Chinese legal system. Course Syllabus for <Chinese Legal System>. introduction on areas include: The general theory about Chinese law, the history of china legal system, constitution and administrative law civil law economic law criminal law procedure law. Teaching Method(s).
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Course Syllabus for <Chinese Legal System> introduction on areas include: • The general theory about Chinese law, the history of china legal system, • constitution and administrative law • civil law • economic law • criminal law • procedure law.
Teaching Method(s) • 1. ppt or • 2. teacher gives lecture mainly or • 3. students ask questions with detailed explanation or • 4.case discussion (seminar ) • 5. video about Chinese law and cases
Assessment Information The formative assessment method is adopted for the course.It consists of the following aspects: • 1、School attendance and class performance 30% • 2、requires that a report (on chinese law or law of your countries)of 1000-1500 words be written under open-book condition. The report should achieve 70% of available marks.
Lecture one The history of chinese legal system
Overview • Brief Introduction to the legal systems of the world • Chinese legal history and legal tradition • Republican China • Development after 1949
1.The legal systems of the world • civil law, common law, Islamic law , Hindu law and Chinese law. • But, with The falling down of the ancient civilization , the traditional Chinese law and hindu law have little influence on modern world. • The legal systems of the world today are generally based on : civil law, common law, and Islamic law – or combinations of these. However, the legal system of each country is shaped by its unique history .
1.The legal systems of the world Civil law Common law Bijuridical (civil and common law, also known as mixed jurisdiction) Islamic law (Sharia)
Civil law (Continental European law) • The central source of law that is recognized as authoritative is codifications or statute passed by legislature, to amend a code.
four distinct groups of civil law • French civil law: in France, the Benelux countries, Italy, Romania, Spain and former colonies of those countries; • German civil law: in Germany, Austria, Switzerland, Estonia, Latvia, former Yugoslav republics, Greece, Portugal and its former colonies, Turkey, Japan, South Korea and the Republic of China; • Scandinavian civil law: in Denmark, Norway and Sweden. As historically integrated in the Scandinavian cultural sphere, Finland and Iceland also inherited the system. • Chinese law: a mixture of civil law and socialist law in use in the People's Republic of China.
Common law(Anglo-American law ) • whose sources are the decisions in cases by judges. Alongside, every system will have a legislature that passes new laws and statutes. • developed in England, almost every former colony of the British Empire has adopted it (Malta being an exception). • The doctrine of stare decisis or precedent by courts is the major difference to codified civil law systems.
Common law is currently in practice in Ireland, most of the United Kingdom (England and Wales and Northern Ireland), Australia, New Zealand, Bangladesh, India, Pakistan, South Africa, Canada (excluding Quebec), Hong Kong, the United States (excluding Louisiana) . • In addition to these countries, several others have adapted the common law system into a mixed system. e.g. Nigeria operates largely on a common law system but incorporates religious law.
2.Chinese legal history and legal tradition Chinese Legal system • 1、the system of existing domestic laws in P.R.china （中国法律制度） • 2、 traditional Chinese law （中华法系）
①Brief Introduction to China • Officially called as the People’s Republic of China or PRC (Chinese people, for thousands of years, call their country “zhongguo”, which literally means “Central Country” or “Middle Kingdom”, reflecting their belief that the country stood as a leading civilization for centuries, outpacing the rest of the world in the arts and sciences.) • Largest country in terms of population (over 1300 million) • Third the largest in the world in area (after the Russia and Canada; slightly larger than U.S.A. )
Location and Climate • Stretching from its southern borders in the Himalayas to the deserts of Mongolia in the north, and from the East China Sea through the Yangzi River Valley plains, to the Tibetan Plateau in the western mainland, China covers an area of some 9,600,000 square kilometres with more than 5,000 islands, of which Taiwan and Hainan are the largest. . • The climate varies from the subtropical south, with a heavy monsoon rainfall, to the arid North-west; in winter the temperature can be -30°C in the North-east, yet 15°C in the far South.
Diversity of People and Language • Over 50 different nationalities living in China. The majority (94 %) are Han; the other groups include Tibetans, Mongolians, Zhuang, Li and Miao whose languages and customs are quite different from those of the Han. • The official language in China is Mandarin (Beijing dialect) , as spoken in Beijing , but there are also many different dialects to listen for.
