Abstract
China has a long history of legal civilization. In ancient times, the Chinese legal system was model in East Asia, exerted significant influence on the neighboring countries and was an important part of the global legal civilization. Traditionally, Chinese law is mostly based on the Confucian philosophy of social control through moral education, as well as the legalistic emphasis on codified law and criminal sanction. The spirit of traditional Chinese law can be summarized as (1) humanism; (2) moral enlightenment and prudent punishment; (3) law of nature; (4) the rule of law; and (5) avoidance of litigation. These influences can also be seen in contemporary China or Chinese law. However modern Chinese law is referred to as the Socialist legal system primarily based on Germanic-style civil law. The core of modern Chinese law is based on Germanic-style civil law, socialist law and traditional Chinese approaches. For most of the history of China, its legal system has been based on the Confucian Philosophy. Following the Revolution of 1911, the Republic of china adopted a largely Western style legal code in the civil law tradition. The establishment of the People’s Republic of China in 1949 brought with it a more soviet influenced system of socialist law. However, earlier from Chinese history have retained their influence.
Introduction:
China has the longest continuous history of any country in the world 3,500 years of written history so does its legal history. Chinese law is one of the oldest legal traditions in the world, based on the Confucian philosophy of social control through moral education as well as the Legalist emphasis on codified law and criminal sanction. These influences can also be seen in contemporary china.
The word for law in classical Chinese was fǎ. The Chinese character for fǎ denotes a meaning of "fair", "straight" and "just", derived from its water radical. It also carries the sense of "standard, measurement, and model". Derk Bodde and Clarence Morris held that the concept of fǎ had an association with yì ("social rightness").
Two traditional Chinese terms approximate "law" in the modern Western sense. The first, fǎ, means primarily "norm" or "model". The second, lǜ, is usually rendered as "statute".
According to Shuo Wen Jie Zi, a dictionary compiled by Xu Shen in the Eastern Han Dynasty (around AD 100-121)3, “law” means criminal punishment.
Traditional Chinese law refers to the laws, regulations and rules used in China up to 1911, until the fall of last Imperial dynasty. In 1911, Imperial China came to an end with the overthrow of the Qing dynasty and it was the turning point for the development of modern Chinese law with the adoption of codified system of law as per the influence of Germany. Traditional Chinese law consists of both legalist and Confucian traditions of social orders and governance. The traditional Chinese law was free from the influence of the common law and civil law traditions of the west.
While modern Chinese law is the amalgamation of traditional Chinese law and socialism with Chinese characteristics. Socialism with Chinese characteristics is a board term for political theories and policies that are seen by their proponents as representing Marxism-Leninism adapted to Chinese circumstances and specific time periods. Marxism–Leninism is a political philosophy based on the ideas of orthodox Marxism and Leninism that seeks to establish a socialist state and develop it further into socialism and then communism, a classless social system with common ownership of the means of production and with full social equality of all members of society.
Following the Revolution of 1911, the Republic of china adopted a largely Western style legal code reflecting the influence of Continental European legal systems, especially the German civil law system in the 19th and early 20th centuries. However it also contains substantial elements borrowed from the Soviet Union. Unlike the legal systems of Continental Europe, Chinese law does not trace its roots to the private law system of Rome or to any religious basis. Instead, traditional Chinese law centered on state concerns dealt with private matters incidentally.
The development of the current legal system dates from the late 1970s, after the end of the Cultural Revolution. Law of the People's Republic of China, officially referred to as the Socialist legal system with Chinese characteristics, is the legal regime of China, with the separate legal traditions and systems of Mainland China, Hong Kong, and Macau. Hong Kong still retains the common law system inherited as a former British colony, and Macau employs a legal system based on that of Portuguese civil law.[6] This is part of the One Country, Two Systems theory. They have their own courts of final appeal and extradition policies. As such, respectively, they are not within the jurisdiction of the court system within China, which is only effective within mainland China, but their respective Basic Laws are subject to interpretation by the Standing Committee of the National People's Congress.
Confucian and Legalism
The two major Chinese philosophical schools Confucianism and Legalism, strongly influenced the idea of law in China.
