Chinese law
Encyclopedia
Chinese law is one of the oldest legal traditions in the world. In the 20th and 21st century, law in China has been a complex mix of traditional Chinese approaches
and Western influences
.
For most of the history of China
, its legal system has been based on the Confucian philosophy
of social control through moral education, as well as the Legalist emphasis on codified law
and criminal sanction
. Following the Revolution of 1911, the Republic of China
adopted a largely Western-style legal code in the civil law
tradition (specifically German-influenced). The establishment of the People's Republic of China in 1949 brought with it a more Soviet-influenced system of socialist law. However, earlier traditions from Chinese history have retained their influence, even to the present.
Law in the People's Republic of China is currently undergoing gradual reform, as many elements inside and outside the country emphasize the need to strengthen the rule of law
in China, and international trade and globalization spur transformations in various areas of Chinese domestic law.
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 yi (義: "social rightness"). Yan Fu
, in his Chinese translation of Montesquieu's De l'esprit des lois published in 1913, warned his readers about the difference between the Chinese fǎ and Western law: "The word 'law' in Western languages has four different interpretations i "rites", "decorum"), fǎ (法: "human laws") and zhì (制: "control").
A term which preceded fǎ was xíng (刑), which originally probably referred to decapitation
. Xíng later evolved to be a general term for laws that related to criminal punishment. The early history Shang Shu recorded the earliest forms of the "five penalties": tattoo
ing, disfigurement
, castration
, mutilation
, and death
. Once written law came into existence, the meaning of xíng was extended to include not only punishments but also any state prohibitions whose violation would result in punishments. In modern times, xíng may be understood in the sense of penal law
or criminal law
. An example of the classical use of xíng is xíng bu (刑部: "Department of Punishment") for the legal or justice department in imperial China.
The two major Chinese philosophical schools discussed below, Confucianism and Legalism, strongly influenced the idea of law in China. Briefly, under Confucianism, the state should lead the people with virtue and thus create a sense of shame which will prevent bad conduct. Under Legalism, law is to be publicly promulgated standards of conduct backed by state coercion. The tension between these two systems is that Confucianism relies on tradition to make the leader the head of household of all China 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.
Unlike many other major civilization
s where written law was held in honor and often attributed to divine origin, law in early China was viewed in purely secular terms and its initial appearance was greeted with hostility by Confucian thinkers as indicative of a serious moral decline, a violation of human morality, and even a disturbance of the total cosmic order. Historically, the people's awareness and acceptance of ethical norms was shaped far more by the pervasive influence of custom and usage of property and by inculcating moral precepts than by any formally enacted system of law. Early emperors however embraced the Legalist ideal as a way of exerting control over their large and growing territory and population. This process was integrated with traditional Chinese beliefs in the cosmic order, holding that correct behavior was behavior consonant with the appropriate responses set by fǎ. Xíng states the potential costs to the individual of exceeding them and imposes penalties for these actions.
The imperial period was characterized mainly by the concept of law as serving the state, a means of exerting control over the citizenry. In the late Qing dynasty there were efforts to reform the law codes mainly by importing German codes with slight modifications. This effort continued and was amplified in the republican period resulting in the Provisional Constitution of 1912 which included the idea of equality under the law, rights for women, and broader rights for citizens vis-à-vis the government. The onset of the communist period at first rolled back the development of individual rights with the primary concept of law returning to that of a tool of the state. After the Cultural Revolution devastated the ranks of intellectuals and legal professionals, it took until 1982 for the idea of individual rights to reemerge as a significant influence on Chinese law.
The current constitution, created in 1982, states in Article V that no organization or individual is above the law and in Article III makes the People’s Congresses and state administration responsible to the people, paving the way for later efforts to allow enforcement of individual rights. Passage of the Administrative Litigation Law of 1987 created legal recourse for individuals from arbitrary government action, an avenue previously unavailable. Despite the deep-seated norm against legal proceedings, litigation in the Chinese courts has increased dramatically, especially in recent years. The continuing weakness of courts resulting from their dependence on the local government for financial support and enforcement undermines the effectiveness of these remedies but this has also begun to change with China’s initiatives to increase legal training and the professionalism of the judiciary. One avenue of individual appeal from government action which continues to be important is the custom of xinfang or petitions by citizens to the individuals officials for change. The continuing wide use of xinfang reflects the fact that many officials are still able to avoid legal sanctions and the underlying avoidance of the legal system, as well as the personal ability of officials to personally intervene to change unjust results. Recently xinfang has been institutionalized to some extent with the central government mandating that every level of administration establish a xinfang office to handle petitions and report them up to high levels. This solution by exertion of personal power clearly goes against the idea of rule of law, and worse, some scholars have noted that xinfang today functions more as an informational collection system for the government than an effective review mechanism.
and Legalism are two major Classical legal theories or philosophies developed during the Spring and Autumn period and the Warring States period, a time that saw the most impressive proliferation of new ideas and philosophies in Chinese history. While both theories call for governmental hierarchy, they differ drastically in their views of human potential and the preferred means to achieve political order. Nevertheless, both theories have influenced and continue to influence the development of cultural, social, and legal norms in China.
The basic premise of Confucianism is the idea that human beings are fundamentally good. With this optimistic view on human potential, Confucius advocates for ruling through li – traditional customs, mores, and norms – which allow people to have a sense of shame and become humane people with good character, rather than through government regulations and penal law. The idea is that people will internalize the acceptable norms and only take proper actions. This will not only lead to a harmonious social order, but it will also provide the additional benefit of improving an individual’s inner character and the overall quality of the society. In contrast, codified laws require external compliance, and people may abide by the laws without fully understanding the reason for compliance. As such, a social order achieved through formal laws does not come with the additional benefit of better citizenry. It is worth noting, however, that even Confucius did not advocate for the elimination of formal laws. Rather, according to Confucius, laws should be used minimally and reserved only for those that insist on pursuing one’s self-interests without taking into account the well being of the society.
As Confucius rejects the general use of formal laws to achieve social order, what lies vital to Confucius’ theory is the willing participation by citizens of the society to search for commonly accepted, cooperative solutions. In addition to willing participation of citizens, there must also be grounds or bases upon which commonly acceptable solutions can be arrived at - the concept known as li. Li is commonly understood as a set of culturally and socially valued norms that provide guidance to proper behaviors that will ultimately lead to a harmonious society. These norms are not fixed or unchangeable over time but rather a reflection of what is accepted at a particular time in a particular context. When conflicts arise, the li have to be applied and interpreted to produce a just result and restore the harmony of the society. However, in the absence of any procedural safeguard afforded by codified laws, interpretation of li is subject to abuse.
Recognizing that people in a society hold diverse interests, Confucius charges the ruler with the responsibility to unify these interests and maintain social order. This is not done by dictatorship but by setting an example. Therefore, a ruler needs not to force his people to behave properly. Instead, the ruler needs only to make himself respectful, and the people will be induced and enlightened by his superior virtues to follow his example – an ideal known as wuwei. Nevertheless, the ruler must know and understand the li to be able to create solutions to conflict and problems the society faces. As the people are to follow the moral standards and example set by the ruler, to a large extent, the quality of the ruler determines the quality of the political order.
