30 May 2013

听一下: The Nine Bronze Cauldrons – the Dings and the First Written Laws

The first Chinese law was the 禹刑 (yu xing), unwritten criminal law of the 21st century B.C. The historical record paints harsh system: any person caught scolding their elder could suffer the death penalty, and treason by one member resulted in the conviction of entire families. The penalties for petty crimes ranged from hard labour to castration and feet amputation. In fact, later accounts allude to the possibility that the early administrations deliberately chose not to put their punishments and penalties into writing, for fear of creating contentiousness amongst their subjects.

Fast forward to 536 B.C. The first Chinese statutory law, 刑鼎 (xing ding) was codified, published and cast into a bronze tripod cauldron (note this is 200-500 years earlier than enactment of the Twelve Tables, the first codified statutory laws of Ancient Rome).

We are in the era of the Warring States, in the midst of the Bronze Age. Enter our protagonist: Yu the Great, first King and controller of the Yellow River flood.

China was a vast and dynamic country, ruled by the whims of the earth, with floods and droughts to rival the capriciousness of the Nile in Egypt. Independent states warred against each other. Then Yu came along, beginning the long reign of the Xia Dynasty when he tamed the Yellow River. From the lands wrestled from the elements, he carved out Nine Provinces and demanded bronze tribute from each. Yu, partial to his legacy, made certain to showcase his power by casting nine tripod cauldrons – previously a religiously reserved form used only for food offerings to the gods – from the bronze he received. In one masterful stroke, Yu appropriated the use of the ding (it is a testimony to the antiquity of this vessel that the character for it actually pictographically resembles it: 鼎); the tripod bronze cauldron that had once been reserved only as a vessel to offer tribute to the gods was now a symbol of power and ultimate authority.

In the political and cultural upheaval that followed his reign, the Nine Tripod Cauldrons became legend. From the measured whims of Yu sprung an entire branch of etiquette. Only an Emperor could flaunt nine dings. Feudal lords, one below on the ladder could amass no more than seven, ministers five and the scholarly gentry three or one. The ding had become a status marker. And so when Yu went to codify his laws, he placed them right on his tribute-cast cauldrons.

The dings survive today. At the door of the JunHe Offices – one of the oldest and most prestigious law firms in China -, two massive dings stand in silent vigil. In the atrium of the MingDe Law building at RenMin University, an intricate ding catches the sunlight reflections of the many bronze murals that decorate the walls. Their legacy is even preserved in the spoken word: to compliment a lawyer, tell them their words are “一言九鼎” (“the weight of nine tripod cauldrons”), i.e. their character is beyond reproach. Yu would have been proud. 

KEYWORDS: Chinese Legal Culture, Chinese History

PLACES: JunHe Law Offices, RenMin University

29 May 2013

问题: The 1930 Chinese Civil Code in the German Tradition

German influence is a recurring theme in the study of Chinese law. Contract law, Foreign Investment Law, IP Law, Company Law…and I do not doubt this pattern shall continue. The interesting question is: why? Entire papers are written on this subject. In an effort to oversimplify and be brief, I will focus on the Chinese Civil Code drafted in 1930.

First, a bit of history. During the late Qing Dynasty, Emperor Guang Xu mandated the formation of a special legislative committee: hand-picked legal experts to draft a brand new civil code for China. The sunset days of the Qing Dynasty were the days of the imperial invasion; after the Opium War in 1840, China was opened to the world by the West. The existing legal system of China was to be re-hauled and ‘modernized’, integrating foreign and domestic practices. In 1928, upon the founding of the National Government of the Republic of China, a legislative council charged with codifying a civil law was formed following Guang Xu’s model.

The civil code that was published in 1930 and still exists in Taiwan today is essentially a copy of the German BGB; cut and pasted from the civil codes of Continental Europe. Mei Zhongxie, a legal scholar from Taiwan, shows that 60-70 % of the provisions in the new civil code are imported from the German BGB, 20-30 % from the Swiss and the rest of the provisions lifted from the civil codes of France, Japan and the Soviet Union. 

Why copy foreign codes? These codes were not suited to Chinese society; they spoke of inspiration rather than a deep insight into Chinese society. The result was a law disconnected from local customs, traditions and philosophy.

The legislative committee looked to the Continental-European system for three primary reasons. One, they saw Europe as the future of China, and so sought to adapt to what they believed the reality of Chinese society would be. China of 1920s was an agricultural society; the legislative committee wanted a legal system for the industrial and commercial society China would transform into. Two, foreign materials were clear while Chinese legal knowledge was scattered. The civil code would have to strike a balance between the effort to simplify the code (so that it could be promulgated in a wide way) with the effort to be thorough (the document still had to be comprehensive); a hurdle the European codes had already jumped. Third, the legislative committee had a deadline to meet. 
Currently, the PRC is looking to reform the Chinese Civil Code. The professors at RenMin University all agree: this time around, the government should not cut corners. If the civil code is to be successful, it must be based on profound theoretical study and broad perspective, requiring practical civil adjudicative experience and a deep insight into actual Chinese society. 