Confucian
The Confucian school held that human behavior was subject to formation and reformation through the education process Under Confucianism, the state should lead the people with virtue and thus create a sense of shame which will prevent bad conduct.
Confucianism is one of the most influential philosophical foundations of the Chinese legal system. Developed by Confucius (551-479 BC) and his disciple Mencius (372-289 BC)
Han Dynasty (206BC -220 AD), Confucianism was the principle basis of governance. Indeed, until the end of Qing dynasty in 1911, Confucianism continued to exert influence on the state.
A central notion in the Confucian teachings is that an individual should be guided by virtue or propriety (li) rather than by the law (fa). That is, Confucianism represents a body of ethical standards. Peace and order are central to good life according to Confucianism.
Emphasis on Virtue: Confucianism emphasized that li represents positive measures for preventing crime and maintaining social order, while fa serves as a measure of punishment that only encourages people to evade the law rather than to do what is right.
Emphasis on duties and obligations of people rather than their individual rights. Emphasis on the interests of groups (family, clan, or community) rather than the rights/interests of an individual. Social ills and pains can be avoided by fulfilling own's duties in life by people and their rulers.
Complete obedience and loyalty of the inferior (subjects, children or women) to the superior (rulers, parents or men) and benevolence of the superior to the inferior.
Emphasis on the amicable resolution of disputes with state arbitration. Confucianism viewed state arbitrating civil disputes as an evidence of failure of good faith negotiation between the parties, which inevitably results into state's arbitrary justice.
Legalism
Under Legalism, law is to be publicly promulgated standards of conduct backed by state coercion.
Advocates rewards and punishments to keep peace and order. Punishments were necessary to control men, who are essentially evil and selfish. Introduced the concept of equal duty. Everyone is bound equally by law and thus, punishment. Law also serve, according to Legalism, institutional continuity and in making the state stronger than social groups.
Promulgation of positive law was, thus, central to Legalism. Legalists sought to control the people by introducing and enforcing positive law. Legalists kept rulers (makers of law) above the law. Thus, instead of rule of law (fazhi) Legalists advocated rule of men (renzhi).
Confucianism relies on tradition and rests upon the belief that human beings are fundamentally good, and teachable, improvable, and perfectible through personal and communal endeavor, especially self-cultivation and self-creation. Confucian thought focuses on the cultivation of virtue in a morally organized world. While Legalism makes standard law that even the emperor should be bound by. The common factor is that both endorse to different degrees a paternalistic conception of the state, which knows better than its citizens and makes laws to protect them. This concept persisted throughout the imperial period, into the republican period, and can still be seen acting today.
Evolution of Chinese Law
The development of Chinese law can be categorized into two parts:
a. Traditional Chinese Law (Prior to the foundation of People’s Republic of China in 1949)
b. Modern Chinese Law
Traditional Chinese Law (Legal System of Imperial China)
The significant influence of the Legalist tradition in Chinese law has historically been overlooked. Although the Confucian ideology provided the fundamentals for the substance of the traditional law, the legalist school constructed the important framework of the traditional legal system.
After two centuries of Confucius’s, in 221 B.C. Ying Zheng, ruler of the state of Qin established the first centralized and unified state named China. The Qin emperors had implemented strict laws and extremely harsh punishment for insignificant crimes without giving attention to the mititgating factors of the crime.
Qin dynasty was replaced by the Han dynasty. The Han dynasty (206 BCE-CE 220) retained the basic legal system established under the Qin but modified some of the harsher aspects in line with the Confucian philosophy of social control based on ethical and moral persuasion. Most legal professionals were not lawyers but generalists trained in philosophy and literature. This dynasty stressed over a harmonious relationship between ruler and subject. The Han dynasty formally recognized four sources of law: lü (codified laws), ling (the emperor’s order), ke (statutes inherited from previous dynasties) and bi (precedents) among which ling had a highest binding power over the other three. Most legal professionals were not lawyers but generalists trained in philosophy and literature. The local, classically trained, Confucian gentry played a crucial role as arbiters and handled all but the most serious local disputes.
