HL 1. Imperial Chinese Law

1. Imperial Chinese Law
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2000 years ago
Note:QUANDO

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Legalist and Confucian.
Note:DUE VISIONI IN CONFLITTO....GENERATORE

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using the rational self-interest of those subject to law
Note:LA LEVA LEGALISTA 1

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harsh penalties to drive the crime rate to near zero.
Note:ESEMPIO

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strong central government
Note:ANCORA LEGALISTI 2

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equal treatment under
Note:1

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modifying behavior not by reward and punishment but by teaching virtue.
Note:PROGETTO CONFUCIANO

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unequal treatment based both on the unequal status
Note:2

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resolved in favor of the Legalists in 221 B.C.
Note:L ESITO DEL CONFLITTO

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kingdom of Qin defeated all rivals,
Note:QIN...PRIMA DINAATIA IMPERIALE

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succeeded by the Han dynasty, whose legal system was nominally Confucian but in practice a hybrid
Note:I SUCCESSORI

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penalty for an offense depended on the status of the offender,
Note:ESEMPIO

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conflict between 18th and 19th century British approaches
Note:ANALOGIA...700 UTILITARISTA

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criminals as victims of their own ignorance
Note:CONFICIANI...E 800 BRITANNICO

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terms such as “reformatory” and “penitentiary”
Note:CONCETTI CONFUCIANI...RIFARE GLI UOMINI SBAGLIATI

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Law in Imperial China by Derk Bodde and Clarence Morris,
Note:LA FONTE DA CUI TRAGGO....FUOCO SUI QING DA 7 AL 20

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The Law Code
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statutes proclaimed by Emperors
Note:FONTE DELLA LEGGE...TRADIZIONE VENERATA

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Imperial decrees
Note:FONTE 1 CHE ESPANDE LA TRADIZ

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precedents set by officials at a high level,
Note:F2

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official commentary
Note:F3

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unofficial commentary.
Note:F4

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ordinary people depended largely on government officials and their employees for information about legal rules.
Note:TUTTI ANALFABETI...TOP DOWN

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were not about whether the defendant was guilty—the
Note:DI COSA NN SI OCCUPA L APPELLO 1

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whether the lower court acted correctly
Note:NEMMENO....COME DA NOI

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what punishment was appropriate.
Note:PIUTTOSTO

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the proper punishment.
Note:LA PREOCCUPAZ DEI CODICI....LUNGHI ELENCHI...MA NN DELLE COSE PROIBITE

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documentary evidence,
Note:ALTRA STORIA X I TRIB BASSI

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the testimony of witnesses.
Note:ALTRO ELEMENTO

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Punishing Offenses
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Neither imprisonment nor fines
Note:PENE TRASCURATE

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wear the cangue,
Note:PIUTTOSTO...GOGNA...ScCOPO UMILIAZIONE

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various numbers of blows by the light or heavy bamboo,
Note:ALTRA PENA

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penal servitude or life exile,
Note:ALTRA PENA

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capital sentences.
Note:IN CASI ESTREMI

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A sentence to fifty blows of the light bamboo in fact meant twenty,
Note:STRANEZZE...ANCHE LA CONDANNA A MORTE NN ERA MAI A MORTE

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commuted to penal servitude,
Note:MOLTI CONDANNATI

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A convict found to be an only son who needed to remain at home to care for his parents
Note:ESEMPIO DI COMMUTAZIONE

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a rational approach to problems created by the attempt to fully specify the punishment for every offense, permitting the high level bureaucracy to adjust sentences on the basis of considerations not included in the statutes.
Note:INTERPRETAZIONE DI QS PRATICHE

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Strangulation
Note:TRE PENE CAPITALI 1

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decapitation
Note:2

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slicing
Note:3

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the process of redemption.
Note:ALTRA FORMA X DISCONNETTERE PENA EFFETTIVA E NOMINALE

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substitute a money payment for the penalty
Note:ESEMPIO

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cosmic balance required the payment of a life for a life,
Note:GIUSTIFICAZIONE

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If several people were jointly responsible for a murder and one of them sentenced to death, his sentence could be commuted to something non-capital if one of the other offenders happened to die while the legal process
Note:ALTRA SYRANEZZA GIUSTIFICATA CON IL COSMICO BILANCIAMENTO

