China's Legal System

Pitman Potter

• Publisher: Polity
• Year: 2014
• Print ISBN:
  9780745662695
  9780745662688
• Edition: 1
• eBook ISBN:
  9780745672168
• Topic: Law
• Subtopic: International Law
• Index: Law

China's struggle for the rule of law is at a critical juncture. As a key element of governance in the PRC today, China's legal system affects not only domestic affairs but also China's engagement with the world. But can a credible legal system emerge which protects the rights of citizens and international partners without undermining the power of the Party State? And is the Chinese Communist Party willing to embark on judicial reforms that may jeopardize its very survival?

Understanding the PRC legal system is increasingly important as China rises to prominence in the world. In this compelling analysis, noted legal scholar Pitman Potter examines the ideals and practices of China's legal regime, in light of international standards and local conditions. Against a rich historical backdrop, Potter explains how China's legal system supports three key policy objectives; namely, political stability, economic prosperity, and social development. In exploring these competing policy goals and the tensions between them, he also raises fundamental questions about government expectations of the role of law in regulating local and international socio-economic and political relationships.

This wide-ranging and readable introduction will be an invaluable guide for students and non-specialists interested in China's ongoing process of legal modernization.

1

Development of the Socialist Legal System

The contemporary PRC legal system reflects a range of historical and contemporary influences. Domestic influences provide the foundation for Chinese law, beginning with the traditions of the imperial period. Legal initiatives under the Republic of China (est. 1911), during the revolutionary period, and after the 1949 Communist Revolution, reflected tensions between domestic concerns with increased international influence. The launching of legal reforms in 1978 signaled a new effort at building a legal system, although there have been numerous changes and challenges since then. Understanding the PRC legal system today requires an appreciation for its historical antecedents and contemporary contexts.

I. Historical Foundations for PRC Law

The PRC legal system reflects the influences of historical conditions and changes affecting China over the past several centuries. Particular elements of this include Chinese legal tradition and the law code of the Qing Dynasty (Da Qing Lü Li) that used formal rules and institutions of punitive law (referred to in Chinese as “fa”) to enforce moral principles of Confucian propriety (“li”). This dichotomy between moral education and formal legal punishment continued to influence the development of law under the Republic of China and later in the PRC.

While much of the Qing Code focused on criminal punishments for errant social behavior, many kinds of ordinary social and economic activities were also addressed, including commercial law, contracts, and property.¹ As well, the handling of disputes in local practice under the Qing suggested that the guidance of formal legal codes was aimed primarily at expressing ideals of governance while local practice tended to reflect local priorities around relationships and community socialization.² Features of the Qing Code (and the Ming Code before that), such as severity of punishment; the privileged status of officials; reliance on magistrates as judge, jury, and executioner; and the general lack of attention to formal legal education, were grounded in Confucian norms of hierarchy, propriety, and relational justice.

Confucian foundations of Qing law included notions of “relational justice,” by which the application of law depended on hierarchical relations in society that privileged officials, men, and elders over commoners, women, and youth. Thus, criminal punishment applied not only to conventional crimes such as murder, assault, and theft, but also to behavior that would be classified as civil rather than criminal in many legal systems today, such as breach of agreement, harm to reputation, and interference with commercial relationships As well, the severity of punishment varied according to the relationship between the perpetrator and the victim – punishment was more severe if the act was deemed to violate a Confucian relationship in society.

Traditional perspectives of Qing law also included the notion of “catch-all statutes,” by which officials were granted discretion to implement legal rules. Under this system, officials were indoctrinated in Confucian classics prior to being appointed, and so were presumed to possess the virtue and propriety needed to govern society – whether through law or through other mechanisms of governance. As a result, application of law tended to be flexible and dependent on the discretionary judgment of officials, whose technical training (often acquired on the job or through personal vocation) was considered less important than their Confucian rectitude. This “amateur ideal,” by which government officials were expected to make decisions not based on technical expertise in the subjects of administration but reliant instead on Confucian virtue and propriety, influenced subsequent approaches to law under the Republic of China and later the People's Republic of China.³

During the later years of the Qing Dynasty, the government attempted a range of legal reforms, including establishment in 1904 of the Imperial Law Commission. Under the leadership of Shen Jiaben, the Commission was tasked with compiling information on legal models in other countries – particularly Japan and Germany, and drafting legislation for application in China. This process was one of several initiatives taken by the declining Qing government to utilize foreign knowledge and technology while preserving the essence of Chinese values and identity. The tension over how to adapt foreign techniques to China without jeopardizing China's culture has often been referred to as the debate between ti (preserving China's essence) and yong (utilizing foreign knowledge).⁴ This dilemma had played a strong role in the various processes of China's opening to the outside world, at the end of the Qing Dynasty, during the Republican Period (1911–49), and under the PRC, particularly in the post-Mao era.