Han dynasty was followed by the Tang dynasty (618-907 CE). In this era Chinese legal culture reached to a new peak and was influenced by the trend of codification of laws. The codification of law was largely completed by the Tang Code of CE 624, throughout the centuries the Confucian foundations of the Tang Code were retained, and indeed with some aspects of it strengthened by the later dynasties.
During the Qing dynasty, criminal justice was based on extremely detailed Great Qing Legal Code. This code covered every part of social and political life, especially family and ritual, but also foreign relations and even relations of earthly life with the cosmos. One element of the traditional Chinese criminal justice system is the notion that criminal law has a moral purpose, one of which is to get the convicted to repent and see the error of his ways. In the traditional Chinese legal system, a person could not be convicted of a crime unless he had confessed.
The spirit of traditional Chinese law can be summarized as (1) humanism; (2) moral enlightenment and prudent punishment; (3) law of nature (the Tao follows nature); (4) the rule of law; and (5) avoidance of litigation. These influences can also be seen in contemporary China or Chinese law.
Modern Chinese Law (Legal System of Modern China)
China’s modern system of law combines a number of legal traditions, including features of the civil law tradition, substantial elements borrowed from the socialist law system of the former Soviet Union and the principles inherited from imperial Chinese law.
The introduction and translation of Western legal texts into Chinese is believed to have been started under the auspices of Lin Zexu in 1839. More systematic introduction of Western law together with other Western sciences started with the establishment of Tongwen Guan in 1862. The major efforts in translation of Western law that continued until the 1920s prepared the building blocks for modern Chinese legal language and Chinese law. Legal translation was very important from 1896 to 1936 during which period the Chinese absorbed and codified their version of Western laws. These efforts were assisted by the medium of the Japanese legal language and law developed in Japan during the Meiji period which involved in large part Japanese translation of European Continental laws.
In the late Qing dynasty there was a concerted effort to establish legal codes based on European models. Because of the German victory in the Franco-Prussian War and because Japan was used as the model for political and legal reform, the law codes which were adopted were modeled closely after that of Germany.
Attitudes toward the traditional Chinese legal system changed markedly in the late-20th century. Most Chinese and Westerners of the early 20th century regarded the traditional Chinese legal system as backward and barbaric .It became apparent that some aspects of the legal system that some aspects of the legal system, such as harshness of criminal procedure and lack of commercial law rendered China’s law primitive in comparison to legal system of other nations.
In 1904, one initiative stated in 1904 was the creation of a Law reform bureau related with the task of translating foreign codes and drafting new laws. And another was the promulgation of an Imperial constitutional Outline in 1908.However, before any drafted laws are implemented, in 1911 the Qing Empire was overthrown.
The Communist party of China (CPC) was established on July 1, 1921. After its establishment, a politically tumultuous period referred to as the “” New Democratic Revolution” encompassed three more struggles that CPC engage in i.e.
a. The Second Revolutionary War (1927-37)
b. The War of Resistance against Japan (1937-45)
c. Revolutionary Civil War (1945-49)
These movements leads to the modernization to the Chinese Legal System which was emphasized on the transformation of traditional to modern Chinese legal system. The modern Chinese Legal System are classified into:
1. Law of Republic of China
Law in the Republic of China (Taiwan) is mainly a civil law system. The legal structure is codified into the Six Codes: the Constitution 9 the constitution of Republic of China,1947), the Civil Code, the Code of Civil Procedures, the Criminal Code, the Code of Criminal Procedures and in Administrative Laws.
This legal system is based on the presidential form of government. The court structure was classified as district court, High Court, Supreme Court, Administrative Court and Specialized court.