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executions could only occur at certain times of the year,
Note:ALTRA STRANEZZA

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One can interpret nominally capital sentences as reflecting the needs of cosmic balance,
Note:IL BC NELL INTERPRET DELLA PENA CAPITALE

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punishment becoming less severe over time in a system with barriers to explicit change.
Note:ALTRA ALTRI INTERPRET

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as a way of frightening potential criminals16 and so deterring them while preserving convicts to serve as state slaves.
Note:ALTRA INTERPRET

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In this and other cases, intent was not required for criminal liability; the verdict was based on outcome, not motivation.
Note:CASI DI RESP OGGETTIVA...VIOLAZIONI RELIGIOSE... QUEL TALE CHE ENTRA NEL TEMPIO CON LA PORTANTINA X LA PIOGGIA

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Filling in the Blanks
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Gaps could be filled
Note:NN TUTTO PUÓ ESSERE REGOLATO....ANCHE SE I CODICI ERANO ENORMI

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verdicts taking a form such as “the offense is similar to XYZ,
Note:ANALOGIE

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The underlying assumption was that people ought to know right from wrong without the assistance of the legal code,
Note:COME AVREBBE SENTENZIATO IL RE SE IL CASO GLI FOSSE SOTTOPOSTO?

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cases where the punishment prescribed by the code is clearly too harsh
Note:UN PROBLEMA

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offense fits the letter but not the spirit of the law.
Note:OVVERO

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killing that, according to the law, required capital punishment but was due to an accident involving no fault
Note:ESEMPIO

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find the offender guilty of a capital offense but permit the penalty to be commuted
Note:SOLUZIONE

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The Structure of Authority
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the district magistrate.
Note:FIGURA CHIAVE...80000 250000 ABITANTI

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examination for the civil service
Note:SELEZIONE

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convert the empire, in theory a centralized bureaucracy, into a de facto feudal system,
Note:IL RISCHIO DI DARE TROPPO POTERE A QS SOGGETTI

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forbidding a magistrate from being assigned to any district within his home
Note:ANTIDOTI

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shifting magistrates from district to district every few years, and forbidding a magistrate from marrying a woman from
Note:ANTIDOTI 2 3

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appoint the surviving members of the defeated dynasty as local rulers in some distant part of the empire.
Note:DOPO UNA CONQ....ERA UN INCENTIVO A RESISTERE MENO...PRATICA OTTOMANA

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the censorate,
Note:DIPARTIMENTO DEDICATO A XSEGUIRE I MAGISTRATI DISONESTI

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The Examination System: A Puzzle
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ferociously competitive exams.
Note:IL CONCORSO

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a pass rate of about one percent.
Note:IL SECONDO LIVELLO OGNI TRE ANNI..CE N ERANO TRE

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The metropolitan exam produced 200 to 300 degrees from as many as 8000 candidates
Note:3 LIVELLO

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The exams did not test administrative ability, knowledge of the law, expertise in solving crimes or other skills
Note:UN ESAME DISCONNESSO DAI COMPITI FITURI

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dissertations on the classics,
Note:PROVE DEL METROPOLITANO....FILOSOFIA E LETTERATURA CONFUCIANA

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verse composition,
Note:PROVA 2

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ability to write formal administrative statements
Note:TERZA

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fluent calligraphy,
Note:QUARTA

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Why require the ablest men in the society to spend an extended period of time, often decades, studying to pass the exams instead of applying their skills
Note:SI ARRIVAVA OLTRE I TRENTA

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exams were the equivalent of IQ tests,
Note:UNA POSSIBILE RISPOSTA

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it is hard to believe that there was no less costly way of doing so
Note:OBIEZIONE

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the desire to do a good job—instead
Note:FORSE SI VUOLE INDAGARE LA VOGLIA...MISURA ANTICORRUZIONE

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One might interpret the examination system as a massive exercise in indoctrination,
Note:INSTILLARE AMORE X UN SET DI CREDENZE A CUI LEGARSI X LA VITA

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how to get people to do good instead of evil.
Note:IL NUCLEO DELLO SCONTRO CONFUCIANI LEGALISTI