In contrast to Confucius’ li-based theory, the Legalism advocates the utilization of codified laws and harsh punishment to achieve social order. This is due to the legalists’ belief that all human beings are born evil and self-interested. Therefore, if left unrestrained, people would engage in selfish behavior which will undoubtedly lead to social unrest. To cure this defect and force people to behave morally, the only way, believed the legalists, is to publicly promulgate clearly written laws and impose harsh punishments.
Realizing that the abilities of rulers are often limited and that reliance on the ruler’s ability and judgment often leads to adverse results, the legalists designed a system in which the law is run by the state, not the ruler. This ensures that the laws will be applied impartially without the interference of personal bias of the ruler or ones who are responsible for applying the laws. It also makes it irrelevant whether the ruler has superior abilities. This non-action promoted by the legalists is their understanding of the concept of wuwei, which is different from the Confucians’ understanding of the same concept. Notwithstanding such an understanding, the ruler, like in Confucianism, has the ultimate authority to decide what the law should be. Therefore, like Confucianism, Legalism is subject to abuse as well. In fact, the Qin emperor implemented strict laws and extremely harsh punishments without taking into account mitigating circumstances even for insignificant crimes. For example, books were burned and people holding different ideals were buried alive. While the Qin emperor successfully instilled fear and respect for law into the minds of his people, the harshness of the law led to his quick demise after only 14 years of reigning over China.
In summary, although both Confucianism and Legalism were developed in a period of turmoil and both were aimed at the re-unification of the country, the two theories went opposite directions with one advocating for and one against the use of formal laws to achieve social order. What the two theories have in common is their concession of the ultimate authority to the ruler, who remained above and beyond the li or law. It is true that neither theory is ideal in achieving a social order. Nevertheless, both theories have had a significant impact on the cultural and legal development in China, and their influence remains visible today.
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 traditional law, the Legalist school constructed the important framework of the traditional legal system. The Han dynasty
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.
The Han dynasty formally recognized four sources of law: lü (律: "codified laws"), ling (令: "the emperor's order"), ke (科: "statutes inherited from previous dynasties") and bi (比: "precedents"), among which ling has the 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.
Eventually, the incorporation of the essentials of Confucianist li into legal codes occurred with this Confucian conception dominating ancient Chinese law. Ch'ü concludes that the gradual process of Confucianisation of law was the most significant development in the legal system of China prior to 20th century modernization. The line between ruling by moral influence and ruling by punishment was not always clearly delineated. For example, li could be enforced by moral influence and legal means. The metamorphosis of li into law depended on its widespread and unvaried acceptance by society.
Although 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.
The Confucian notion that morality and self-discipline was more important than legal codes caused many historians, such as Max Weber
, until the mid-20th century to conclude that law was not an important part of Imperial Chinese society. This notion, however, has come under extreme criticism and is no longer the conventional wisdom among Sinologists, who have concluded that Imperial China had an elaborate system of both criminal and civil law which was comparable to anything found in Europe.
During the Qing dynasty, criminal justice was based on extremely detailed Great Qing Legal Code
. 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 has confessed. This often led to the use of torture
, in order to extract the necessary confession. These elements still influence modern Chinese views toward law. All capital offenses
were reported to the capital and required the personal approval of the emperor.
There was no civil code
separate from the criminal code
, which led to the now discredited belief that traditional Chinese law had no civil law. More recent studies have demonstrated that most of the magistrates' legal work was in civil disputes, and that there was an elaborate system of civil law
which used the criminal code to establish torts.
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. However, extensive research into China's traditional legal system has caused attitudes to become more favorable in the late-20th and early 21st centuries. Researchers of the early and mid-20th century tended to compare the traditional Chinese legal system to then contemporary systems, finding the former to be backward. However, more recent research compared the 18th century Chinese legal system to European systems of the 18th century, resulting in a far more positive view of traditional Chinese law.
The Department of Punishment was changed to fa bu (法部: "Department of Law") in the early 1900s legal reforms.
(Taiwan
) is mainly a civil law system. The legal structure is codified into the Six Codes
: the Constitution, the Civil Code, the Code of Civil Procedures, the Criminal Code, the Code of Criminal Procedures and in Administrative laws.
in 1949, the People's Republic of China quickly abolished the ROC's legal codes and attempted to create a system of socialist law
copied from the Soviet Union
. With the Sino-Soviet split
and the Cultural Revolution
, all legal work was suspected of being counter-revolutionary, and the legal system completely collapsed.
Over the past century, there have been numerous constitutions in China. The first attempts towards implementing a constitution in China were made during the final decade of the Qing Dynasty. Several constitutions were subsequently promulgated by various controlling groups between that time and the establishment of the PRC. The PRC had a provisional constitution from its inception until the enactment of its first constitution in 1954. This initial constitution was based on the constitution of the Soviet Union. It was shortly ignored, however, and became without legal force. Although it provided that the National People’s Congress (NPC) would be elected every four years as the highest state power, these guidelines were not adhered to. The second constitution of the PRC was modeled on the ideology of the Cultural Revolution and promulgated in 1975. This constitution subjected the NPC to the Communist Party and removed previous constitutional protections such as equality under the law and private property succession rights. It was also immediately disregarded through breaches of its provisions and in-adherence to guidelines regarding the NPC. The third constitution of the PRC was adopted in 1978. Although this version moved away from the ideologies of the Cultural Revolution, it did retain some remnants of it. It also retained Communist Party control over the state structure. However, reformists subsequently gained power, which lead to the breakdown of this constitution as focus shifted to economic construction and modernization.
With the start of the Deng Xiaoping
reforms, the need for reconstructing a legal system to restrain abuses of official authority and revolutionary excesses was seen. In 1982, the National People's Congress
adopted a new state constitution
that emphasized the rule of law under which even party leaders are theoretically held accountable. This reconstruction was done in piece-meal fashion. Typically, temporary or local regulations would be established and after a few years of experimentation, conflicting regulations and laws would be standardized.
The current Constitution of the PRC was enacted in 1982 and reflects the model of the first PRC constitution. The Constitution provides that leadership is through the working class, which in turn is led by the Communist Party. This Constitution also contains more extensive rights than any of the previous constitutions. The rights include equality before the law, political rights, religious freedom, personal freedom, social and economic rights, cultural and educational rights, and familial rights. These rights, however, are connected to social duties. The duties include safeguarding the unity, security, honor, and interests of the country, observing law and social ethics, paying taxes, and serving in the military. Neither the rights nor duties provided for in the Constitution are exhaustive.
