The origin of the current law of the People's Republic of China can be traced back to the period of the early 1930s, during the establishment of the Chinese Soviet Republic. In 1931 the first supreme court was established. Though the contemporary legal system and laws have no direct links to traditional Chinese law, their impact and influence of historical norms still exist.
In the period between 1980 and 1987, important progress was made in replacing the rule of men with the rule of law. Laws originally passed in 1979 and earlier were amended and augmented, and law institutes and university law departments that had been closed during the Cultural Revolution were opened to train lawyers and court personnel. It was only a beginning, but important steps had been taken in developing a viable legal system and making the government and the courts answerable to an invisible standard.
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.Farah, Paolo Davide, The Influence of Confucianism on the Construction of the Chinese Political and Juridical System (L'influenza della concezione confuciana sulla costruzione del sistema giuridico e politico cinese) (2008). IDENTITA EUROPEA E POLITICHE MIGRATORIE, Giovanni Bombelli, Bruno Montanari, eds., pp. 193-226, Vita e Pensiero, 2008. Available at SSRN: http://ssrn.com/abstract=1288392 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 BCE. There were also civil statutes, mostly concerned with land transactions.
Legalism, a competing school of thought during the Warring States period (475-221 BCE), 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 first imperial dynasty, the Qin (221–207 BCE).
The Han dynasty (206 BCE – CE 220) 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 only lawyers but all around legal professionals trained in philosophy and literature. The first recorded professional who served as a lawyer was Deng Xi (c.545BC - c.501BC), a criminologist who also published the "Bamboo Law", which was one of the earliest statutes in history. The local, classically trained, Confucian gentry played a crucial role as arbiters and handled all but the most serious local disputes.
In the final years of the Qing dynasty (1644–1911), reform advocates in the government implemented certain aspects of the modernized Japanese legal system, itself originally based on German judicial precedents (see Hundred Days' Reform). These efforts were short-lived and largely ineffective. China was also a site of experimentation in extraterritoriality, including via the Shanghai Mixed Court (1864–1927).
Republican China
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 Nationalist forces were able to suppress the warlords and gain control of most of the country (see Republican China). Established in Nanjing, the Nationalist government attempted to develop Western-style legal and penal systems. Few of the Kuomintang 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 Nationalist government became preoccupied with the Communist forces and Japanese invasion.
Development after 1949
According to Chinese Communist Party (CCP) ideology, the party controlled the state and created and used the law to regulate the masses, realize socialism, and suppress counterrevolutionaries. Since it was the CCP's view that the law and legal institutions existed to support party and state power, law often took the form of general principles and shifting policies rather than detailed and constant rules. The Communists wrote laws in simple enough language that every individual could understand and abide by them. Technical language and strict legal procedures for the police and the courts were dispensed with so as to encourage greater popular appreciation of the legal system.
Moreover, Mao Zedong maintained that revolution was continuous, and he opposed any legal system that would constrain it. Whereas Western law stressed stability, Mao sought constant change, emphasized the contradictions in society, and called for relentless class struggle. In this milieu, the courts were instruments for achieving political ends, and criminal law was used by the party to conduct class struggle. The emphasis was shifting constantly, and new "enemies" were often identified. Mao believed it unwise to codify a criminal law that later might restrain the party.
The Maoists wanted the administration of justice to be as decentralized as possible in order to be consistent with the "mass line." Neighborhood committees and work units, supervised by local officials, used peer pressure to handle most legal problems in consonance with current central policies. The police and courts were left to handle only the most serious cases. In both traditional and contemporary China, political and legal theory tended to support such methods. Mao was unconcerned that a person contesting the result of a group decision had nowhere to go for redress.
After 1949, the CCP also greatly altered the character of the legal profession. A number of law schools were closed, and most of the teachers were retired. Legal work was carried on by a handful of Western-trained specialists and a large number of legal cadres hastily trained in China. From the beginning these two groups disagreed over legal policy, and the development of the legal system reflected their continuous debate over both form and substance.
The Western-trained specialists were Kuomintang-era lawyers who chose to cooperate with the Communists. Because they were considered politically unreliable, the CCP initially ignored most of their arguments for a modern legal system. As the 1950s progressed, however, this group was instrumental in China's adoption of a legal system based on the system of the Soviet Union. In general, the specialists wanted codified law, enforced by a strict Soviet-style legal bureaucracy. Without such procedures, they felt, there would be too much arbitrariness, and eventually the legal system would become ineffective. Many of these specialists passed from the scene when the Soviet model was abandoned in the late 1950s, but some became CCP members and gained influential positions.
In the first thirty years of the People's Republic, the new legal cadres—chosen more for their ideological convictions than legal expertise—conducted the day-to-day legal work. These cadres favored the Maoist system of social and political control and regarded themselves as supervisors of the masses who subscribed to a common set of communist values. The new cadres saw this common ideology as providing better overall direction than strict legal controls could. They believed that China was too large to be governed by any single set of fixed rules or a legal bureaucracy. They preferred to administer justice by simplified directives tailored to the needs of local communities so that the people (and the new cadres) could participate fully in their implementation. As part of this plan, the cadres organized "study groups" to familiarize every citizen with current directives and circulars.
Most cultures agree that the purpose of criminal law is to control deviancy—the Chinese traditionally have sought to do so through peer groups rather than through the courts. This practice continued after 1949. Ideally, peers helped the deviant through criticism or shuofu (persuading by talking). The stress was on education and rehabilitation, a policy linked to the Confucian and Maoist tenet that, with patience and persuasion, a person can be reformed.
Early years of the People's Republic (1949–1953)
In 1949, the CCP abolished all Kuomintang laws and judicial organs and established the Common Program, a statement of national purposes adopted by a September 1949 session of the Chinese People's Political Consultative Conference, as a provisional constitution. Under the Common Program, 148 mainly experimental or provisional laws and regulations were adopted to establish the new socialist rule. The most important and farreaching of these laws dealt with marriage, land reform, counterrevolutionaries, and corruption. A three-level, single appeal court system was established, and the Supreme People's Procuratorate and local people's procuratorates were instituted. The procuratorates were established to ensure that government organs at all levels, persons in government service, and all citizens strictly observed the Common Program and the policies, directives, laws, and decrees of the people's government. They also were to investigate and prosecute counterrevolutionary and other criminal cases; to contest illegal or improper judgments rendered by judicial organs at every level; and to investigate illegal measures taken by places of detention and labor-reform organs anywhere in the country. They were to dispose of cases submitted by citizens who were dissatisfied with the decision of "no prosecution" made by the procuratorial organs of lower levels and to intervene in important civil cases and administrative legal actions affecting the national interest.
The period 1949-52 was one of national integration in the wake of decades of disunity, turmoil, and war, and included efforts to bring the diverse elements of a disrupted society into line with the new political direction of the state. The land reform movement of 1949-51 was accompanied, in 1950, by the movement to suppress counterrevolutionaries. In 1952 the san fan ("three anti") movement opposed corruptions, waste, and bureaucratism, while the wu fan ("five anti") movement rallied against bribery, tax evasion, theft of state assets, cheating on government contracts, and theft of state economic secrets (see Three-anti/five-anti campaigns). During this period, few cases were brought to court. Instead, administrative agencies, especially the police, conducted mass trials with large crowds of onlookers shouting accusations. Hundreds of thousands were executed as a result of those "trials," and many more were sent to prison or to labor camps. In the relatively few cases that were tried in formal courts, court records gave little indication as to what laws were used as a basis for the judgment.