China as a Third World Country • Left behind by European civilizations in the 19th and early 20th centuries, during which it was beset by foreign invasions, military defeats, civil wars and major famines. • China sometimes sees itself as a Third World country, but outsiders sometimes find it puzzling that a Third World country can build its own rockets and nuclear weapons and have advanced research programs in many aspects of science.
About 70 % of the people live in the countryside, and though many parts of rural China are still poor, the Chinese have managed to solve their food problem, achieved a remarkable level of health care, and provided at least primary education for the majority of children. • the world’s second-largest economy behind the United States
②The historical origin and development of “fa” China has a long history with its own unique ‘legal culture’ and conception of law. Yet, for the whole of the twentieth century, the development of Chinese law and legal science was mainly a process of learning from, making use of, absorbing foreign experiences. _____law in China has been a complex mix of traditional Chinese approaches and Western influences.
At the time of transplanting foreign laws in modern China，China has also localized laws by preserving traditional legal ideas， and principles. The traditional Chinese law has undergone continuous development since at least the 11th century BC. This legal tradition is distinct from the common law and civil law traditions of the West.To a great extent, is contrary to the concepts of contemporary Chinese law. 法
the origin of the word 灋,刑也。平之如水,从水。廌所以触不直者去之，从去。摘《说文解字》
Two headstreams of Chinese Law (1) “Xing”, punishment or criminal law, origins from the military law in practice of wars. “刑始于兵” (2) “Li”, was derived from the original sacrifice rites among the ancient clans. “礼源于祭祀”
灋,刑也。 • law of ancient China was derived from martial law． Its advantages lay in fairness，openness and firmness and its disadvantages in harshness and brutality． • All its advantages and disadvantages arose from the same reason，that is，the need of war ．
All-embraced Legal System with the Criminal Law in Pith • Roman law highly developed in civil sense, as contrasted with law that has an all-embracing system of coherent and general rules for the regulations for the society, dealt mostly withcriminal matters, as in China. • The laws in China, for consecutive three millenaries until 1903, were mainly developed in the form of criminal law, with a few civil and administrative regulations as supplements.
五刑 "five penalties": • tattooing, disfigurement, castration, mutilation, and death
xiè zhì(獬豸), an animal looks like a unicorn (独角兽) The animal has a huge horn on the head, which is used to punish criminals and dishonest officials.
Early positive law e.g. Spring and Autumn Period, Zheng state: Book of Punishment《铸刑书》, the first published law in ancient China Warring States Period, Wei State: Canon of Laws 《法经》fa jin, the first systematic feudal law in China, includes six chapters “盗”、 “贼”、”网“、”捕“、”杂“、”具“，the first two about regulations on felonies towards the state and other persons, the third and forth on criminal procedures, the fifth on other crimes and the sixth on principles of criminal law.
a goddess equipped with three symbols of the rule of law: a sword symbolizing the court‘s coercive power; scales representing the weighing of competing claims; and a blindfold indicating impartiality. Lady Justice
Similarities: Both realize that there are many weaknesses in humanity, so we have to rely on God’s sentence and they reflect the pursuit of justice and equity. differences: Lady Justice is blindfolded, which means she can only judge things rationally, not instinctively or emotionally. While in Chinese culture, the judge’s moral character, courage and intelligence usually determine the practice of justice. Western way of “rule by law” and Chinese way of “rule by people” Lady Justice ＶＳ unicorn
③Chinese legal history and legal tradition: Confucianism and Legalism • The Spring and Autumn and Warring State Periods that preceded the unification of Ch’in were times of great social, economic, and political upheavals, as well as the blossoming of many important schools of political, social and legal thought which were to dominate Chinese intellectual history for centuries to come. • Confucianism and Legalism were the most outstanding two of them. The two schools held different views regarding the relative roles of law and morality in society.
Confucianism（儒家思想） the state should lead the people with virtue and thus create a sense of shame which will prevent bad conduct Confucian
Confucianism is in its essence a set of moral and ritualistic norms for the regulation of human relationship. • Among its central percepts are ren (仁，benevolence, moral feeling towards other people or feelings of humanity ), i (义，moral integrity, or consciousness of moral obligation), and li (礼，rites, customs or rules as to proper individual and social conduct).
