, were enforced by penalty directly or indirectly. Next the author follows various trends. of legal philosophy one by one : that of the traditional Chinese orthodoxy, and those of Kuan-tzu (_??__??_), Chuang-tzu (_??__??_), Shen-tzu (_??__??_), Yin-wen-tzu Shen-pu-hai (_??__??__??_), Shang-tzu (_??__??_), and Han-fei-tzu (_??__??__??_). And summarizes points of each doctrine by clear words. He also picks up paragraphs of law which remains in the. lines of classics and classifies them according to their concerns.
Part 2. On the origin and development of the Lü-Linq (_??__??_) Codes. from Han to Tang dynasty.
The author endeavours above all to clear up questions about the legal system in Han dynasty. It has already been discussed in his late treatises that, in Han, Lü (_??_) was the fundamental code while Ling (_??_) was the supplimentary code consisting of occasional ordinances of Emperors, the distinction between the two not being penal and non-penal codes as is generally conceived, and the latter distinction beginning in Chin (_??_) dynasty. In the present treatise, he consolidates that opinion of his by solving, - with admirable -clarity, many questions in details, which have long puzzled Chinese and Japanese scholars and which have not been thoroughly solved in -the author's previous treatises. Furthermore, he refers to K'o (_??_) and Pi (_??_) :-Pi -meaned judicial precedents in general, some of which were authorized through a sort of law-making procedure and were called K'o. Therefore K'o was a sort of supplimentary laws to the Lü-Ling codes. K'o, which -dates from Han dynasty, became in Northern Wei (_??__??_) also called Ko (_??_). In Sui (_??_) dynasty Ko became a special kind of code which modified Lü and Ling, at the same time, Shih (_??_) or the code regulating details of bureaucratic business was compiled, and so was accomplished the well known system of four codes Lü-Ling-Ko-Shih. in Sui and Tang era. (Shuzo. Shiga)

抄録全体を表示

Sanhedrin was the-supreme organ of the Hebrew people, which led the people in political, legal and all other kinds of social activities and which gave judgement on various questions. After the downfall of the Kingdom Sanhedrin became the machinery to rule the Hebrews. Thus the Iranian king, King Alexander and his successors all admitted that it had the supreme power to judge all disputes among the Hebrews. Now, in order to understand its position-and, therefore, to what degree the Hebrews were allowed autonomy-, after the whole Judea became the Roman territory, the trial of Christ provides valuable materials. When we examine the proceedings and others in this trial, upon the Scriptures which is our main source, we come to the conclusion that the trial proceebings in the Sanhedrin were in complete disregard of the rules of procedure and that the Sanhedrin there was not much more than a conference to give shape to the will of the Hebrews to prosecute Christ to the Roman tribunal. Therefore we can see that autonomy in the sense that the Hebrews were allowed to enjoy laws of their own through the activities of Sanhedrin had ceased to be allowed to them. But we must admit that Pilate carried out the trial of Christ lawfully as regards form.

抄録全体を表示

In the fourth and the fifth centuries A. D., the Völkerwanderung movement swept over the length and breadth of the Eurasian Continent. After this great movement, the territorial boundaries were set but the law to be applied in each case of adjudication was determined in accordance with the principle of personal law. In other words, in the Asian, as well as the European part of the Eurasian Continent, . there existed manifold legal systems and a particular one among them would be singled out to be applied to a particular case in accordance with the nationality of the person or persons involved.
Under such circumstances, it was inevitable that the principle of Busse in the indigenous law of the northern races clashed, after these races had invaded and occupied northern areas of China, with the principle of corporal punishment in the traditional Chinese law. This. kind of clash of legal principles dates back even before the Chin (_??_) and Han (_??_) dynasties.
According to the Tang lü (_??__??_) (code of Tang dynasty) enforced in the seventh and the eighth A. D., an affair between two foreigners of the same nationality was to be adjudicated by the Chinese court in accordance with the law of that nation (principle of personal law) and the Chinese law governed the relation between two foreigners of different nationalities and the relation between a Chinese and a foreigner (principle of territorial law). The code of the Sung (_??_) dynasty also adopted the same principles.
However, some informations after the 11th century show that the Chinese authorities allowed some latitude in the application of the law to foreigners. They usually applied to foreigners their national law in order to win their hearts.
Under the foreign domination during the Liao (_??_), Chin (_??_), Yuan (_??_) and Chin (_??_) dynasties, the problem of conflict of law was solved along the above-mentioned traditional lines but necessary modification of the traditional principles was made to conform with the changing realities of each age. This thesis aims at a historical description of the contact of legal systems of various races within the Chinese territory.

抄録全体を表示