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  Wikipedia: Chinese law

Wikipedia: Chinese law
Chinese law
From Wikipedia, the free encyclopedia.

Chinese law refers to the law of China.

Imperial era

Contemporary social control is rooted in the Confucian past. 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.

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.

This basic legal philosophy remained in effect for most of the imperial era. The criminal code was not comprehensive and often not written down, which left magistrates great flexibility during trials. The accused had no rights and relied on the mercy of the court; defendants were tortured to obtain confessions and often served long jail terms while awaiting trial. A court appearance, at minimum, resulted in loss of face, and the people were reluctant and afraid to use the courts. Rulers did little to make the courts more appealing, for if they stressed rule by law, they weakened their own moral influence.

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.

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

Law in the People's Republic of China (Mainland China) contemplates both a formal system of social control by the a legal system and a complementary system of informal social control. This is derived both from traditional principles of Confucianism and from socialist theory.

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 rift with the Soviet Union 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.

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, although many persons are still incarcerated for that crime. Criminal procedures reforms also encouraged establishment of a more transparent, adversarial trial process. The PRC constitution and laws provide for fundamental human rights, including due process, but theses 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.

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From Wikipedia, the free encyclopedia. 
Modified by Geona