2. People’s Republic of China in 1949 (PRC)
When the Chinese Communist Party seized power in the main land China and declared the establishment of PRC in 1949, all the Kuomintang legislations were abolished with the stroke of a pen for being recreationary and bourgeois in spirit. Apart from a law of marriage in 1950, for many years, nothing was put in its place. The Kuomintang laws went with the Kuominting government to the island of Formosa. The communist party of Chin in the name of creation of a distinctly Chinese and socialist legal system embarked upon very different model than soviet Union and pro Soviet eastern European socialist countries. In fact, the development of law, in post revolutionary china, was fraught with many upheavals. In comparison to Soviet Union and other European socialist countries, where the pace of legislation was substantial and the society was controlled by means of law. The PRC had a provisional constitution from its inception until the enactment of its first constitution in 1954which was highly influenced by USSR practice. This constitution was replaced with the promulgation of 2nd constitution in !1975 which was followed by the constitution of republic of China, 1978. Mainly, since 1979, more than 300 laws and regulations has promulgated in the area of economy.
The Chinese leadership, which came into power after the Cultural Revolution, decided to modernize China by using the methods of market economy, private enterprises and foreign direct investment. For all this they need functioning legal system, however, to re-establish the legal system was a very difficult task. It had to begin from the scratch again, due to destruction of Cultural Revolution, however the re-establishment of ministry of justice in 1979, quite remarkably a horde of legislation were adopted e.g. general principles of civil law, civil prosecution law, criminal law, criminal prosecution law, patent law, contract law, trademark law, foreign contract law, etc to create a favorable legal climate for foreigners to invest and work in China.
The most important codification, after the Cultural revolution, is civil law, which came into force in Jan 1987 which is known as China’s Civil Code but its official name is the General Rules of Civil Law. It has only 156 Articles and 9 Chapters.
The general rules of civil law and civil procedure law is the first systematic civil legislation, since the founding of the PRC. All these legislations, since the modernization process began in 1980, reflects that PRC’s desire to create a solid legal infrastructure for its economic development.
Structure of Government of People’s Republic China
a. Legislative Branch: The National People's Congress and its Standing Committee exercise the legislative power of the state. The National People's Congress is composed of deputies elected from the provinces, autonomous regions, municipalities directly under the Central Government, and the special administrative regions, and of deputies elected from the armed forces. All the minority nationalities are entitled to appropriate representation.
Election of deputies to the National People's Congress is conducted by the Standing Committee of the National People's Congress. The number of deputies to the National People's Congress and the procedure of their election are prescribed by law. The National People's Congress is elected for a term of five years. The Standing Committee of the National People's Congress must ensure the completion of election of deputies to the succeeding National People's Congress two months prior to the expiration of the term of office of the current National People's Congress. Should extraordinary circumstances prevent such an election, it may be postponed and the term of office of the current National People's Congress extended by the decision of a vote of more than two-thirds of all those on the Standing Committee of the current National People's Congress. The election of deputies to the succeeding National People's Congress must be completed within one year after the termination of such extraordinary circumstances.
b. Executive Branch: The State Council, that is, the Central People's Government of the People's Republic of China, is the executive body of the highest organ of state power; it is the highest organ of state administration. The State Council is composed of the following: the Premier; the Vice Premiers; the State Councilors; the Ministers in charge of ministries; the Ministers in charge of commissions; the Auditor General; and the Secretary General. The Premier assumes overall responsibility for the work of the State Council. The Ministers assume overall responsibility for the work of the ministries and commissions. The organization of the State Council is prescribed by law. The term of office of the State Council is the same as that of the National People's Congress.
c. Judiciary: Judiciary is the law interpreting body of the government of china. The judicial branch is one of the three branches of govt. in the People’s Republic of China. It refers to the activities of the People’s court system. The Chinese court system is based on civil law. The people's courts in the People's Republic of China are the judicial organs of the state.
The People's Republic of China establishes the Supreme People's Court and the people's courts at various local levels, military courts and other special people's courts. The term of office of the President of the Supreme People's Court is the same as that of the National People's Congress. The President shall serve no more than two consecutive terms. The organization of the people's courts is prescribed by law. Trial to be public, right to defense Except in special circumstances as specified by law, all cases in the people's courts are heard in public. The accused has the right to defense. The people's courts exercise judicial power independently, in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individual.