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Legalist solution was incentives,
Note:LA SOLUZIONE LEGALISTA

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The Confucian solution was education and example,
Note:SOLUZIONE CONFUCIANA

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it made some sense to set up a system designed to produce good men,
Note:IL SISTEMA SEMBREREBBE CONFUCIANO

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They were subject to detailed rules mandating and evaluating their performance,
Note:MA IL TRATTAMENTO DEI BUROCRATI IN SERVIZIO È INCOMPATIBILE CON IL CONFUCIANESIMO

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Alive and Well
Note:Tttttttttttttttttt

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Some of what a college student studies and is tested on may be relevant to the job he applies for but much of it, in the case of many jobs most of it, is not.
Note:DA NOI LA SIT È SIMILE

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American history, Shakespeare, or geometry
Note:ESEMPIO

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human capital theory, the idea that a college education teaches useful things.
Note:LA TEORIA ORTODOSSA

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many students memorize as much as they need to pass the final exam and forget most of it
Note:PROBLEMA

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A second theory is signaling.
Note:SECONDA TEORIA

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smart enough and hardworking enough, sufficiently obedient to the demands of his professors,
Note:OGGETTO DEL SEGNALE

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there should be much less expensive ways of generating the same evidence.
Note:PROB TEORIA 2

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That leaves us with a final theory: indoctrination.
Note:TERZA TEORIA

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the sort of person who has read Shakespeare,
Note:L UOMO CIVILE

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Why employers would want those characteristics, however, is less clear
Note:PROB CON TEORIA 3

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Chinese emperor would want subordinates indoctrinated in Confucian philosophy.
Note:NEL NS CASO TUTTO È PIÙ CHIARO

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Appeals and Accusations
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could be appealed to the provincial governor.
Note:LA CONDANNA DISTRETTUALE ALLE BASTONATE

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sentence of penal servitude
Note:TERZO APPELLO FINO A PECHINO

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The appellant was subject to punishment
Note:TALIONE

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The defendant, a physician whose incorrect treatment had resulted in the death of his patient, was sentenced to strangulation after the assizes, a sentence then commuted to a payment of 12.45 ounces of silver.37 The accuser, the father of the victim, was sentenced to a hundred blows of the heavy bamboo for having “embellished the facts” in his accusation.
Note:ESEMPIO DI UN APPELLO

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The State and the Family: Subcontracting Enforcement
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consequences depended in part on the status of the parties,
Note:NN TUTTI UGUALI

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All relatives were classified as senior or junior to each other.
Note:L ETÀ PESA MENA DELLA POSIZIONE SULL ALBERO

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an uncle was senior to his nephew even if the nephew was older.
Note:Ttttttttt

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For an offense committed by a junior relative against a senior relative, penalties were increased;
Note:ESEMPIO DI PRIVILEGI

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It was a criminal offense for a child to accuse his parent of a crime even if the parent was guilty,
Note:ONORA IL PADRE E LA MADRE...CINA IMERIALE ######COSE IMPARATE OGGI

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“If a son did report his father’s crime to the authorities, he would receive the same punishment as his father
Note:ESEMPIO

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a small bureaucracy of elite scholar-officials to rule a population of about four hundred million.
Note:IN QS CONDIZIONI OGNI CAPOFAMIGLIA È QUASI UN PUBBLICO UFFICIALE...ECCO XCHÈ TANTI PRIVILEGI

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At some periods a father could get official approval to kill a disobedient son.
Note:IL BAMBINO DISOBBEDIENTE

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a husband who killed his wife because she had struck or reviled his parents received only 100 blows of the heavy bamboo.
Note:PENA ESEMPLARE :-/ #########

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An inferior was expected to obey orders from a superior to commit an illegal act but might still be liable for committing it,
Note:SITUAZIONE IMBARAZZANTE

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Practitioners, “litigation sticks,” were viewed as troublemakers out to stir up unnecessary conflict.
Note:AVVOCATI COME I CARABINIERI...MOTIVO...SCORAGGIARE IL RICORSO AI TRIBUNALI ##########

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making involvement with the legal system unpleasant for all concerned.
Note:UN UNIVERSITÀ DO X SCORAGGIARE IL RICORSO ALLA GIUSTIZ

