The thought of benevolent government has a long historical tradition and is the epitome of the theory of state governance in ancient China. Inherit the judicial concept in the traditional benevolent government thought, and promote the improvement of procuratorial work ability and case handling quality and efficiency through the construction of procuratorial culture.
Absorb the Essence of the Judicial Tradition of Benevolent Government and Promote the Construction of Procuratorial Culture
In the construction of procuratorial culture, we should learn the essence of the judicial tradition of benevolent government, combine it with the specific reality of procuratorial work, and realize the innovative development of the judicial tradition of benevolent government in the construction of procuratorial culture. The traditional thought of benevolent government constitutes the "local resources" of the construction of procuratorial culture. After reorganization and transformation, the outstanding factors can be creatively transformed into the components of modern procuratorial culture, so as to integrate the construction of procuratorial culture into high-quality and efficient procuratorial performance, and demonstrate the strength of procuratorial culture in legal supervision.
Chinese excellent traditional legal culture is an important source of procuratorial culture construction in the new era. The thought of benevolent government has a long historical tradition, which can be called the epitome of the theory of state governance in ancient China. In the contemporary era, as the guardian of public interests, the procuratorial organ of our country is an important force to promote the modernization of the national governance system and governance ability. It should inherit the judicial concept in the traditional benevolent government thought, and promote the improvement of procuratorial work ability and case handling quality and efficiency through the construction of procuratorial culture.
The Judicial Concept in the Traditional Thought of Benevolent Government
The thought of benevolent government in China has a long history. The rulers of the Western Zhou Dynasty put forward the idea of "being virtuous and cautious in punishment" and advocated "being virtuous before punishment", which paved the way for the development of the theory of benevolent government in later generations. The core of Confucius' theory is "benevolence", advocating "benevolence" for governance and "virtue" for governance. Mencius inherited Confucius' "benevolence theory" and put forward a more systematic "benevolent policy" thought. He said: "When the monarch conducts a benevolent policy, he will be close to the people and die." Benevolent policy is a broad theory of national governance, not a pure judicial concept. However, in ancient China, justice was an inevitable part of national governance. Therefore, benevolent rule naturally ran through all aspects of judicial activities, thus forming the judicial tradition of benevolent rule. Centering on the core of "benevolence", the thought of benevolent government puts forward multiple specific requirements for judicial officers.
Be kind. The so-called "benevolence" can be expressed as Mencius' "unbearable heart". Mencius said, "The former king had a heart that could not bear people, so he had a policy that could not bear people. With a heart that could not bear people, the governance of the world could be achieved." This "heart that could not bear people" is derived from human nature's compassion for those suffering, and it is also human nature. Mencius gave an example: "When people see a child entering a well at first sight, they are all afraid of compassion. It is not because they want to make friends with the parents of the child, or because they want to be praised by the local party friends, or because they want to be bad at their voices. From the perspective of truth, without compassion, they are not human." With benevolence inside and benevolence outside, they can become benevolent men in daily life, and only in justice can they truly seek benevolence in law.
Fengren Dao. The way to realize "benevolence" is "benevolence". Benevolence is the core value and guiding principle of Confucianism in dealing with individuals, society, nature and their relationship. If benevolence belongs to individual quality, then benevolence is reflected as a universal social norm. The so-called benevolent politics is benevolent politics based on benevolence. Fengren Dao means that through judicial activities, the value of benevolence can be widely implemented to build an ideal society, and finally reach the realm of "the world returns to benevolence" and "benevolence covers the world". Benevolence has a rich connotation, and "loyalty and forgiveness" is its core meaning. Those who uphold benevolence will certainly attach importance to the people's hearts and livelihood, so the concepts of "protecting the people", "benefiting the people" and "valuing the people" are based on benevolence; In judicial practice, judicial principles such as "sorrow and modesty convert to imprisonment", "leniency first" and "original feeling of guilt" are also natural derivatives of benevolence.
Shi Rende. The core of "benevolence" is "benevolence". In order to realize the ideal of "the world returns to benevolence", it is not enough for judicial officers to only handle cases according to law, but also to be good at moral education in handling cases. Confucius said, "To kill without teaching is to abuse." Mencius said, "To govern well is better than to teach well."; "His teachings were not changed and then he was punished". Xunzi also said, "If you do not teach and punish, the punishment will be numerous and evil will be invincible." This is to emphasize that the purpose of the law is not only to punish criminals, but also to promote the overall moral standard of the society. Therefore, the application of the law is actually the implementation of benevolence and morality, and both are external and internal. In ancient western countries, rulers mainly relied on religious authority to lay the legitimate foundation of law, while in ancient China, Confucianism tried to provide rational moral authority for the formulation and implementation of law.
Be benevolent. The manifestation of benevolence in individuals creates "benevolent people". In Confucianism, benevolence represents the perfect personality that can practice benevolence. Another expression of benevolence is "good" or "holy". The Shangshu Lv Xing said: "If you are not a sycophant, you should be a good person, and you should not be in the middle." Liu Anyun, the patriarchal clan of the Western Han Dynasty, said: "Although the law exists, you must treat the saint before governing." The ancient sages described the qualities that "benevolent people" should have from different perspectives. Zhuge Liangyun said, "My heart is like a balance, and I can't be a judge", saying that judicial personnel should be loyal to their duties and handle cases impartially; Dong Zhongshu said, "To be honest and fair, we should not accept bribes. Please listen to us. We should hear the case according to the law, and nothing will happen." It said that judicial personnel should be honest and upright, and not play favoritism; Confucius said: "A good man is a nation for a hundred years, and he can also defeat the enemy and kill the enemy." It said that judicial personnel should be cautious in using punishment and probation; Mozi said: "Reward the worthy and punish the violent. Do not kill the innocent, do not lose the guilt." It said that the judicial personnel should be aware of everything, not in vain; Confucius said, "If you restrain yourself and return to propriety, the world will return to benevolence. For benevolence, it is up to you, but it is up to you." What he said is the importance of "benevolent people" for the implementation of benevolent government.
