M5 T1 The Chinese Legal system Flashcards
Which two systems are the most representative of the Far Eastern law?
Chinese and Japanese due to their important position in the current international scene.
What is a major difference between western law and the law of the far east?
In the East, law is seen as oppressive and arbitrary.
What do the people of the far east believe should rule society in the place of law?
Harmony and equilibrium
What are considered to be the proper conducts to safeguard the supreme values of harmony and natural balance?
Conciliation, mediation and agreement
What is the negative view of law supported by:
religious, philosophical and social doctrines
Do legal norms, equal to the western law, aspire to an ideal of justice?
No
Which colonial powers have ruled in China?
Britain and Portugal
How is he Chinese population distributed in terms of rural and urban areas?
Majority are rural people, and 43% are urban, There are major differences between the standard of living between rural and urban people
Which spiritual and philosophical foundations does the Chinese society rest on?
Confucianism built on the ideas of the important Chinese Philosopher Confucius
What is the Confucian thinking focused on?
All living and inanimate things are parts of a harmonic universe. Humans must seek out this cosmic harmony, conduct themselves virtuously in order to not disturb the natural equilibrium of relationships.
How should disputes be resolved?
Through conciliation and mediation
Why do going to court deserve censure?
Insisting on ones own rights tends to exacerbate disagreement and conflict.
What is said to be the quality of a wise man?
Accepting injustice committed against him to preserve his temper
How is the Chinese society structured, and what impact does that have on relations?
It is hierarchical. lower status must respect and abide by his superior
What do the antecendents of the Chinese law date back to?
Imperial China where the emperor exercised total dominion
From what did the emperor’s legitimacy derive?
his divinity
Which penal code is the earliest to be preserved as most have been lost?
The penal code of the Tang Dynasty from the 7th century
Until when did the Imperial law form the basis of the Chinese law?
The fall of the empire in 1911 and the proclamation of the Chinese Republic
What are 5 characteristics of the Imperial law?
- Cosmic order
on the ideas of Confucius. The state should not intervene except from in the event of serious upset of social order. - Public law
focused on the relationship between the government and the citizen, largely ignored relationships between individuals - Coercive rules
penal and administrative nature. Contract was scarcely used. - No doctrine of Subjective rights
- Administered by an authority, a local representative of the emperor, not a judge.
What happened in the mid of the 19th century that brought suffering to the traditional Chinese monarchy as it was incapable of facing the challenges of modernity?
European colonisation reached China. Resulted in wars, inequitable commercial treaties and a political crisis.
How did the empire fall in 1911?
After a revolution
What did the reform of the Chinese legal system under the Government of the Kuomintang led by Chiang Kai-shek include?
- modernisation of the Chinese laws following the Japanese model
- Roman/Germanic basis
- extended to civil and commercial matters and legal procedures
- Private law codified using the German Civil code and the Swiss code as models
- Provisions of Civil law no longer carried criminal penalties
What happened in 1946?
The People’s Republic of China was founded under Mao Zedong after a civil war between the Nationalist government and the communists.
What did the rise of communism mean to law in China?
Law lost the little legitimacy that it had
Under which arguments did the communist party repeal the laws promulgated under the Kuomintang government?
they were “reactionary” and “westernised”
What were the features of the legal system and the concept of law under Mao Zedong?
Marxist view of law
- Saw law as a tool of exploitation by the dominant class
- fundamental norms and principles of the West are considered reactionary and should be rejected.
Marxism says that law is….
A product of society and of the relation of forces within a given society
Which western principles are considered reactionary?
Judicial independence, equality before the law and the presumption of innocence
Which model did the 1954 Chinese constitution copy?
The Soviet model
What affect did the 1956 ratification campaign have for the legal system?
The Communist Party responded with a large scale campaign of repression that affected jurists in particular.
What did the 1956 campaign of repression include?
regulations ceased to comply with the Constitution, and the de facto of the Party leader came to dominate the juridical world.
What happened to lawyers during the Proletarian Cultural Revolution aims at fighting against the capitalist evolution of the country?
They were subject to persecution
What happened to the judicial power and the law faculties in China after 1954?
The judicial power was passed on to mediation committees in order to be used as a power to indoctrinate the masses. The Ministry of justice was abolished and law faculties became faculties of political science.
How did Deng Xiaoping view the function of law, and what happened under his rule?
He saw the law as an important tool of order, and new legislations were proposed and the legal practice was reinforced
Which are the four fundamental ideological principles laid down in the 1982 constitution?
- Leadership: Communist part
- Thinking: Marxism-Leninism and Mao Zedong
- Ideology: Socialism
Can we say that the Chinese constitution has provided gradual economic liberalization?
yes
Which legal family is the basis of modern-day Chinese legislation?
Continental law, specifically that of France and Germany.
Has also started incorporating principles of common law
What are the three historical stages of juridical importance?
- The Imperial era
- The Chinese Republic
- The Communist era of the people´s republic of China
