Commentary
By Daniel Chang, Solicitor and Head of Chinese Legal Division at Ross Holmes Lawyers
“The life of the law has not been logic; it has been experience.” (Oliver W. Holmes)
It is hard, if not impossible, to understand the laws of a nation without knowing its history. At the end of the day laws are rooted from the collective life experience of people.
Traditional China: As an ancient civilization with thousands of years of history, China had its own legal system with unique features. The most influential code was promulgated in the great Tang dynasty, around 1400 years ago. The Chinese legal system was widely recognized as one of the five major legal systems in the ancient world.
Reform in the Qing Dynasty: In the 19th century, China was, reluctantly, dragged into the globalization process, and thus facing the biggest challenges the Chinese civilization ever had: the rising capitalism and industrialization. The ancient empire had to adjust itself in order to survive in the modern world.
From 1840 the Qing government lost most of the wars and had to sign a series of treaties with the Western nations. Beijing, the capital of the Qing Empire, was conquered by the Eight Nations Alliance force due to the Boxer rebellion in 1900. The Qing government signed the Boxers Protocol in 1901 to pay indemnity of 67 million pounds to the eight Western nations. In order to stay in power, there is no other choice for the Qing government but for a thorough reform adopting Western systems, at least pretending to do so.
From 1902 till the collapse of the Qing Dynasty in 1911, great efforts were made to modernize the Chinese legal system. With the assistance of mainly Japanese legal scholars, the newly created Ministry of Law Reform drafted various modern codes, such as “The Qing Current Criminal Code”, “The Qing New Criminal Code”, “The Qing civil and criminal Procedure Law”, “The Qing Business Law” etc. Some of the new bills were enacted into law. Most were still in drafts when the revolution turned China into a republic in 1911.
The Complete Collection of Six Laws: During the period from 1911 to 1927, China actually fell into the hands of various warlords. None of them had the energy or ability to pay much attention to China’s legal reform. In 1928, China was united again under the Nationalist government, law reform once again became part of the agenda of the central government. For the first time in Chinese history, a comprehensive modern legal system was established.
Like the legislation drafted in the late Qing period, the Nationalist legal system followed the Roman law model, rather than the Anglo-Saxon system. The laws were organized into six different categories, i.e. Constitutional Law, Criminal Law, Civil Law, Criminal Procedure, Civil Procedure and Administrative Law. Thebooks containing all those statutes were called “The Complete Collection of Six Laws”.
The Communist rule: In 1949, it became clear that the Nationalists were losing the war against the Communists. In February 1949 the Communist Party declared that, the Nationalist legal system including the Complete Collection of Six Laws, be abolished totally. The Communist Party represented a totally different ideology from that of the Nationalists. The abolition of the Complete Collection of Six Laws was taken as one of the necessary steps to reinforce the Communist ideology and eradicate the legitimacy of the Nationalists rule.
During the first nearly 30 years of the Communist rule, law was regarded inferior to state/party policies. And in a centrally planned economy, there was not much need for legal rules balancing different interests/rights within the society. According to the Communist legal theory, law merely reflects the will of the ruling class, and is a tool of the ruling class to rule other classes.
Reform and Opening-up: Chinese legal history turned a new page when Deng Xiao Ping stepped into power in 1978. Opening up and reform became the main theme of the new era. Theparty leaders who had suffered during the Cultural Revolution realized that, a good legal system is vital to achieve and maintain the peace, order and good government. At the same time, the centrally planned economy was gradually replaced by a market economy. “Market economy is the economy based on the rule of law” is widely accepted as consensus among the elite class.
The list of legislation during the past 30 years has been impressive, to name a few: the Criminal Procedure Law (1979), the Crimes Act (1982, 1995), the General Principles of Civil Law (1986), the Copyright Law (1991), the Civil Procedure Law (1991), the Companies Act (1993), the Insurance Law (1995), the Contract Law (1999), the Securities Act (1999), the Property Law Act (2007), the Law of Torts (2009). In 2011 the People’s Assembly of China declared that a complete modern legal system is now in place.
It took China more than one hundred years to get to this point. Although it is still a long and hilly road ahead for China to become a country of “the rule of law” and further reform of the legal system is still needed, the achievements in the legislative area are quite remarkable along with China’s economic success.
Daniel Chang is a solicitor and Head of Chinese Legal Division at Ross Holmes Lawyers based on the North Shore in Auckland. Daniel has an LLB (First Class Honours) from the University of Otago and an LLM in China, where he also worked as a lecturer and lawyer.
To share your sector knowledge on China please contact Luke Qin at luke.qin@nzcta.co.nz
Jul 12, 2012