Court structure
The courts in China are referred as people’s court after the founding of PRC. The people’ courts of China re the judicial institution, exercising judicial power on behalf of state. According to the constitution and the organic law of the people’s courts are organized in a system of four levels and two trials .The system of people’s court consist of:
1. Supreme people’s court
2. Local people’s court
3. Military courts
4. Special people’s court
1. The Supreme People's Court: It is the highest judicial organ. The Supreme People's Court supervises the administration of justice by the people's courts at various local levels and by the special people's courts. People's courts at higher levels supervise the administration of justice by those at lower levels. The president of Supreme Court is elected by National People’s congress for a term of 5 years, renewable for 2 consecutive terms only. The other judges are also appointed and dismissed by NPC.
2. Local People’s court: Divided into three levels higher, intermediate and primary people’s court.
Higher people’s court: It gives preliminary hearings to major civilian and criminal case of province, regions or a municipality directly under the central government.
Intermediate People’s court: It has first instance jurisdiction in certain cases e.g hears counter revolution crimes, case involving death penalty, imprisonment and case against the Chinese violating the legitimate rights and interest of foreigners.
Primary People’s court: Refers to court of a county, autonomous county, city or district under a municipality. It deals with the civil and common criminal cases. It may establish a number of sub-people’s courts. There are précising judges and deputies in the primary people’s court. The judges are elected by the local people’s congress and can be dismissed by the standing committee of the local people’s congress.
3. Military court: The military courts are established by the army called people’s liberation army to hear criminal cases involving military personnel. The Supreme Court has the right to supervise the administration of justice by the military court.
4. The special people’s court: The special people’s court handles cases of special type i.e the railway and transport court handles the disputes relating to railway and transportation.
Sources of Chinese Law:
The following are the major sources of chines law:
a) The constitution of peoples republic of china
The constitution of People’s Republic of China is viewed as the supreme source of Law of the china. The constitution establishes the framework of the government in addition to codifying the general principle of government and society and listing the fundamental rights and duties of the people of china. Three prior constitution from 1954, 1975and 1978 partially contribute to composition of the current constitution. The constitution gives guidelines for other laws.
b) NPC Statutory Law and Other Legislative Enactments
This is the another source of law which is to have general impact is enacted by the NPC or its standing committee. The Standing committee also enacts regulations, decisions, and resolutions. Administrative regulations are one type of legislative enactment by the state council. The state council and its ministers or commissions can also make rules. At the local level the people’s congress can enact local regulations and the local people’s governments can make local administrative rules. With regards to the national autonomous regions, they are permitted to enact autonomy regulations and specific regulations. A novel concept, the basic law, developed for dealing with the specific areas such as Hongkong which had a legal system of its own prior to its return to china. In these areas known as socialist Administrative Regions, the basic law of the former system is maintained as long is mainland as long the laws comport with the PRC constitution.
c) International Treaties:
This is also regarded as the source of Chinese Law. The 1982 constitution does not specify the treatment of international law in relation to the laws of PRC. However, in practice the legislative approach has been to automatically incorporate international law as part of PRC law. If however the PRC has made a reservation to a provision of a treaty this aspect or provision of the treaty is not implemented in the law.
d) Case Law:
Unlike common law jurisdiction such as the England and United States there is no strict precedential concept of case law. In theory, each case stands as its own decision and will not bind another court. However, in practice lower people’s court judges often attempt to follow the interpretations of the laws decided by the supreme people’s court. Moreover, higher courts can use the finality of their judgments on appeals as having a binding effect on the lower court that issued the first judgment or order but this source of law is not regarded as the primary sources of law.
Legal Profession and Legal Education in China:
There is no longer history in China regarding the legal profession in China. Up to 1960s there was no formal education in china. Law faculties were opened at the end of the 1970s. In 1980, the first regulation on the practice of law was promulgated and all china lawyers Association was established and uniform qualifying examination was introduced in 1986. A graduate from a law university having at least two years of legal work experience are eligible to take a bar examination offered two times in a year.
Non law degree also is regarded is also regarded for the basis for being a lawyer who have three years of experience in legal sector as prosecutor. They can give the exam of bar. After 2002, any person who wants to work as a judge, prosecutor or lawyer has to pass the unified state judicial Examination (SJE) to obtain a certificate of legal profession.
The study of law in China consists of a three year program at a university or a department at present, legal education is available in China through five types of institution.