The Constitution provides that the NPC is the supreme organ of state power over a structure of other people’s congresses at various levels. The NPC has power to amend the Constitution by a two-thirds majority, promulgate legislation, elect and remove highest-level officials, determine the budget, and control economic and social development planning. The NPC also includes a Standing Committee that functions much as the NPC does when the NPC is not in session. Although the Standing Committee has had some powers since 1955, its law-making powers were initially provided for in the 1982 Constitution. The NPC sits at the highest level in the hierarchy of governmental structure in the PRC. This national level is followed in descending order by the provincial level (including autonomous regions and municipalities directly under the national level), the prefectural level, the county level, and the townships and towns level. Government members at the lower two levels are directly elected, and those at the higher levels are elected by the lower levels. In addition to the NPC, the provincial people’s congresses possesses legislative power and can pass laws so long as they do not contravene the Constitution or higher legislation or administrative regulations.
The Constitution states its own supremacy. However, it has been theorized that the supremacy of the Communist Party means that the Constitution and law are not supreme, and that this perspective is the result of the Marxist view of law as simply a superstructure combined with a lack of recognition of rule of law in philosophical or historical tradition. Although the Constitution provides for legislative, executive, judicial, and pro-curatorial powers, they are all still subject to Communist Party leadership. Often, important political decisions are made through actions which are not regulated by the Constitution. Additionally, courts may not rely on the Constitution in deciding cases, and they may not review legislation for Constitutionality. Nonetheless the Constitution does provide the linguistic framework for conducting government affairs and describing them in the media.
Since 1979, when the drive to establish a functioning legal system began, more than 300 laws and regulations, most of them in the economic area, have been promulgated. The use of mediation committees, informed groups of citizens who resolve about 90% of the PRC's civil disputes and some minor criminal cases at no cost to the parties, is one innovative device. There are more than 800,000 such committees in both rural
and urban areas.
In drafting the new laws, the PRC has declined to copy any other legal system wholesale, and the general pattern has been to issue laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more precedental value than in most civil law
jurisdiction. In formulating laws, the PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the Republic of China
on Taiwan
, and the English-based common law
used in Hong Kong.
Legal reform became a government priority in the 1990s. The Chinese government has promoted a reform it often calls "legalisation" (法制化). Legalisation, among other things, has provided the regime with a gloss of legitimacy and has enhanced predictability. There have been major efforts in the rationalization and strengthening of the legal structure and institution building in terms of developing and improving the professionalism of the legislature, judiciary and legal profession. As market reforms have deepened and social inequality has widened, legal forums - ranging from mediation
and arbitration
commissions to courts - have come to play an increasingly prominent role.
The 1994 Administrative Procedure Law allows citizens to sue officials for abuse of authority or malfeasance. In addition, the criminal law
and the criminal procedures laws were amended to introduce significant reforms. The criminal law amendments abolished the crime of "counter- revolutionary" activity. However political dissidents are sometimes charged on the grounds of subverting state security or publishing state secrets. Criminal procedures reforms also encouraged establishment of a more transparent, adversarial trial process. Minor crimes such as prostitution and drug use are sometimes dealt with under re-education through labor laws. The PRC constitution and laws provide for fundamental human rights, including due process, but some have argued that they are often ignored in practice. (See Human rights in the People's Republic of China
.)
The basic principles of Chinese legislative drafting include generality and flexibility. Sometimes excessive generality and omissions in Chinese law, coupled with the wide discretionary powers conferred on local authorities to implement laws, undermines the predictability and certainty of law. Furthermore, as Chinese law is intended to be educative, the language of the law is that of the ordinary language comprehensible to the average citizen, although many laws are drafted in broad and indeterminate language.
As a result of a pending trade war with the United States of America
over violations of intellectual property
rights of American corporations in the early 1990s, the People's Republic of China's trademark law
has been modified and now offers significant protections to foreign trademark owners.
After the transfers of sovereignty, Hong Kong and Macau
continue to practice English Common Law
and Portuguese
legal systems respectively, with their own courts of final appeal
. In other words, Hong Kong and Macau are outside of the legal jurisdiction of the People's Republic of China, except on constitutional issues.
Due to the growing sophistication of Chinese laws, the expansion of the rule of law
, as well as an influx of foreign law firms, China has also begun to develop a legal services market. Foreign lawyers have accompanied foreign capital and their clients to China which has had an immense influence on the promulgation of new Chinese laws based on international norms, especially in regards to intellectual property and corporate and securities law.
On July 1, 1992, in order to meet growing demand, the Chinese government opened the legal services market to foreign law firms allowing them to establish offices in China when the Ministry of Justice and the State Administration of Industry and Commerce (SAOIC) issued the Provisional Regulation of Establishment of Offices by Foreign Law Firms regulation.
As a result, many foreign law firms, including the United States' Baker & McKenzie
and Paul, Weiss, Rifkind, Wharton & Garrison
, along with several British firms, incorporated consulting firms in their home countries or Hong Kong and then set up subsidiaries in Beijing or Shanghai to provide legal services.
However, there still many regulatory barriers to entry to protect the domestic legal industry. Issues relating to Chinese law must be referred to Chinese law firms and foreign lawyers are also prohibited from interpreting or practicing Chinese law nor representing their clients in court. However, in reality many foreign law firms interpret laws and manage litigation by directing the local firms they must have cooperative relationships with. In this regards China's restrictive legal market can be directly tied to a phobia of people asserting their legal rights in the face of rampant corruption. Information received from the State Council Legislative Office suggests that China may be allowing foreigners to sit the Chinese Lawyers Examination, or have a mutual recognition treaty with other countries to allow foreign lawyers to conduct non-litigation Chinese legal work.
While the trend in China’s legal landscape is to continue to open up the legal market, China’s laws and regulations have helped develop a number of domestic Chinese firms to specializing to meet demand of a booming economy. According to Asia Law and Business magazine China Awards, the top China firms were King & Wood PRC Lawyers, Commerce & Finance Law Offices, Fangda Partners, Haiwen & Partners, Jun He Law Offices
and Lehman, Lee & Xu
.
in 1864, in his translation of Henry Wheaton's Elements of International Law.
", there is a widely misconceiving that mixed "rule by law" with fǎzhì. The related concepts of yi fa zhi guo (以法治国: "governing the nation in accordance with law") and jianshe shehui zhuyi fazhi guojia (建设社会主义法制国家: "building a socialist rule of law state") have been part of the Chinese Communist Party's official policy since the mid-1990s. In 1999, the NPC adopted an amendment to the Chinese Constitution, incorporating both concepts in Article 5.
The existence of the rule of law in China has been widely debated. There are differing theories of the rule of law. One theory is the "thin", or formal, theory of rule of law, and the other is the "thick" theory.
The "thin" theory of rule of law is described by Randall Peerenboom as at the basest level incorporating a legal system that imposes meaningful restraints on the state and individuals in ruling power, that the law is supreme, and that all citizens are equal before the law (Peerenboom, 2). According to Lon Fuller’s account of thin theory, rule of law exists in a society when the laws of that society are “general, public, prospective, clear, consistent, capable of being followed, stable, and enforced” (Peerenboom, 3). The thin theory has also been explained by Joseph Raz as emphasizing the formal or instrumental aspects of a legal system regardless of whether it is part of a particular political structure, i.e. a democratic or non-democratic society.[14] Thick theory rule of law espouses all the elements of thin theory in addition imposes a political, social, and economic concept into the rule of law. The rule of law
is regarded by some as presupposing political or economic structures of liberal democracy
, human rights
and other ideal socio-legal order.[11] Some scholars believe that given China's socialist and non-democratic political system and practice, it is at best regarded as a country of rule by law with law used by the state as an instrument for social control.[12] However, others rely on the formal or thin theory of rule of law to interpret fazhi as a legal reality in China.[13] Additionally, some believe that China may still fall short of the thin theory of rule of law.