REFERENCES: “From an Integration of Western and Chinese Legal Norms to Comparative Legislation: Codification of the Civil Law of the Republic of China” Zhang Sheng (China Legal Science, Vol. 1, No. 2, May 2013).

KEYWORDS: Chinese Legal Culture, Qing Dynasty, Civil Code, BGB, Germany, Republic of China

27 May 2013

上课: One for All and All for One, the Character of the Chinese System of Law

There are five legal families recognized by legal scholars: the civil law, the common law, Islamic law, Hindu law and Chinese law. Of course, other legal systems are sometimes added to the list – e.g. socialist law – while yet other classifications condense the legal families into just three: civil, common and religious. The modern Chinese law borrows from three legal families – civil, common and Chinese – and so I will attempt to briefly skate over the three here.

The civil law and common law are most easily differentiated when compared based on their sources. The civil law comes from Roman law (The Code of Justinian) and is characterized by laws that are written, codified and not determined by judges. Customs, practical realities – Germanic, ecclesiastical, feudal and local -, and prevailing thought – natural law and legal positivism – meshed with Roman law to form the Continental-European tradition of law. In that sense, it is often referred to as Romano-Germanic law. Civil law draws from abstractions (and thus has an inquisitorial court system – that is, a system where the court is actively involved in ascertaining the facts of a case) and distinguishes substantive rules from procedural rules.

The common law system finds origins in the Norman Conquest of Britain in the 11th century. It is commonly referred to as Anglo-American law. As opposed to the civil law, the common law is a judge-made law. Cases are the primary source of law, acting alongside legislative laws and statutes. Law is based on the rule of stare decisis: the principles and rules established by the court in previous cases are binding (or at least persuasive) on the courts in subsequent similar cases. Furthermore, the court system is an adversarial system, not an inquisitorial one: the court is a neutral arbitrator between the prosecution and the defence. Thus, lawyers play the role of interrogators and judges are understood as the creators of the law. Judges are chosen from the ranks of lawyers, unlike in the civil system where judges follow a separate training regime.

Chinese law refers to the ancient legal tradition of China and other Asian countries which had close relations with China. The ideology defining this legal system is the outcome of Confucian thought: law serves to reinforce roles and as a means of social control. Confucian philosophy strives for harmony, opposing the use of excessive legal coercion and instead advocating education and moral examples.

The modern legal system in China folds together all three of the above systems. Primarily based on the civil system as a result of the codification of law under the Republic of China in 1930, common law principles do find a way into the system. Where the inquisitorial system still reigns in theory, judicial reform has practically instituted an adversarial system in the people’s courts (so that the parties and their lawyers, rather than the judges, take on the active role). The prevalence of the informal legal system – using mediations as a means of solving civil disputes, where personal relationships are paramount – is testimony to Confucian thought.

All for one and one Chinese system for all legal traditions. Now the fundamental question…does it work?

KEYWORDS: Legal Families, Chinese Legal Culture, Civil Law, Common Law, Chinese Law

22 May 2013

上课: The Dark Ages, the Black Abyss or 1949-1978 China

All professors of Chinese Law – or at least those giving a general overview of the system – preface their forays with an allusion to the dark abyss from which the modern Chinese law sprung. 

Okay, so perhaps I am being a bit melodramatic. Constitutional Law and the Law of Marriage did exist between the years of 1949-1978. In fact, Constitutional Law was an active project during those years. The National People’s Congress has enacted four Constitutions since 1949: the 1954 Constitution, the 1975 Constitution and the 1978 Constitution all leading up to the current working Constitution of 1982, which has been amended itself four times (in 1988, 1993, 1998, and 2004). 

However, the legal system itself was essentially outlawed (paradox if there ever was one). Political decisions were not required to comply with the Constitution and government actions were often taken outside areas regulated by the latter. Furthermore, the courts themselves were more puppets up for show than anything else. Legal education and the legal profession were destroyed. Without legal experts or lawyers or judges, there was no one to advocate a rational formal system or, in fact, draft one. 

In 1979, the siege ended and a scramble to set up a functioning legal system initiated the reform and opening up of China. The primary focus was the economy. The method, an organized madness: laws were issued for specific topics and locations, drafted on a trial basis and then redrafted later. Efforts were made to professionalize and rationalize the judiciary and legal profession after nearly thirty years without a formal legal education system. 

The darkness before the birth of the modern legal system has important repercussions. Mediation is an important way to handle civil disputes, a legal education is not a requirement to take the bar, and the legislature, not the Constitution, reigns supreme. 

Let it not be said that legal history is ever irrelevant.

KEYWORDS: Chinese Legal Culture, Chinese History, Constitutional Law, Opening Up