The lowest level is politics and law schools, and Justice Schools which offers courses at secondary level. The second one is vocational politics and law schools and vocational politics and law management training institute which offers post-secondary diploma. The third one is politics and laws and politics and law universities offering diploma and master’s degree. The fourth type is law faculties with in comprehensive universities. The fifth type in a range of self-study programs.
Conclusion:
Nevertheless, as there is a little consolidated culture of law in China, there are serious difficulties in implementation of the rule of law. While China has entered in the globalization process in 2001 being a member of WTO, it is still strict in communism. Still there is the fusion of traditional Chinese law and modern chines law in practice China’s Legislature at the various Levels have promulgated vast bodies of codified law. These laws are often not implemented. Similarly, seeking resources through law courts will often simply refuse to take up a difficult case. Judges are too often amendable to bribery to political pressure in their rulings. The judiciary is accountable to the NPC where there is no space for independence judiciary and the civil liberty to the people.
Refrences
1. The Constitution of People’s Republic of China, 1982
2. ‘Chinese Law’ (en. Wikipedia 4 December, 2019) < https://en.wikipedia.org/wiki/Chinese_law> accessed 8 December 2019.
3. Yi Gong Lu, ‘Chinese Legal Tradition and its Modernization’ (2009) LEWI HKBU 1.
4. A. Chen, ‘An Introduction to the Legal System of the People’s Republic of China’(2004).
5. Tripathie Rewati Raj, Nepalese Legal System, A Jurisprudential and Comparative Ppraisal (Lumbini Prakashan 2073).
6. Prof K.C. Yadav Kumar and Poudel Bibek Kumar, Major Legal System (1st edn, MM Publication 2017)
7. L. Chang-Fa, ‘The Legal Culture and System of Taiwan’ (2006),2.
8. Jingjing Liu, ‘Overview of the Chinese Legal System’ (2013) 1 ELR 1.
9. Kuikel Sachita, ‘Chinese Legal System,’(2015)
[1] ‘Chinese Law’ (en. Wikipedia 4 December, 2019) < https://en.wikipedia.org/wiki/Chinese_law> accessed 8 December 2019.
[2] ‘Chinese Law’ (en. Wikipedia 4 December, 2019) < https://en.wikipedia.org/wiki/Chinese_law> accessed 8 December 2019.
[3] Yi Gong Lu, ‘Chinese Legal Tradition and its Modernization’ (2009) LEWI HKBU 1.
[4] A. Chen, ‘An Introduction to the Legal System of the People’s Republic of China’(2004).
[5] ‘Law of the People’s Republic of China’ (en. Wikipedia 4 December, 2019)<https://en.wikipedia.org/wiki/Law_of_the_People%27s_Republic_of_China> accessed 8 December 2019.
[6]ibid
[7] ibid
[8] Rewati Raj Tripathie, Nepalese Legal System, A Jurisprudential and Comparative Ppraisal (Lumbini Prakashan 2073).
[9] ibid
[10] ‘Legal History of China’ (en. Wikipedia 4 December, 2019)<https://en.wikipedia.org/wiki/Legal_history_of_China> accessed 8 December 2019.
[11] Jingjing Liu, ‘Overview of the Chinese Legal System’ (2013) 1 ELR 1.
[12] ‘Chinese Law’ (en. Wikipedia 4 December, 2019) < https://en.wikipedia.org/wiki/Chinese_law> accessed 8 December 2019.
[13] L. Chang-Fa, ‘The Legal Culture and System of Taiwan’ (2006),2.
[14] The Constitution of the Republic of China [1947],Article 35-52
[15] The Constitution of the Republic of China [1947],Article 77-82
[16] Prof Yadav Kumar K.C. and Bibek Kumar Poudel, Major Legal System (1st edn, MM Publication 2017)
[17] The Constitution of People’s Republic of China, Article 57
[18] The Constitution of People’s Republic of China, Article 60
[19] The Constitution of People’s Republic of China, Article 80-81
[20] Prof Yadav Kumar K.C. and Bibek Kumar Poudel, Major Legal System (1st edn, MM Publication 2017)