Of particular relevance to the second principle set out above, was the enactment of the Administrative Permission Law of the PRC (APL) on 27 August 2003, effective from July 2004. The APL for the first time requires all laws and regulations that subject any civil act to approval requirements to be published.
The APL also provides that only those laws adopted by the National People’s Congress or its Standing Committee, administrative regulations promulgated by the State Council, and local regulations adopted by the local people’s congresses may impose administrative approval requirements. Individual ministries or agencies (central or local) do not have such powers except in specified circumstances. This is consistent with the hierarchy of laws and regulations provided under the Legislative Law of the PRC. The enactment of the APL represents an encouraging step forward.
Despite the newly elevated role of courts in Chinese society, there still remains some consensus about defects in China’s legal system in regards to progressing towards the rule of law. Scholars point to the following defects as slowing movement toward rule of law. These include:
Traditional Chinese law
Traditional Chinese law refers to the laws, regulations and rules used in China up to 1911, when the last imperial dynasty fell. It has undergone continuous development since at least the 11th century BC...
and Western influences
Western law
Western law refers to the legal traditions of Western culture. Western culture has an idea of the importance of law which has its roots in both Roman law and the Bible...
.
For most of the history of China
History of China
Chinese civilization originated in various regional centers along both the Yellow River and the Yangtze River valleys in the Neolithic era, but the Yellow River is said to be the Cradle of Chinese Civilization. With thousands of years of continuous history, China is one of the world's oldest...
, its legal system has been based on the Confucian philosophy
Confucianism
Confucianism is a Chinese ethical and philosophical system developed from the teachings of the Chinese philosopher Confucius . Confucianism originated as an "ethical-sociopolitical teaching" during the Spring and Autumn Period, but later developed metaphysical and cosmological elements in the Han...
of social control through moral education, as well as the Legalist emphasis on codified law
Legal code
A legal code is a body of law written by a governmental body, such as a U.S. state, a Canadian Province or German Bundesland or a municipality...
and criminal sanction
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
. Following the Revolution of 1911, the Republic of China
Republic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
adopted a largely Western-style legal code in the civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
tradition (specifically German-influenced). The establishment of the People's Republic of China in 1949 brought with it a more Soviet-influenced system of socialist law. However, earlier traditions from Chinese history have retained their influence, even to the present.
Law in the People's Republic of China is currently undergoing gradual reform, as many elements inside and outside the country emphasize the need to strengthen the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
in China, and international trade and globalization spur transformations in various areas of Chinese domestic law.
Chinese legal tradition
The word for law in classical ChineseClassical Chinese
Classical Chinese or Literary Chinese is a traditional style of written Chinese based on the grammar and vocabulary of ancient Chinese, making it different from any modern spoken form of Chinese...
was fǎ . The Chinese character
Chinese character
Chinese characters are logograms used in the writing of Chinese and Japanese , less frequently Korean , formerly Vietnamese , or other languages...
for fǎ denotes a meaning of "fair", "straight" and "just", derived from its water radical
Radical (Chinese character)
A Chinese radical is a component of a Chinese character. The term may variously refer to the original semantic element of a character, or to any semantic element, or, loosely, to any element whatever its origin or purpose...
. 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 yi (義: "social rightness"). Yan Fu
Yan Fu
Yan Fu was a Chinese scholar and translator, most famous for introducing western ideas, including Darwin's "natural selection," to China in the late 19th century.-Life:...
, in his Chinese translation of Montesquieu's De l'esprit des lois published in 1913, warned his readers about the difference between the Chinese fǎ and Western law: "The word 'law' in Western languages has four different interpretations i "rites", "decorum"), fǎ (法: "human laws") and zhì (制: "control").
A term which preceded fǎ was xíng (刑), which originally probably referred to decapitation
Decapitation
Decapitation is the separation of the head from the body. Beheading typically refers to the act of intentional decapitation, e.g., as a means of murder or execution; it may be accomplished, for example, with an axe, sword, knife, wire, or by other more sophisticated means such as a guillotine...
. Xíng later evolved to be a general term for laws that related to criminal punishment. The early history Shang Shu recorded the earliest forms of the "five penalties": tattoo
Tattoo
A tattoo is made by inserting indelible ink into the dermis layer of the skin to change the pigment. Tattoos on humans are a type of body modification, and tattoos on other animals are most commonly used for identification purposes...
ing, disfigurement
Disfigurement
Disfigurement is the state of having one's appearance deeply and persistently harmed medically, as from a disease, birth defect, or wound.Disfigurement, whether caused by a benign or malignant condition, often leads to severe psychosocial problems such as negative body image; depression;...
, castration
Castration
Castration is any action, surgical, chemical, or otherwise, by which a male loses the functions of the testicles or a female loses the functions of the ovaries.-Humans:...
, mutilation
Mutilation
Mutilation or maiming is an act of physical injury that degrades the appearance or function of any living body, usually without causing death.- Usage :...
, and death
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
. Once written law came into existence, the meaning of xíng was extended to include not only punishments but also any state prohibitions whose violation would result in punishments. In modern times, xíng may be understood in the sense of penal law
Penal law
In the most general sense, penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation, as opposed to civil law that seeks to redress private wrongs...
or criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
. An example of the classical use of xíng is xíng bu (刑部: "Department of Punishment") for the legal or justice department in imperial China.
The two major Chinese philosophical schools discussed below, Confucianism and Legalism, strongly influenced the idea of law in China. Briefly, under Confucianism, the state should lead the people with virtue and thus create a sense of shame which will prevent bad conduct. Under Legalism, law is to be publicly promulgated standards of conduct backed by state coercion. The tension between these two systems is that Confucianism relies on tradition to make the leader the head of household of all China 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.
Unlike many other major civilization
Civilization
Civilization is a sometimes controversial term that has been used in several related ways. Primarily, the term has been used to refer to the material and instrumental side of human cultures that are complex in terms of technology, science, and division of labor. Such civilizations are generally...
s where written law was held in honor and often attributed to divine origin, law in early China was viewed in purely secular terms and its initial appearance was greeted with hostility by Confucian thinkers as indicative of a serious moral decline, a violation of human morality, and even a disturbance of the total cosmic order. Historically, the people's awareness and acceptance of ethical norms was shaped far more by the pervasive influence of custom and usage of property and by inculcating moral precepts than by any formally enacted system of law. Early emperors however embraced the Legalist ideal as a way of exerting control over their large and growing territory and population. This process was integrated with traditional Chinese beliefs in the cosmic order, holding that correct behavior was behavior consonant with the appropriate responses set by fǎ. Xíng states the potential costs to the individual of exceeding them and imposes penalties for these actions.
