Just Curious

In Re Hsu Chung Wei

Today I finished the first Chinese case I've ever read in my life. It is In Re Hsu Chung-Wei, Po-an hsin-pin 2:24-31b (Board of Punishments, Chekiang Department, 45th year of Ch'ien-Lung)

It was an opinion by a panel of appellate judges from the Chekiang Department of the Ministry of Justice, sitting in review of a homocide case, in the year 1780. The father of the victim was apparently bribed by the perpetrator to settle the killing in private.

The outcome of the case was truly astonishing. It reflects how different the notions of natural justice was in pre-20th century China. I almost couldn't believe my eyes when the final sentences were meted out. It was no surprise of course that the perpetrator was sentenced to death by hanging, to be executed after the Fall Assizes and the District Magistrate who overlooked and held the deceased to have died from suicide was impeached. What was truly fantastic (and I use the word in a negative sense) was that instead of punishing the father for covering up the manslaughter of his son, the learned Judges decided to punish the younger son, who reported the case, instead. Their Lordships' rationale was as follows:

First, law must be "balance[d]...with compassion so that [the Court] can act in accord with proper human relationships, giving due consideration to both gratitude and propriety." This is especially true in a "criminal case involving father and son and elder and younger brother."

Second, under the Code, there is a "general provision which stipulates that whoever voluntarily surrenders after committing an offense shall be exempted from punishment."

Third, where a relative, who shares with an offender the legal privilege of mutual concealment of offenses (cf. Roman Law provisions), reports for the offender, it shall be considered as if the offender himself had voluntarily surrendered.

Fourth, "the official interlinear commentary" of the Code "states that where family juniors accuse their seniors, the senior shall be exempted from punishment under the principle of voluntary surrender, while the junior shall be punished..."

All of these comports with "natural justice" because "not only will the" younger brother's "be fully satisfying the obligation he owes to his elder brother; moreover, he will in no way be remiss in showing the gratitude which a son owes his father."

This really is fantastic. It left me quite speechless. I wonder what Kant or Bentham would have thought of it.

posted by James Chang @ 4:46 PM