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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...