The imperial period was characterized mainly by the concept of law as serving the state, a means of exerting control over the citizenry. In the late Qing dynasty there were efforts to reform the law codes mainly by importing German codes with slight modifications. This effort continued and was amplified in the republican period resulting in the Provisional Constitution of 1912 which included the idea of equality under the law, rights for women, and broader rights for citizens vis-à-vis the government. The onset of the communist period at first rolled back the development of individual rights with the primary concept of law returning to that of a tool of the state. After the Cultural Revolution devastated the ranks of intellectuals and legal professionals, it took until 1982 for the idea of individual rights to reemerge as a significant influence on Chinese law.
The current constitution, created in 1982, states in Article V that no organization or individual is above the law and in Article III makes the People’s Congresses and state administration responsible to the people, paving the way for later efforts to allow enforcement of individual rights. Passage of the Administrative Litigation Law of 1987 created legal recourse for individuals from arbitrary government action, an avenue previously unavailable. Despite the deep-seated norm against legal proceedings, litigation in the Chinese courts has increased dramatically, especially in recent years. The continuing weakness of courts resulting from their dependence on the local government for financial support and enforcement undermines the effectiveness of these remedies but this has also begun to change with China’s initiatives to increase legal training and the professionalism of the judiciary. One avenue of individual appeal from government action which continues to be important is the custom of xinfang or petitions by citizens to the individuals officials for change. The continuing wide use of xinfang reflects the fact that many officials are still able to avoid legal sanctions and the underlying avoidance of the legal system, as well as the personal ability of officials to personally intervene to change unjust results. Recently xinfang has been institutionalized to some extent with the central government mandating that every level of administration establish a xinfang office to handle petitions and report them up to high levels. This solution by exertion of personal power clearly goes against the idea of rule of law, and worse, some scholars have noted that xinfang today functions more as an informational collection system for the government than an effective review mechanism.
Confucianism and Legalism
ConfucianismConfucianism
Confucianism is a Chinese ethical and philosophical system developed from the teachings of the Chinese philosopher Confucius . Confucianism originated as an "ethical-sociopolitical teaching" during the Spring and Autumn Period, but later developed metaphysical and cosmological elements in the Han...
and Legalism are two major Classical legal theories or philosophies developed during the Spring and Autumn period and the Warring States period, a time that saw the most impressive proliferation of new ideas and philosophies in Chinese history. While both theories call for governmental hierarchy, they differ drastically in their views of human potential and the preferred means to achieve political order. Nevertheless, both theories have influenced and continue to influence the development of cultural, social, and legal norms in China.
The basic premise of Confucianism is the idea that human beings are fundamentally good. With this optimistic view on human potential, Confucius advocates for ruling through li – traditional customs, mores, and norms – which allow people to have a sense of shame and become humane people with good character, rather than through government regulations and penal law. The idea is that people will internalize the acceptable norms and only take proper actions. This will not only lead to a harmonious social order, but it will also provide the additional benefit of improving an individual’s inner character and the overall quality of the society. In contrast, codified laws require external compliance, and people may abide by the laws without fully understanding the reason for compliance. As such, a social order achieved through formal laws does not come with the additional benefit of better citizenry. It is worth noting, however, that even Confucius did not advocate for the elimination of formal laws. Rather, according to Confucius, laws should be used minimally and reserved only for those that insist on pursuing one’s self-interests without taking into account the well being of the society.
As Confucius rejects the general use of formal laws to achieve social order, what lies vital to Confucius’ theory is the willing participation by citizens of the society to search for commonly accepted, cooperative solutions. In addition to willing participation of citizens, there must also be grounds or bases upon which commonly acceptable solutions can be arrived at - the concept known as li. Li is commonly understood as a set of culturally and socially valued norms that provide guidance to proper behaviors that will ultimately lead to a harmonious society. These norms are not fixed or unchangeable over time but rather a reflection of what is accepted at a particular time in a particular context. When conflicts arise, the li have to be applied and interpreted to produce a just result and restore the harmony of the society. However, in the absence of any procedural safeguard afforded by codified laws, interpretation of li is subject to abuse.
Recognizing that people in a society hold diverse interests, Confucius charges the ruler with the responsibility to unify these interests and maintain social order. This is not done by dictatorship but by setting an example. Therefore, a ruler needs not to force his people to behave properly. Instead, the ruler needs only to make himself respectful, and the people will be induced and enlightened by his superior virtues to follow his example – an ideal known as wuwei. Nevertheless, the ruler must know and understand the li to be able to create solutions to conflict and problems the society faces. As the people are to follow the moral standards and example set by the ruler, to a large extent, the quality of the ruler determines the quality of the political order.
In contrast to Confucius’ li-based theory, the Legalism advocates the utilization of codified laws and harsh punishment to achieve social order. This is due to the legalists’ belief that all human beings are born evil and self-interested. Therefore, if left unrestrained, people would engage in selfish behavior which will undoubtedly lead to social unrest. To cure this defect and force people to behave morally, the only way, believed the legalists, is to publicly promulgate clearly written laws and impose harsh punishments.
Realizing that the abilities of rulers are often limited and that reliance on the ruler’s ability and judgment often leads to adverse results, the legalists designed a system in which the law is run by the state, not the ruler. This ensures that the laws will be applied impartially without the interference of personal bias of the ruler or ones who are responsible for applying the laws. It also makes it irrelevant whether the ruler has superior abilities. This non-action promoted by the legalists is their understanding of the concept of wuwei, which is different from the Confucians’ understanding of the same concept. Notwithstanding such an understanding, the ruler, like in Confucianism, has the ultimate authority to decide what the law should be. Therefore, like Confucianism, Legalism is subject to abuse as well. In fact, the Qin emperor implemented strict laws and extremely harsh punishments without taking into account mitigating circumstances even for insignificant crimes. For example, books were burned and people holding different ideals were buried alive. While the Qin emperor successfully instilled fear and respect for law into the minds of his people, the harshness of the law led to his quick demise after only 14 years of reigning over China.
In summary, although both Confucianism and Legalism were developed in a period of turmoil and both were aimed at the re-unification of the country, the two theories went opposite directions with one advocating for and one against the use of formal laws to achieve social order. What the two theories have in common is their concession of the ultimate authority to the ruler, who remained above and beyond the li or law. It is true that neither theory is ideal in achieving a social order. Nevertheless, both theories have had a significant impact on the cultural and legal development in China, and their influence remains visible today.
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 traditional law, the Legalist school constructed the important framework of the traditional legal system. The Han dynasty
Han Dynasty
The Han Dynasty was the second imperial dynasty of China, preceded by the Qin Dynasty and succeeded by the Three Kingdoms . It was founded by the rebel leader Liu Bang, known posthumously as Emperor Gaozu of Han. It was briefly interrupted by the Xin Dynasty of the former regent Wang Mang...
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.
The Han dynasty formally recognized four sources of law: lü (律: "codified laws"), ling (令: "the emperor's order"), ke (科: "statutes inherited from previous dynasties") and bi (比: "precedents"), among which ling has the 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.