The Innovation and Development of the Judicial Tradition of Benevolence in the Construction of Procuratorial Culture
Culture manifests itself in human behavior, and in turn shapes human behavior. One of the ultimate goals of building the procuratorial culture is to create a good social image of the procuratorial organ and improve the social recognition and trust of the procuratorial work. The judicial tradition of benevolent governance emphasizes that judicial organs should treat litigation participants with a fair, kind and benevolent attitude, pay attention to people first, pay attention to people's livelihood and serve the people. This concept is crucial to building a procuratorial organ with a good image and deep trust of the people.
The construction of procuratorial culture can draw rich nutrients from the judicial tradition of benevolent governance, including: first, guiding good governance by handling cases. The "governance" of benevolent governance means governance, and the result of "benevolent" governance will inevitably lead to good people-oriented governance. Therefore, the introduction of the traditional judicial concept of benevolent government into the construction of procuratorial culture requires procurators not only to pursue the legality and justice of cases, but also to place procuratorial work in the context of national governance and social governance when performing their duties. High quality procuratorial work should achieve good results of "handling one case, governing one area and benefiting one party"; At the same time, the procuratorial organ should strengthen close ties with other organs, promote the fundamental solution of social problems, and promote social stability and development. Second, be close to people and show the legal temperature. The judicial tradition of benevolent government emphasizes kindness and humanity, and people first. This requires prosecutors not only to handle cases strictly according to law, but also to establish the image of "benevolence" in handling cases; We should not only protect the general rights and interests of litigation participants, such as the right to know, the right to defend, the right to debate, and the right to appeal, but also pay attention to the protection of the special rights and interests of vulnerable groups, and constantly meet the needs of the people for fairness and justice. Third, we should integrate legal will and human feelings to promote social harmony. The judicial tradition of benevolent politics requires seeking benevolence in law, and it needs to find an appropriate yardstick between "certain law" and "leniency". This requires procurators to be good at using the case handling thinking of combining "legal judgment" and "emotional judgment". On the one hand, the formal normalization of law is realized through strict administration of justice; On the other hand, integrate emotion into law, realize the substantive rationality of law, so as to achieve the purpose of resolving disputes and stabilizing society, establish judicial authority in the whole society, and improve judicial credibility. Fourthly, education should be integrated into law, and justice should be used to guide people to be good. This requires that prosecutors should not only be passive law applicators, but also occupy the moral commanding heights when handling cases. The purpose of punishment is to show the good and defeat the evil, not to punish blindly. It is necessary to transform the concept of good and legal awareness into people's thoughts in the way of guidance, indoctrination and subtle influence. Fifth, keep integrity and be a "benevolent person" in justice. As a member of the judicial organ, procurators should not only have professional ability, but also have noble morality and moral cultivation. They should become "benevolent people" in the judiciary. They should not only establish a clean and fair image in society, but also show the side of sincere care.
It is worth pointing out that the traditional thought of benevolent government was formed and developed in the ancient social environment, which is not consistent with the modern spirit of rule of law. For example, its humanistic color is very strong, "if you encounter benevolence, you will be a baby; if you encounter indifference, you will be a fish"; For another example, it has the tendency to derogate from or even suppress civil rights and freedoms, so as to "damage the personality of national autonomy". Therefore, it is necessary to carry out innovative development of the traditional benevolent politics. As early as 1939, Mao Zedong put forward the idea of "great benevolence", that is, "benevolence is the thought and behavior beneficial to the majority of people", and advocated combining the theory of benevolence with safeguarding the fundamental interests of the people. This has important methodological guiding significance for the inheritance and development of the traditional concept of benevolent government.
In the construction of procuratorial culture, we should absorb the essence of the judicial tradition of benevolent government, combine it with the specific reality of procuratorial work, and realize the innovative development of the judicial tradition of benevolent government in the construction of procuratorial culture. First of all, the content of benevolence or benevolence should realize the transformation of modernization, eliminate the dross of the feudal "love, filial piety and fraternity" thought, and organically combine it with the socialist core values. Secondly, benevolent administration and justice should be placed within the modern legal system. Prosecutors should exercise their discretion within the legal framework to avoid unprincipled extrajudicial benevolence. Finally, benevolent administration of justice should also be unified with modern rights protection theory, with respect for the legal rights of litigation participants as the bottom line. The implementation of benevolent justice can go beyond the scope of rights protection, but it cannot be at the expense of the rights of others. In a word, the traditional thought of benevolent government constitutes the "local resources" of the construction of procuratorial culture. The outstanding factors among them can be creatively transformed into the components of modern procuratorial culture after reorganization and transformation, so as to integrate the construction of procuratorial culture into high-quality and efficient procuratorial performance of duties, and highlight the strength of procuratorial culture in legal supervision.
(The author is a professor of Law School of Shanghai University of Finance and Economics)