The work of the Qing Imperial Law Commission included preparation of a Company Law (1904), drafting of an Administrative Court Organization Law (1909) and a Criminal Code (1911), and included efforts to complete legislation in the areas of foreign trade, trademarks, civil procedure, and a Civil Code. These efforts represented an important shift away from practices and principles of discretionary rule that had characterized the Confucian model of law and governance in traditional dynastic China. The Civil Code embodied a transition from punishment to rights as the basis for socio-economic relations, while distinguishing these relationships from criminal acts punishable under the Criminal Code was also a significant step away from traditional practices. While the decaying Qing government was far too weak to ensure the implementation of these laws, many of those working on law reform in the late Qing period continued this work under the Republic of China government.

The establishment of the Republic of China (ROC) in 1911 marked the end of traditional dynastic rule and a major watershed in the transition to modern government. Inspired by the philosophy of Dr Sun Yat-sen, the Nationalist Party of China (Guomindang or GMD) attempted to establish a parliamentary system of governance. Under the doctrine of “political tutelage,” the GMD established a dual system of governance by which state institutions such as legislatures, courts, and administrative agencies operated under the guidance of a parallel structure of supervisory GMD organs. This pattern of dual party and state rule was replicated later by the Communist Party of China (CPC). During the period of ROC rule (1911–49), recurring economic and political crises inhibited efforts to establish an effective national government. Nonetheless, during the ten years of relative peace between 1927 and 1937 (the so-called “Nanjing Decade”), the ROC saw an impressive record of law making. Significant efforts included a Civil Code (1929) that combined civil and commercial regulation following the model of Swiss law, a Company Law and Negotiable Instruments Law (1929), a Criminal Code (1935), a Civil Procedure Law (1935), and a Trademark Law (1936).

Several aspects of law under the Republic of China are noteworthy. The transition away from the “relational justice” norms of Qing China toward more objective treatment of legal actors was embodied in the ROC Civil Code. The introduction of the concept of “legal persons” (individuals) and “natural persons” (associations, companies, and the like) was derived from civil law arrangements of continental Europe and made little if any reference to social relationships as the basis for legal status. In a reversal of Qing orthodoxy, the ROC legal system combined objectivity in the treatment of legal actors with subjectivity in the analysis of legal acts. Thus, ROC law included the role of intent as the basis for juristic acts, in contrast to the more rigid provisions of the Qing Code where every act brought legal (and often punitive) consequences based simply on the act and its presumed effects on the social relationships between the actors involved, rather than the subjective intent of the perpetrator. ROC law also entrenched the distinction between public and private law such that obligations such as contracts were considered private even when enforcement was subject to public institutions. Here again, this was a departure from the patterns of the Qing Code, which tended to conflate public and private relationships such that private disputes and offenses were often subject to criminal punishment.

These developments in ROC law remain influential. In Taiwan today, court decisions issued under the Republic of China beginning in 1911 continue to serve as legal precedent. As well, legal institutions and practice under the Republic of China influenced drafting and interpretation of law in the PRC during its early years and during the legal reform of the post-Mao era. Thus, while ROC law applied effectively only in a few cities along the Yangtse River owing to the relative political and military weakness of the government, legal doctrines and ideals continued to serve as a foundation for the legal arrangements that emerged under the PRC and in Taiwan.

II. Transition to Law in the PRC

When the People's Republic of China was established in 1949, the leaders of the Communist revolutionary movement already had significant experience with legal institutions and regulatory processes. Even as they carried out their commitment to revolution, China's new leaders drew upon their own past experience with governance and regulation.