Eventually, the incorporation of the essentials of Confucianist li into legal codes occurred with this Confucian conception dominating ancient Chinese law. Ch'ü concludes that the gradual process of Confucianisation of law was the most significant development in the legal system of China prior to 20th century modernization. The line between ruling by moral influence and ruling by punishment was not always clearly delineated. For example, li could be enforced by moral influence and legal means. The metamorphosis of li into law depended on its widespread and unvaried acceptance by society.
Although the codification of law was largely completed by the Tang Code
Tang Code
The Tang Code was a penal code that was established and used during the Tang Dynasty in China. Supplemented by civil statutes and regulations, it became the basis for later dynastic codes not only in China but elsewhere in East Asia. The Code synthesised Legalist and Confucian interpretations of...
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.
The Confucian notion that morality and self-discipline was more important than legal codes caused many historians, such as Max Weber
Max Weber
Karl Emil Maximilian "Max" Weber was a German sociologist and political economist who profoundly influenced social theory, social research, and the discipline of sociology itself...
, until the mid-20th century to conclude that law was not an important part of Imperial Chinese society. This notion, however, has come under extreme criticism and is no longer the conventional wisdom among Sinologists, who have concluded that Imperial China had an elaborate system of both criminal and civil law which was comparable to anything found in Europe.
During the Qing dynasty, criminal justice was based on extremely detailed Great Qing Legal Code
Great Qing Legal Code
The Great Qing Legal Code or Qing Code was the legal code of Qing dynasty . The code was based on the Ming legal system, which was kept largely intact...
. 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 has confessed. This often led to the use of torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
, in order to extract the necessary confession. These elements still influence modern Chinese views toward law. All capital offenses
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
were reported to the capital and required the personal approval of the emperor.
There was no civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
separate from the criminal code
Criminal Code
A criminal code is a document which compiles all, or a significant amount of, a particular jurisdiction's criminal law...
, which led to the now discredited belief that traditional Chinese law had no civil law. More recent studies have demonstrated that most of the magistrates' legal work was in civil disputes, and that there was an elaborate system of civil law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
which used the criminal code to establish torts.
Modernization
The introduction and translation of Western legal texts into Chinese is believed to have been started under the auspices of Lin ZexuLin Zexu
Lín Zéxú ; 30 August 1785 – 22 November 1850) was a Chinese scholar and official during the Qing Dynasty.He is most recognized for his conduct and his constant position on the "high moral ground" in his fight, as a "shepherd" of his people, against the opium trade in Guangzhou...
in 1839. More systematic introduction of Western law together with other Western sciences started with the establishment of Tongwen Guan
Tongwen Guan
Tongwen Guan , or the School of Combined Learning was a government school for teaching Western languages , founded at Beijing, China in 1862 during the late-Qing Dynasty...
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
Meiji period
The , also known as the Meiji era, is a Japanese era which extended from September 1868 through July 1912. This period represents the first half of the Empire of Japan.- Meiji Restoration and the emperor :...
which involved in large part Japanese translation of European Continental laws
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
.
In the late Qing dynasty
Qing Dynasty
The Qing Dynasty was the last dynasty of China, ruling from 1644 to 1912 with a brief, abortive restoration in 1917. It was preceded by the Ming Dynasty and followed by the Republic of China....
there was a concerted effort to establish legal codes based on European models. Because of the German victory in the Franco-Prussian War
Franco-Prussian War
The Franco-Prussian War or Franco-German War, often referred to in France as the 1870 War was a conflict between the Second French Empire and the Kingdom of Prussia. Prussia was aided by the North German Confederation, of which it was a member, and the South German states of Baden, Württemberg and...
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. However, extensive research into China's traditional legal system has caused attitudes to become more favorable in the late-20th and early 21st centuries. Researchers of the early and mid-20th century tended to compare the traditional Chinese legal system to then contemporary systems, finding the former to be backward. However, more recent research compared the 18th century Chinese legal system to European systems of the 18th century, resulting in a far more positive view of traditional Chinese law.
The Department of Punishment was changed to fa bu (法部: "Department of Law") in the early 1900s legal reforms.
Republic of China
Law in the Republic of ChinaRepublic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
(Taiwan
Taiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
) is mainly a civil law system. The legal structure is codified into the Six Codes
Six Codes
Six Codes, , refers to the six main legal codes that make up the main body of law in Republic of China , Republic of Korea and Japan ....
: the Constitution, the Civil Code, the Code of Civil Procedures, the Criminal Code, the Code of Criminal Procedures and in Administrative laws.
People's Republic of China
After the Communist victoryHistory of China
Chinese civilization originated in various regional centers along both the Yellow River and the Yangtze River valleys in the Neolithic era, but the Yellow River is said to be the Cradle of Chinese Civilization. With thousands of years of continuous history, China is one of the world's oldest...
in 1949, the People's Republic of China quickly abolished the ROC's legal codes and attempted to create a system of socialist law
Socialist law
Socialist law denotes a general type of legal system which has been used in communist and formerly communist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology. There is controversy as to whether socialist law ever constituted a...
copied from the Soviet Union
Soviet law
The Law of the Soviet Union—also known as Socialist Law—was the law developed in the Soviet Union following the October Revolution of 1917...
. With the Sino-Soviet split
Sino-Soviet split
In political science, the term Sino–Soviet split denotes the worsening of political and ideologic relations between the People's Republic of China and the Union of Soviet Socialist Republics during the Cold War...
and the Cultural Revolution
Cultural Revolution
The Great Proletarian Cultural Revolution, commonly known as the Cultural Revolution , was a socio-political movement that took place in the People's Republic of China from 1966 through 1976...
, all legal work was suspected of being counter-revolutionary, and the legal system completely collapsed.
Over the past century, there have been numerous constitutions in China. The first attempts towards implementing a constitution in China were made during the final decade of the Qing Dynasty. Several constitutions were subsequently promulgated by various controlling groups between that time and the establishment of the PRC. The PRC had a provisional constitution from its inception until the enactment of its first constitution in 1954. This initial constitution was based on the constitution of the Soviet Union. It was shortly ignored, however, and became without legal force. Although it provided that the National People’s Congress (NPC) would be elected every four years as the highest state power, these guidelines were not adhered to. The second constitution of the PRC was modeled on the ideology of the Cultural Revolution and promulgated in 1975. This constitution subjected the NPC to the Communist Party and removed previous constitutional protections such as equality under the law and private property succession rights. It was also immediately disregarded through breaches of its provisions and in-adherence to guidelines regarding the NPC. The third constitution of the PRC was adopted in 1978. Although this version moved away from the ideologies of the Cultural Revolution, it did retain some remnants of it. It also retained Communist Party control over the state structure. However, reformists subsequently gained power, which lead to the breakdown of this constitution as focus shifted to economic construction and modernization.
