CHINESE LAW

TRADITIONAL CHINESE LAW

The role of the law is marginal

The invocation of rights is considered to be an egoist behaviour

The approach to litigation: in case of a dispute it is amicable resolution that is encouraged;

at worse, the intervention of a mediator or an arbitrator. The recourse to a judge is only
admitted when the alternative dispute resolution tools have failed.

Sources of law
• Li = the rules of proper behaviour
• Fa = legislation

The archaic Li : (it referred in a fist time a religious ritual; then it became a rule of conduct
for private and public activities.

Modern Li: the li has been given a new legitimacy as the expression of the moral authority of
ancestors end has been put into writing under the form of soft law.
The li regulates the succession to the throne and provides for the essential needs of “noble
law”

The knowledge of the li is strongly encouraged

The fa: such source is surrounded by mistrust. If somebody invoked a fa inconsistent with a
li, it would be subject to the reprobation of the public opinion.

The social hierarchies, duties and virtues

The order of Chinese society is widely committed to the fen, the principle of distributive

The fen assure the inequality among individuals

At the basis of society, lies the family, united and clan like

Confucians v. Legists
• Confucians believed that men were inherently good natured and could be brought to
virtue by education and by the example of the rulers.
• Legists believed that men were inherently bad and selfish, therefore needed strict
discipline.
• Confucians believed that all men should be treated according to their status, i.e. their
place in the world.
• Legists believed that all men are equal before the law and that the proper behaviour
should be taught through severe criminal sanctions.

The Ts’in dynasty and the triumph of Legists (221 b.C.)

The dynasty took power and established a strong centralised administration, enacted
The Han dynasty and the re-rise of Confucianism (206 b.C.)
The Han dynasty took power and restored Confucianism as the official ideology of the
Empire.

Legislation – the ‘Fa’

Confucians admitted that legislation was a necessary evil. Several codes were enacted, most
of all to regulate criminal and administrative law.

The judiciary
State courts held by imperial officers in the capital cities of the provinces or regions: not
often used.
At a local level, the most prominent or wise persons in the community served as conciliators.

THE CHINESE SYSTEM (MODERN LAW)

MODERNE CHINESE LAW

In XIX century the contacts between China and the Western world have been intensified and
this lead the Chinese empire to reform traditional codes with the help of Chinese jurists
educated in Europe and of Japanese jurists. Such efforts resulted into the translation of
western models.

In 1911 the last emperor of China abdicated in favour of the Republic.

The government, supported by the Guomindang (the nationalist party), promulgated 6

codes:
1. Constitution (1931, 1936, 1947)
2. Civil code (1929-1930, German, Japanese and Swiss models)
3. Code of commerce
4. Criminal code (1912, 1928, 1935, modelled on the Italian pen. cod.);
5. Civil procedure code
6. Criminal procedure code
To the list we must add rural laws, company law; credit instruments; maritime trade;
insurance law.

Precedents were a source of law

The judicial system was organised on 3 levels
There was no jury.

Though, codes have remained stranger to the Chinese tradition and have never deeply
penetrated into the life of Chinese people (except in the towns of the coast).

The codes, as well as the other statutes, were abrogated in 1949 (except in Taiwan) after the
raise of the communist party and the foundation of the People’s Republic of China.
In September 1949 the communist party promulgated a Constitution (common programme)
in 60 articles, that founded the People’s Republic of China, an alleged State of popular
democracy.
The pillar of the system was the proclamation of the supremacy of the working class, made
of labourers and peasants. All the citizens were entitled to vote for the elections and to
other political rights.

The common programme was hiding a crucial element: the country was totally subject to the
party and the actions of this latter were without appeal.

The political will of the party (and its execution through the internal bureaucratic hierarchy)
was enough to regulate Chinese public life.

No need to have a system of statutes: the will of the party had the rank of written, positive,
ideological law, applied in a flexible way, with a significant margin of discretion, if not whim,
by the party officers.

The regime was grounded on the repression of all deviations and resistances, which imposed
a heavy recourse to legal remedies.

The model was that of Russian socialist economy

Thus, the socialist model revolves around the distinction between means of production
(land, fixed and circulating capitals…) and consumption goods,

As a matter of principle, means of production must belong to the State

The compromise has been the adoption of the soviet model, but formalised through the
promulgation of statutes, namely several codes and a constitution, imitating the ones
promulgated by Stalin. This model has lasted until 1976
HINDU LAW

Hindu law applies to all persons that are Hindus regardless the nationality or domicile, i.e. all
who accept the complex mass of religious, philosophical and social ideas referred to
Hinduism.

Hindu law applies to all people racially derived from the the population of India except
adherents of the Islamic, Christian, Jewish or Parsee religions.

It is a religion-based legal family

Hinduism encompasses a plurality of different rituals.

Fundamental belief: the doctrine of soul migration (Kharma), according to which the after
life was influenced by the actions of the past life.
Cast system: a corpus of rules that regulate the duties and conduct towards other cast
members and towards other casts.
• The casts were ruled by the principle of purity: see the delicate problem of the
‘paria’, i.e. outcasts.

Main casts
1. Brahmins = priests or highly educated people
2. Kshatriyas = warriors
3. Vaishyas = tradesmen
4. Sudras = servants and craftsmen

Primal sources of law

Veda: ancient books containing religious songs, prayers, hymns and sayings recorded in
different times.
Smritis: law books recollecting the reminded wisdom of ancient priests and scholars.
Dharmasutras: set of rules for the cast members.