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legal to torture witnesses
Note:ESEMPIO

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Participants in the legal process were expected to act as humble petitioners, recognizing the vastly superior
Note:STATUS ATTESO

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appear in court was considered by the people at large as a terrible misfortune,
Note:NESSUNA MERAVIGLIA

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referring the case to one of the age-old organs of private justice, for example the council of the family—or
Note:SOLUZIONI ALTERNATIVE

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The fees paid to yamen runners [criminal catchers] might bankrupt plaintiff as well as defendant.
Note:TUTTO COSTOSISSIMO

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accuser was subject to the penalty that would have been imposed on the accused if found guilty, a risk that might be avoided by making the accusation anonymously.
Note:ACCUSE ANONIME

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For an official to act on an anonymous accusation was a criminal offense,
Note:RIMEDIO

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for an individual to submit an anonymous accusation a capital offense.
Note:RIMEDIO 2

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Between Civil and Criminal
Note:Ttttttttttttttttt

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differed only slightly from those used in criminal cases.
Note:LA PROCEDURA CIVILE

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no procedure by which a wronged party could bring suit.
Note:PANCRIMINALIZZAZIONE DEL SISTEMA CINESE

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the legal system was viewed by the Confucian elite
Note:SOLUZIONE CHE RIFLETTE BENE LA VISIONE CONFU

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a considerable degree civil in substance when dealing with what it considered minor matters: land, debt, marriage and inheritance.
Note:DI FATTO

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A debtor who failed to agree to pay could be punished.
Note:RISARCIMENTO E PENA NEI FATTI

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The parties did not, as in a modern civil case, have the right to end it by an out-of-court settlement. They could, however, humbly request the magistrate to cancel the hearing.
Note:PENALE NELLA FORMA MA...

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informal mediation not involving the court
Note:DI FATTO METODO MASSICCIAMENTE IMPIEGATO

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when, early in the twentieth century, the final dynasty was replaced by the Chinese Republic.
Note:TUTTO RIMASE INVARIATO SENONCHÈ LA CORTE SUPREMA COMINCIÓ A TRATTARE IL CIVILE COME IN OCCIDENTE

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Like a modern American court judging a tort case, the Supreme Court was providing justice only between the parties.
Note:NELLA REPUBBLICA

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An Imperial magistrate dealing with a sufficiently tangled property dispute might resolve it by awarding ownership to neither party, converting the land to state property
Note:SOLUZIONE POSSIBILE NELLa PANCRIMINALIZZAZIONE

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Contract Without Law
Note:Tttttttttttttttttt

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China ceded the island of Taiwan to Japan.
Note:1895

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maintain the existing legal system.
Note:LA NOBILE INTENZIONE...

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the combination of elaborate contractual practice with an almost total absence of contract law,
Note:UNA CARATTERISTICA

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settling contract disputes within family, clan or guild.
Note:ARBITRI

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development of private courts at the major trade fairs, run by merchants and relying heavily on reputational enforcement.
Note:PROBLEMA ANALOGO NEL MEDIOEVO...LA NS SOLUZIONE

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It was a criminal offense to fill their role without government authorization.
Note:L ARBITRO PRIVATO È XSEGUITO IN CINA

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retain a firm’s reputation,
Note:L UNICO STRUMENTO DI ENFORCEMENT

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a system of rules designed to minimize the reliance on courts
Note:CLAUSOLE CONTRATTUALI

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One example was the rule we call caveat emptor.
Note:ESEMPIO

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no recourse if they turned out to be defective.
Note:Ccccccccccccf

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linkage between possession, ownership, and responsibility.
Note:ALTRO ESEMPIO

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Goods in my warehouse were mine

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A buyer who breached forfeited his deposit,
Note:MOLTE PRECAUZIONI....DEPOSITI E REPUTAZIONE

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Important elements in making the system work were the existence of a system of written forms using standard boilerplate terminology understood by the parties
Note:CODICI PRIVATI

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Chinese merchants more than a century ago succeeded in maintaining a sophisticated system of contracts with little use of state enforcement.
UN MIRACOLO CHE VA OLTRE LA LEX MERCATORIA.....FUNZIONA ANCHE SENZA ARBITRI...SOLO CON DEPOSITI E