With the start of the Deng Xiaoping
Deng Xiaoping
Deng Xiaoping was a Chinese politician, statesman, and diplomat. As leader of the Communist Party of China, Deng was a reformer who led China towards a market economy...
reforms, the need for reconstructing a legal system to restrain abuses of official authority and revolutionary excesses was seen. In 1982, the National People's Congress
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
adopted a new state constitution
Constitution of the People's Republic of China
The Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
that emphasized the rule of law under which even party leaders are theoretically held accountable. This reconstruction was done in piece-meal fashion. Typically, temporary or local regulations would be established and after a few years of experimentation, conflicting regulations and laws would be standardized.
The current Constitution of the PRC was enacted in 1982 and reflects the model of the first PRC constitution. The Constitution provides that leadership is through the working class, which in turn is led by the Communist Party. This Constitution also contains more extensive rights than any of the previous constitutions. The rights include equality before the law, political rights, religious freedom, personal freedom, social and economic rights, cultural and educational rights, and familial rights. These rights, however, are connected to social duties. The duties include safeguarding the unity, security, honor, and interests of the country, observing law and social ethics, paying taxes, and serving in the military. Neither the rights nor duties provided for in the Constitution are exhaustive.
The Constitution provides that the NPC is the supreme organ of state power over a structure of other people’s congresses at various levels. The NPC has power to amend the Constitution by a two-thirds majority, promulgate legislation, elect and remove highest-level officials, determine the budget, and control economic and social development planning. The NPC also includes a Standing Committee that functions much as the NPC does when the NPC is not in session. Although the Standing Committee has had some powers since 1955, its law-making powers were initially provided for in the 1982 Constitution. The NPC sits at the highest level in the hierarchy of governmental structure in the PRC. This national level is followed in descending order by the provincial level (including autonomous regions and municipalities directly under the national level), the prefectural level, the county level, and the townships and towns level. Government members at the lower two levels are directly elected, and those at the higher levels are elected by the lower levels. In addition to the NPC, the provincial people’s congresses possesses legislative power and can pass laws so long as they do not contravene the Constitution or higher legislation or administrative regulations.
The Constitution states its own supremacy. However, it has been theorized that the supremacy of the Communist Party means that the Constitution and law are not supreme, and that this perspective is the result of the Marxist view of law as simply a superstructure combined with a lack of recognition of rule of law in philosophical or historical tradition. Although the Constitution provides for legislative, executive, judicial, and pro-curatorial powers, they are all still subject to Communist Party leadership. Often, important political decisions are made through actions which are not regulated by the Constitution. Additionally, courts may not rely on the Constitution in deciding cases, and they may not review legislation for Constitutionality. Nonetheless the Constitution does provide the linguistic framework for conducting government affairs and describing them in the media.
Since 1979, when the drive to establish a functioning legal system began, more than 300 laws and regulations, most of them in the economic area, have been promulgated. The use of mediation committees, informed groups of citizens who resolve about 90% of the PRC's civil disputes and some minor criminal cases at no cost to the parties, is one innovative device. There are more than 800,000 such committees in both rural
Rural
Rural areas or the country or countryside are areas that are not urbanized, though when large areas are described, country towns and smaller cities will be included. They have a low population density, and typically much of the land is devoted to agriculture...
and urban areas.
In drafting the new laws, the PRC has declined to copy any other legal system wholesale, and the general pattern has been to issue laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more precedental value than in most civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurisdiction. In formulating laws, the PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the Republic of China
Republic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
on Taiwan
Taiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
, and the English-based common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
used in Hong Kong.
Legal reform became a government priority in the 1990s. The Chinese government has promoted a reform it often calls "legalisation" (法制化). Legalisation, among other things, has provided the regime with a gloss of legitimacy and has enhanced predictability. There have been major efforts in the rationalization and strengthening of the legal structure and institution building in terms of developing and improving the professionalism of the legislature, judiciary and legal profession. As market reforms have deepened and social inequality has widened, legal forums - ranging from mediation
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
and arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
commissions to courts - have come to play an increasingly prominent role.
The 1994 Administrative Procedure Law allows citizens to sue officials for abuse of authority or malfeasance. In addition, the criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
and the criminal procedures laws were amended to introduce significant reforms. The criminal law amendments abolished the crime of "counter- revolutionary" activity. However political dissidents are sometimes charged on the grounds of subverting state security or publishing state secrets. Criminal procedures reforms also encouraged establishment of a more transparent, adversarial trial process. Minor crimes such as prostitution and drug use are sometimes dealt with under re-education through labor laws. The PRC constitution and laws provide for fundamental human rights, including due process, but some have argued that they are often ignored in practice. (See Human rights in the People's Republic of China
Human rights in the People's Republic of China
Human rights in the People's Republic of China are a matter of dispute between the Chinese government, other countries, international NGOs, and dissidents inside the country. Organizations such as the U.S. State Department, Amnesty International, and Human Rights Watch have accused the Chinese...
.)
The basic principles of Chinese legislative drafting include generality and flexibility. Sometimes excessive generality and omissions in Chinese law, coupled with the wide discretionary powers conferred on local authorities to implement laws, undermines the predictability and certainty of law. Furthermore, as Chinese law is intended to be educative, the language of the law is that of the ordinary language comprehensible to the average citizen, although many laws are drafted in broad and indeterminate language.
As a result of a pending trade war with the United States of America
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
over violations of intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
rights of American corporations in the early 1990s, the People's Republic of China's trademark law
People's Republic of China's trademark law
The system of trademark law in mainland China is administered by the China Trade Mark Office or CTMO...
has been modified and now offers significant protections to foreign trademark owners.
After the transfers of sovereignty, Hong Kong and Macau
Macau
Macau , also spelled Macao , is, along with Hong Kong, one of the two special administrative regions of the People's Republic of China...
continue to practice English Common Law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and Portuguese
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
legal systems respectively, with their own courts of final appeal
Court of Final Appeal
The Court of Final Appeal of Hong Kong is the court with the final adjudication power on the laws of Hong Kong.Before 1 July 1997, Hong Kong was a British dependent territory, and the power of final adjudication on the laws of Hong Kong was vested in the Judicial Committee of the Privy Council in...
. In other words, Hong Kong and Macau are outside of the legal jurisdiction of the People's Republic of China, except on constitutional issues.
Due to the growing sophistication of Chinese laws, the expansion of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
, as well as an influx of foreign law firms, China has also begun to develop a legal services market. Foreign lawyers have accompanied foreign capital and their clients to China which has had an immense influence on the promulgation of new Chinese laws based on international norms, especially in regards to intellectual property and corporate and securities law.
On July 1, 1992, in order to meet growing demand, the Chinese government opened the legal services market to foreign law firms allowing them to establish offices in China when the Ministry of Justice and the State Administration of Industry and Commerce (SAOIC) issued the Provisional Regulation of Establishment of Offices by Foreign Law Firms regulation.
As a result, many foreign law firms, including the United States' Baker & McKenzie
Baker & McKenzie
Baker & McKenzie is an international law firm, founded in Chicago in 1949 by Russell Baker and John McKenzie. It is home to more than 3,800 lawyers spread over 70 offices in 42 different countries....
and Paul, Weiss, Rifkind, Wharton & Garrison
Paul, Weiss, Rifkind, Wharton & Garrison
Paul, Weiss, Rifkind, Wharton & Garrison LLP is a law firm headquartered on Sixth Avenue in New York City. The firm has well-noted expertise in its corporate, personal representation, entertainment law and litigation practices, having long been a leader among national litigation firms...