A. Law in the Revolutionary Base and Border Areas

Soon after the founding of the CPC in Shanghai in 1921, the movement was driven out into the rural area of southeast Jiangxi province where it established a Revolutionary Base Area (the “Jiangxi Soviet Republic”). Institutions of law and governance were established along with codes of formal law and regulation on matters such as family relations, land reform, and taxation.⁵ Later, after near-defeat by Nationalist encirclement campaigns, the CPC embarked on the Long March to northwest Yan'an in Shaanxi province in 1934–5 and established the Shaan-Gan-Ning (Shaanxi-Gansu-Ningxia) and Jin-Cha-Ji (Shanxi-Chahar-Hebei) Border Areas to continue resistance to GMD/ROC rule and to confront Japanese invasion. In each of these areas, the CPC established organizations for governance and legal administration, and enacted laws and regulations on such diverse matters as criminal law, taxation, elections, marriage, labor, and land reform. As shown in table 1.1, many of these laws served later as the basis for legislation and regulation after the founding of the PRC.

Table 1.1 Comparison of Jiangxi Soviet, Jin Cha Ji Border Region, and PRC Laws

Sources: William E. Butler, ed., The Legal System of the Chinese Soviet Republic 1931–34 (New York: Transnational Publishers, 1983); Lan Quanpu, Jiefangqu fagui gaiyao [Outline of laws and regulations in the liberated areas] (Beijing: Masses Publishers, 1982); Han Yanlong and Chang Zhaoru, eds, Zhongguo xin minzhuzhuyi geming shiqi genju di fazhi wenxian xuanbian [Collection of legal documents from the base areas during China's new democratic revolution] (Beijing: Chinese Academy of Social Sciences Press, 1981).

Chinese Soviet Republic, Jiangxi 1927–34	Jin Cha Ji Border Region 1936–49	People's Republic of China, est. 1949
Constitution 1931	Governance Outline 1940	Constitution 1954
Land Law 1931	Land Law 1947	Land Reform Law 1950
Labor Law 1933	Regulations on Safeguarding Labor Hiring in Rural Areas 1944	Regulations on Labor Insurance 1951
Election Law 1933	Election Regulations 1943	Election Law 1953
Regulations on Suppression of Counterrevolutionaries 1934	Special Regulations on Traitors Who Voluntarily Surrender 1938	Regulations on Punishment of Counterrevolutionaries 1951
Marriage Law 1934	Marriage Regulations 1943	Marriage Law 1950

The transition from revolution by the CPC to governance under the People's Republic brought significant challenges. With the defeat of Japan in 1945 and the CPC victory in the civil war in 1949, what had been largely a rural revolutionary movement faced tasks of national governance that required significantly greater institutional capacity than had been needed either in the Jiangxi Soviet or in the northern Border Areas. Whereas the revolutionary experience had largely been one of popular mobilization and military conflict, governing the country required systematic processes for government organization and control. In the short term, this meant continued reliance on the GMD/ROC law codes whose structure and content continued to influence the shape and operation of law in the early years of the PRC, even as they were publicly repudiated by the new CPC-led regime. The new PRC government also relied initially on legal specialists from the former ROC regime, although this was largely halted with a 1952 campaign to remove former GMD judges.

B. Socio-economic and political transformation

Legal development in the early years of the PRC, particularly between 1949 and 1954, was influenced by contradictions between continuing revolution and institution-building. After attaining national political power, the CPC addressed challenges of transforming the traditional Chinese economy and society through laws that changed the foundations for land and family relations.

The Land Reform Law was developed on the basis of land reform laws and regulations developed in the Jiangxi Soviet Base Area, and continuing in the Shaan-Gan-Ning and Jin-Cha-Ji Border Areas. Departing from the collectivization model urged by their Soviet Russian advisors, the Chinese Communists adopted programs of land redistribution. This had caused significant disagreement between the Chinese communist leadership and their Soviet supporters during the time of the Jiangxi Soviet and the northern Border Areas. Nonetheless, the land reform campaign, which stretched from the later revolutionary period into the early years of the PRC, revealed a commitment to redistribution of land rather than collectivization. The 1950 PRC Land Reform Law⁶ espoused policy goals of redistribu...

Table of contents

• Cover
• Series page
• Title page
• Copyright page
• Dedication
• Map
• Tables and Figures
• Chronology
• Acknowledgments
• Author's Note
• Introduction
• 1: Development of the Socialist Legal System
• 2: Political Stability
• 3: Economic Prosperity
• 4: Social Development
• 5: International Engagement
• Conclusion
• References
• Index