According to the Confucian vision, in a society where people were governed by li, disputes and conflicts would be easily resolved through friendly negotiation, mediation and mutual compromise. People would not assert their self-interest too full but would instead adopt an attitude of self-criticism, giving concessions so as to arrive a common understanding with the other parties. • In this way, the ideal of social harmony would be achieved.
The Analects of Confucius • 子曰：“道之以政，齐之以刑，民免而无耻；道之以德，齐之以礼，有耻且 格。” • The Master said, "If the people be led by laws, and uniformity sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame. "If they be led by virtue, and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good."
季康子問政於孔子曰：“如殺無道，以就有道，何如？”孔子對曰：“子為政，焉用殺？子欲善，而民善矣。君子之德風，小人之德草。草上之風，必偃。” Ji Kang asked Confucius about government, saying, "What do you say to killing the unprincipled for the good of the principled?" Confucius replied, "Sir, in carrying on your government, why should you use killing at all? Let your evinced desires be for what is good, and the people will be good. The relation between superiors and inferiors is like that between the wind and the grass. The grass must bend, when the wind blows across it."
Legalism Warring States Period Ch’in state, Prime Minister Shang Yang firstly stressed the conception of rule by law. law is to be publicly promulgatedstandards of conductbacked bystatecoercion The common factor in Confucianism and Legalism is that law as used to serve the state , a means of controlling over the citizenry lacking of democracy has long been a problem in China. Han feizi
Law and the Legalists • Neither denied nor objected to the distinction between the noble, the humble, the superior, the inferior, the elder, the younger, the near and the remote • But considered these matters as minor and irrelevant, and even a hindrance to the business of governing • Interested in maintaining legal and political order
Asserted that the governing of a state depended primary upon the rewards which encouraged good behavior and punishment which discouraged bad behavior • Uniform law and uniform reward and punishment: determined by objective, absolute standards which permitted no differentiation on the basis of personal differences
Resemblance:both endorse to different degrees a paternalistic conception of the state • Legalist: Advocated heavy reliance on law as an instrument of government. Legal rules applicable equally to all people irrespective of social rank, and persons in breach of the law should be given strict punishment • Confucian: Argued against excessive use of legal coercion and stressed the merits of government by education, persuasion, and moral example. The subjects should be taught what was right and wrong and inculcated with the li, or the moral and social rules of conduct, so that they would behave properly according to their conscience and not merely because punishment.
Li Versus Law • Similarity: both aimed at the maintenance of social order; • Difference: what constituted an ideal social order and by what means such an order could be attained.
rejecting the other schools confucianism-only ideology • Confucianism did triumph over Legalism in the sense that it was officially accepted as the state philosophy since the Han Dynasty (206 BC-220AD), and remained the dominant ideology in Chinese society until the fall of Ch’ing Dynasty a century ago.
Confucianists believed that differentiation finally lead to a realization of their ideal society based upon the principle of “human relationship”—a society in which the ruler acts as a rule, the minister as a minister, the father, the son, the elder brother, the younger brother, the husband, the wife, etc. • San Gang Wu Chang (三纲五常：three principles & five constants)
三纲五常 1. Three principles A. Emperor is the principle of subjects; B. Father is the principle of son; C. Husband is the principle of wife 2. Five constants: 仁(Ren) kindness; 义(Yi) loyalty; 礼(Li) courtesy & rites; 智(Zhi) wisdom; and信(Xin) trust. Regarded as in the human nature.
德主刑辅，礼刑并用. Moral teaching as the primary means, with punishment as supplement. • From Ming Dynasty onward 明刑弼教，不可偏废. raised punishment as the same important means of ruling along with moral teaching. Some brutal punishment returned ,such as 凌迟, put to death by dismembering the body.
Confucianization of law when Confucianism became the state philosophy, the Confucianists began to interpret and apply the law in accordance with Confucianist doctrines and most important of all, to revise the law by incorporating Li into it. • Confucian doctrines, especially the essential themes of Li, then came to dominate the law
The Role of Law in Society • To implement Li; Subordinated to Li and ethics; Punitive, and invoked whenever Li or moral principles were violated; Played a secondary role • Emphasized on status; Specific as to familial or social status which was the main consideration in the administration of justice; Paid little attention to such matters as individual rights • Litigation discouraged