Chinese law
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The Law of China, for most of the history of China, was rooted in the Confucian philosophy of social control. These influences remain in the Soviet-influenced system of the People's Republic of China and the German-based system of the Republic of China.
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Imperial era
Main article: Traditional Chinese law
The teachings of Confucius have had an enduring effect on Chinese life and have provided the basis for the social order through much of the country's history. Confucians believed in the fundamental goodness of man and advocated rule by moral persuasion in accordance with the concept of li (propriety), a set of generally accepted social values or norms of behavior. Li was enforced by society rather than by courts. Education was considered the key ingredient for maintaining order, and codes of law were intended only to supplement li, not to replace it (see Hundred Schools of Thought).
Confucians held that codified law was inadequate to provide meaningful guidance for the entire panorama of human activity, but they were not against using laws to control the most unruly elements in the society. The first criminal code was promulgated sometime between 455 and 395 B.C. There were also civil statutes, mostly concerned with land transactions. The Confucian notion that morality and self-discipline was more important than legal codes causes 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.
Legalism, a competing school of thought during the Warring States period, maintained that man was by nature evil and had to be controlled by strict rules of law and uniform justice. Legalist philosophy had its greatest impact during the Qin Dynasty.
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 based on ethical and moral persuasion. 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.
Qing Dynasty
During the Qing dynasty, criminal justice was based on a written and extremely detailed criminal code. One element of the traditional Chinese criminal justice system, which still influences modern Chinese views toward law, is the notion that criminal law has a moral element and that one important element of criminal law was to get the defendant 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 they confessed. This often led to the use of torture, in order to extract the necessary confession. All capital offenses were reported to the capital and required the personal approval of the Emperor of China.
There was no civil code separate from the criminal justice 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 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 modelled 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.
Republic of China
The existing German-based legal codes were then adopted by the new Republic of China government, but they were not immediately put into practice - following the overthrow of the Qing dynasty in 1911, China came under the control of rival warlords and had no government strong enough to establish a legal code to replace the Qing code. Finally, in 1927, Chiang Kai-shek's Kuomintang forces were able to suppress the warlords and gain control of most of the country. Established in Nanjing, the KMT government attempted to develop Western-style legal and penal systems. Few of the KMT codes, however, were implemented nationwide. Although government leaders were striving for a Western-inspired system of codified law, the traditional Chinese preference for collective social sanctions over impersonal legalism hindered constitutional and legal development. The spirit of the new laws never penetrated to the grass-roots level or provided hoped-for stability. Ideally, individuals were to be equal before the law, but this premise proved to be more rhetorical than substantive. In the end, most of the new laws were discarded as the Kuomintang became preoccupied with fighting the Chinese Communists and the invading Japanese.
Law in the Republic of China on Taiwan is based on the German-based legal system which carried to Taiwan by the Kuomintang. In the area of constitutional law, the Republic of China uses the 1947 Constitution which was promulagated for both Mainland China and Taiwan although numerous changes have been made to take into account the fact that the Republic of China only controls Taiwan and two counties of Fujian.
People's Republic of China
Main article: Law of the People's Republic of China
After the Communist victory 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.
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.
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 an 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 formulate 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. The law of the United States has also been very influential particularly in the area of banking and securities law.
Legal reform became a government priority in the 1990s. Legislation designed to modernize and professionalize the nation's lawyers, judges, and prisons was enacted. 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 reeducation 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 China)
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 Macao continue to practise English Common Law and Portuguese legal systems respectively, with their courts of final appeal. In other words, Hong Kong and Macao are outside of the legal jurisdiction of the People's Republic of China, except on constitutional issue.
China's legal code remains undeveloped, often with judges that have not undergone legal training. It is said that it will take 50 years for China's legal system to catch up with those in the West.
External link
- Article on formal and informal social control (http://216.239.35.100/search?q=cache:I-AcZS90vfEC:www.hku.hk/crime/2ccgc/papers/allanjiao.doc+formal+government+law+%22social+control%22&hl=en&ie=UTF-8)zh:中華人民共和國法律體系