After their victory, the communists established a formal Soviet-style judicial system, but ideological conflicts between legal scholars and cadres led to the collapse of the system. In the „three anti” (sān fǎn) and „five anti” (wǔ fǎn) movements of 1952, mass public trials with masses of spectators shouting criticism led to the execution and imprisonment of hundreds of thousands of „counter-revolutionaries” without enforcing the formal legal system. During the Cultural Revolution, the judicial system was completely abolished and laws were no longer promulgated. As a result, municipal mediation systems have become increasingly important. The People`s Liberation Army was tasked with monitoring the assessment of cases. Red Guard brigades often forced individuals into self-criticism and sent people to re-education camps because they were „reactionary.” In the mid-1950s, attempts were made to import a socialist legal system modeled on the Soviet Union. But from the beginning of the anti-right campaign in 1957-1959 until the end of the Cultural Revolution around 1976, the PRC did not have most of the characteristics of what might be called a formal legal system. At the end of the Qing Dynasty, concerted efforts were made to establish legal systems based on the European model. Because of the German victory in the German-French War and because Japan served as a model for political and legal reforms, the legal texts adopted were closely modelled on Germany. In general cases, the dispute of foreign investors is settled by the court in China (People`s Court). China`s judicial system consists of four levels of courts, and the dispute cannot be decided by the court more than three times.
These are what we call „four-tier bodies.” Due to the increasing refinement of Chinese laws, the expansion of the rule of law, as well as the influx of foreign law firms, China has also begun to develop a market for legal services. Foreign lawyers have accompanied foreign capital and their clients to China, which has had a huge impact on the enactment of new Chinese laws based on international standards, especially with regard to intellectual property and corporate and securities law. [18] [citation needed for review] For most of China`s history, its legal system was based on the Confucian philosophy of social control through moral education, as well as the legalistic emphasis on codified law and criminal sanction. After the Xinhai Revolution, the Republic of China adopted a largely Western legal code in the tradition of civil law (especially in Germany and Switzerland). The founding of the People`s Republic of China in 1949 brought with it a socialist right-wing system more influenced by the Soviets. However, earlier traditions of Chinese history have retained their influence. [1] When drafting the new laws, the PRC did not copy any other legal system, and the general trend was to enact laws for a specific subject or place. Often, laws are drafted on an experimental basis, with the law being reformulated after several years. This process of piecemeal creation of a legal infrastructure has led to many situations where laws are gaps, confusing or contradictory, and has resulted in judicial decisions with more precedential value than in most civil justice systems. When formulating laws, the PRC was influenced by a number of sources, including traditional Chinese views on the role of law, the socialist context of the PRC, the Republic of China`s German law on Taiwan, and the English common law used in Hong Kong.
During the Qing Dynasty, criminal justice was based on the highly detailed Qing Legal Code. One element of China`s traditional criminal justice system is the idea that criminal law has a moral purpose, one of which is to cause the convicted person to repent and acknowledge his or her mistake. In the traditional Chinese legal system, a person could not be convicted of a crime if he did not confess. This has often led to the use of torture to extract necessary confessions. These elements still influence modern Chinese views on law. All capital crimes were reported to the capital and required the personal consent of the emperor. Since Confucius rejects the general use of formal laws to achieve social order, the voluntary participation of society`s citizens in the search for universally accepted cooperative solutions is crucial to Confucius theory. In addition to voluntary citizen participation, there must also be reasons or bases on which generally acceptable solutions can be found – the concept known as li. Li is generally understood as a set of culturally and socially valued norms that provide guidance for good behavior that will ultimately lead to a harmonious society. These norms are not fixed or immutable over time, but reflect what is accepted at a given time in a particular context. When conflicts arise, the li must be applied and interpreted in order to achieve a just result and restore harmony to society. However, in the absence of a procedural guarantee offered by codified laws, the interpretation of li is subject to abuse.
Chinese law is one of the oldest legal traditions in the world. The core of modern Chinese law is based on Germanic civil law, socialist law, and traditional Chinese approaches. In the last century, China had several constitutions. [13] The first attempts to introduce a constitution in China took place in the last decade (1902-1912) of the Qing dynasty. Different control groups then promulgated different constitutions between this period and the founding of the People`s Republic of China in 1949. The PRC had an interim constitution from its inception until the adoption of its first constitution in 1954. This original constitution was based on the constitution of the Soviet Union. However, it was briefly ignored and became without legal force. Although it provides for the election of the National People`s Congress (NPC) every four years as the supreme state authority, these guidelines have not been followed. The second constitution of the People`s Republic of China, modeled on the ideology of the Cultural Revolution, came into force in 1975. This constitution subordinated the NPC to the Chinese Communist Party („CCP”) and eliminated previous constitutional protections such as equality before the law and inheritance rights to private property. He was also immediately ignored by violating his regulations and failing to comply with AFN policies.
The third constitution of the PRC was adopted in 1978. Although this version has moved away from the ideologies of the Cultural Revolution, it has retained some vestiges. He also retained Communist Party control over the structure of the state. Subsequently, however, the reformists took power, which led to the collapse of this constitution while the emphasis was on economic construction and modernization. The Basic Law of the two regions stipulates that the existing capitalist system and the way of life of the people must remain unchanged for at least 50 years and that the laws currently in force must be maintained. In Hong Kong, the legal system is based on English common law and Macau on Portuguese civil law. After the victory of the Communists in 1949, the newly formed People`s Republic of China (PRC) quickly abolished the legal systems of the Republic of China and attempted to create a socialist system of law, which was copied by the Soviet Union. With the Sino-Soviet split (1960-1989) and the Cultural Revolution (1966-1976), all legal work was suspected of being counter-revolutionary and the legal system completely collapsed. A new concept of justice called legal populism (sifa dazhonghua[11]) has been established. Instead of requiring judges to follow strict judicial procedures, it has promoted substantive justice and problem-solving mechanisms. [12] This legal tradition is based on a cultural vision of the non-finality of justice as well as on the revolutionary practice of the Communist Party, which is based on the justice of the people. [12] According to conventional wisdom in the West, there were few formal laws in China before the 20th century, and what did exist was primarily criminal in nature.
In fact, this characterization represents the breadth and sophistication of law and legal institutions in pre-20th century China. S. S. It invokes contempt for legality in general, obsession with punishment and fails to recognize both the various premises that have shaped Chinese law and the various roles it has played in Chinese society. Unlike other civil jurisdictions, the PRC has not yet consolidated its civil law into a single code. However, the legislative plan provides that the branches of civil law must first be promulgated as separate laws and then merged into a comprehensive civil code. So far, the National People`s Congress has promulgated matrimonial law, adoption law, inheritance law, patent law, copyright, contract law, real law, tort law. The most recent law is the Law of the People`s Republic of China on Foreign Civil Relations Laws, which was adopted on October 28, 2010. The first part of the future Civil Code would consist of general provisions based on the current general principles of civil law adopted in 1986. Unlike Confucius` li-based theory, legalism advocates the application of codified laws and harsh punishments to achieve social order.