, along with several British firms, incorporated consulting firms in their home countries or Hong Kong and then set up subsidiaries in Beijing or Shanghai to provide legal services.
However, there still many regulatory barriers to entry to protect the domestic legal industry. Issues relating to Chinese law must be referred to Chinese law firms and foreign lawyers are also prohibited from interpreting or practicing Chinese law nor representing their clients in court. However, in reality many foreign law firms interpret laws and manage litigation by directing the local firms they must have cooperative relationships with. In this regards China's restrictive legal market can be directly tied to a phobia of people asserting their legal rights in the face of rampant corruption. Information received from the State Council Legislative Office suggests that China may be allowing foreigners to sit the Chinese Lawyers Examination, or have a mutual recognition treaty with other countries to allow foreign lawyers to conduct non-litigation Chinese legal work.
While the trend in China’s legal landscape is to continue to open up the legal market, China’s laws and regulations have helped develop a number of domestic Chinese firms to specializing to meet demand of a booming economy. According to Asia Law and Business magazine China Awards, the top China firms were King & Wood PRC Lawyers, Commerce & Finance Law Offices, Fangda Partners, Haiwen & Partners, Jun He Law Offices
Jun He Law Offices
Jun He Law Offices is one of the first law firms established when law firms were first allowed in the People’s Republic of China. To advance its policy of market-based reforms, China adopted foreign approaches to legal regulations, particularly in the area of commercial law. The Sino-Foreign...
and Lehman, Lee & Xu
Lehman, Lee & Xu
Lehman, Lee & Xu is a Chinese law firm, established in 1992 by Edward Lehman, Jason Lee, and Xu Jia Li. Its headquarters are located in Beijing.-History:...
.
Legal rights
Classical Chinese does not have a semantic equivalent to the concept of "rights". The idea of rights was introduced to China from the West. Its translation as quanli (权利) was coined by William Alexander Parsons MartinWilliam Alexander Parsons Martin
William Alexander Parsons Martin was an American Presbyterian missionary to China and translator, famous for having translated a number of important Western treatises into Chinese, such as Henry Wheaton's Elements of International Law.He graduated from Indiana University in 1846, known at that...
in 1864, in his translation of Henry Wheaton's Elements of International Law.
Rule of law
One of the most commonly used phrases in contemporary China, by legal scholars and politicians alike, is fǎzhì (法治). Fǎzhì can be translated into English as "rule by law". While fǎzhì supposed to be "rule of lawRule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
", there is a widely misconceiving that mixed "rule by law" with fǎzhì. The related concepts of yi fa zhi guo (以法治国: "governing the nation in accordance with law") and jianshe shehui zhuyi fazhi guojia (建设社会主义法制国家: "building a socialist rule of law state") have been part of the Chinese Communist Party's official policy since the mid-1990s. In 1999, the NPC adopted an amendment to the Chinese Constitution, incorporating both concepts in Article 5.
The existence of the rule of law in China has been widely debated. There are differing theories of the rule of law. One theory is the "thin", or formal, theory of rule of law, and the other is the "thick" theory.
The "thin" theory of rule of law is described by Randall Peerenboom as at the basest level incorporating a legal system that imposes meaningful restraints on the state and individuals in ruling power, that the law is supreme, and that all citizens are equal before the law (Peerenboom, 2). According to Lon Fuller’s account of thin theory, rule of law exists in a society when the laws of that society are “general, public, prospective, clear, consistent, capable of being followed, stable, and enforced” (Peerenboom, 3). The thin theory has also been explained by Joseph Raz as emphasizing the formal or instrumental aspects of a legal system regardless of whether it is part of a particular political structure, i.e. a democratic or non-democratic society.[14] Thick theory rule of law espouses all the elements of thin theory in addition imposes a political, social, and economic concept into the rule of law. The rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
is regarded by some as presupposing political or economic structures of liberal democracy
Liberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...
, human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
and other ideal socio-legal order.[11] Some scholars believe that given China's socialist and non-democratic political system and practice, it is at best regarded as a country of rule by law with law used by the state as an instrument for social control.[12] However, others rely on the formal or thin theory of rule of law to interpret fazhi as a legal reality in China.[13] Additionally, some believe that China may still fall short of the thin theory of rule of law.
Of particular relevance to the second principle set out above, was the enactment of the Administrative Permission Law of the PRC (APL) on 27 August 2003, effective from July 2004. The APL for the first time requires all laws and regulations that subject any civil act to approval requirements to be published.
The APL also provides that only those laws adopted by the National People’s Congress or its Standing Committee, administrative regulations promulgated by the State Council, and local regulations adopted by the local people’s congresses may impose administrative approval requirements. Individual ministries or agencies (central or local) do not have such powers except in specified circumstances. This is consistent with the hierarchy of laws and regulations provided under the Legislative Law of the PRC. The enactment of the APL represents an encouraging step forward.
Despite the newly elevated role of courts in Chinese society, there still remains some consensus about defects in China’s legal system in regards to progressing towards the rule of law. Scholars point to the following defects as slowing movement toward rule of law. These include:
- First, the National People’s Congress is ineffective at executing its constitutional duty to legislate and supervise the government.
- Second, the Chinese ConstitutionConstitution of the People's Republic of ChinaThe Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
is not treated as the supreme law, nor is it enforced.
- Third, the judiciary is not independent from political pressure. On the other hand, direct intervention in particular cases by the CCP has lessened in recent years, as has the direct influence of the CCP on the legislative process.
- Fourth, there is a high level of corruption among public officials. Personal favors, bribery, and taking of public monies are all too common at all levels of government.
- Finally, the legal profession is inadequate for lack of qualified attorneys and judges. This failure is being remedied by legislation aimed at instituting higher educational standards for judges, opening more courts and law schools throughout China.
External links
- Chinese Legislative Information Network System full text search of English translations of hundreds of PRC laws and regulations
- Ancient Chinese Theories of control (management study)
- Judicial independence should come first China DailyChina DailyThe China Daily is an English language daily newspaper published in the People's Republic of China.- Overview :China Daily was established in June 1981 and has the widest print circulation of any English-language newspaper in the country...
/Beijing ReviewBeijing ReviewBeijing Review is China's only national news magazine in English, published by the China International Publishing Group. It claims a per-issue circulation of 70,000 and distribution "throughout China and 150 countries and regions worldwide."...
2005-11-15 (article on Peking UniversityPeking UniversityPeking University , colloquially known in Chinese as Beida , is a major research university located in Beijing, China, and a member of the C9 League. It is the first established modern national university of China. It was founded as Imperial University of Peking in 1898 as a replacement of the...
legal scholar He WeifangHe WeifangHe Weifang is a professor at Peking University of China and an activist striving to reform the Chinese judicial system.He earned a B.A. at Southwest University of Political Science & Law, and an LL.M at Peking College of Political Science and Law .He was an associate professor in China University...
)