Jing 2014 Offenses

Title Information


Author: Fenghua Jing – Translator: Danny Hsu

Title: Representation and Practice in "Privately Settling Illicit Sex Offenses," with Attention to the "Third Realm" from the Late Imperial Period to the Present

Subtitle: -

In: The History and Theory of Legal Practice in China: Toward a Historical-Social Jurisprudence

Edited by: Philip C.C. Huang and Kathryn Bernhardt

Place: Leiden

Publisher: Brill

Year: 2014

Pages: 150-172

Series: The Social Sciences of Practice 3

ISBN-13: 9789004276437 (hbk.) – Find a Library: Wikipedia, WorldCat | ISBN-13: 9789004276444 (ebk.) – Find a Library: Wikipedia, WorldCat

Language: English

Keywords: 20th Century, 21st Century | Chinese History | Prosecution: Laws



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Additional Information


Abstract: »Privately settling illicit sex offenses has long existed in a legal gray area. Operating under the model of two-party court litigation, the Qing crime of "privately settling illicit sex offenses" proceeded from the fundamental starting point of the state's desire to uphold the public interest and made it the victim's obligation to report the crime and file suit. However, in practice, cases involving illicit sex were sometimes handled through mediation by xiangbao, who would arrange for the offender to provide financial compensation to the victim, and then for either the victim or the xiangbao to petition the government to withdraw and close the case. The government would then order an investigation of the situation surrounding the case, thus revealing the tension between the different sets of logic that undergirded the handling of "trivial matters" and "weighty matters." The establishment of a new judicial system in the modern period brought rape within the scope of the state's prosecutorial system, meaning that now the state, and not the victim, was a party to the case. Though "privately settling illicit sex offenses" was no longer considered a crime, state authorities would also not longer accept related direct petitions to withdraw a case. To achieve the same effect, the victim now had to lie and claim a love relationship with the offender, but in so doing risk the danger of imprisonment for committing perjury and concealing a crime. The state prosecution system's denial of the private settlement of illicit sex offenses represents a rigidification experienced under the "formalization" of the law. Moreover, cases that fall under the "complaint by the victim herself" system are susceptible to abuse by the powerful. How to foster a positive and effective "third realm" of interaction between societal mediation and state adjudication remains a problem that awaits further exploration.« (Source: Article)

Contents:

  Abstract (p. 150)
  Research from Contemporary Case Records of "Privately Settling Illicit Sex Offenses" (p. 151)
  "Privately Settling Illicit Sex Offenses" in the Qing Code (p. 153)
  "Privately Settling Illicit Sex Offenses" in Qiing Legal Practice (p. 156)
    Private Settlement before the State Was Aware of the Matter (p. 156)
    Private Settlement after the State Was Aware of the Matter (p. 157)
  Changes in the Modern Conception of Illicit Sex Crimes (p. 161)
    A Substantive Spilt in "Privately Settling Illicit Sex Offenses" (p. 161)
    Rape Cases and Public Prosecution (p. 162)
  Private Settlement of Rape Cases under the Public Prosecution System (p. 163)
    Private Settlement in the Absence of Prosecution (p. 163)
    Withdrawing a Complaint (p. 164)
  Rape and Complaint by the Victim Herself (p. 167)

Added: July 19, 2014 | Last updated: July 19, 2014