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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Serie: China Today
- Sprache: Englisch
China’s struggle for the rule of law is at a critical juncture. As a key element of governance in the PRC today, China’s legal system affects not only domestic affairs but also China’s engagement with the world. But can a credible legal system emerge which protects the rights of citizens and international partners without undermining the power of the Party State? And is the Chinese Communist Party willing to embark on judicial reforms that may jeopardize its very survival?
Understanding the PRC legal system is increasingly important as China rises to prominence in the world. In this compelling analysis, noted legal scholar Pitman Potter examines the ideals and practices of China’s legal regime, in light of international standards and local conditions. Against a rich historical backdrop, Potter explains how China’s legal system supports three key policy objectives; namely, political stability, economic prosperity, and social development. In exploring these competing policy goals and the tensions between them, he also raises fundamental questions about government expectations of the role of law in regulating local and international socio-economic and political relationships.
This wide-ranging and readable introduction will be an invaluable guide for students and non-specialists interested in China’s ongoing process of legal modernization.
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Seitenzahl: 364
Veröffentlichungsjahr: 2014
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Table of Contents
Cover
Series page
Title page
Copyright page
Dedication
Map
Tables and Figures
Chronology
Acknowledgments
Author's Note
Introduction
1: Development of the Socialist Legal System
I. Historical Foundations for PRC Law
II. Transition to Law in the PRC
III. Law and Political Conflict
IV. Post-Mao Legal Reform Under Deng Xiaoping
V. Local and Global Contexts for China's Socialist Legal System
Summary
2: Political Stability
I. The Centrality of Party Leadership
II. Constitutional Arrangements
III. Legal Institutions
IV. Protecting Stability: Law and Social Control
Summary
3: Economic Prosperity
I. Local Conditions and Practices
II. Approaches to Law and Development
III. Support for Development: Contract and Property Law
IV. Managing Development: Taxation and Regional Development
Summary
4: Social Development
I. Traditional Party/State Priorities
II. Emerging Priorities in Social Development
Summary
5: International Engagement
I. Changing Perspectives on International Law
II. Foreign Business Relations
III. Participation in International Governance Regimes
Summary
Conclusion
References
Index
China Today
Creative Industries in China, Michael Keane
Urban China, Xuefei Ren
China's Environmental Challenges, Judith Shapiro
Copyright © Pitman B. Potter 2013
The right of Pitman B. Potter to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2013 by Polity Press
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ISBN-13: 978-0-7456-6268-8
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ISBN-13: 978-0-7456-7216-8(epub)
ISBN-13: 978-0-7456-7217-5(mobi)
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For my students, from whom I have learned so much
Tables and Figures
Tables
1.1:Comparison of Jiangxi Soviet, Jin Cha Ji Border Region, and PRC Laws1.2:Judicial Case Loads in 20101.3:CIETAC Arbitral Case Loads – Cases Accepted by CIETAC (Foreign-Related and Domestic)2.1: NPC Organization2.2:State Council/Administrative Agencies2.3:Licensed Lawyers in China5.1:WTO Complaints in Comparative Perspective
Figure
2.1: Court StructureChronology
Acknowledgments
I would first like to thank Polity Press for their invitation and particularly David Winters for his steadfast support for the preparation of this volume. Research for this volume was supported by the Major Collaborative Research Initiative (MCRI) program of the Social Sciences and Humanities Research Council of Canada (SSHRC), for which I am deeply thankful. Several graduate students at UBC contributed significantly to the success of this project, including Erika Cedillo-Corral, Maggie Juan Li, Liu Huan, Liu Yue, Matthew Nickelmann, and Hanna Yang. I offer my deepest thanks to two anonymous readers, as well as to Alison Bailey, Timothy Cheek, Stanley Lubman, and Sophia Woodman for reviewing and commenting on the manuscript. The Faculty of Law at UBC has been unfailingly supportive of this project, for which I remain sincerely grateful. In particular, I would like to thank Rozalia Mate and Abbey Barley at the Faculty of Law for their ongoing administrative assistance. I would also like to thank my colleagues at Borden Ladner Gervais LLP for their longstanding encouragement and support. For those whom I may grievously have neglected to mention, I can only offer my apologies and deepest thanks. Naturally I remain responsible for the errors and omissions that no doubt remain.
Pitman B. Potter
Vancouver, Canada
February 2013
Author's Note
This text concerns the legal system of the People's Republic of China (PRC), and does not examine the laws of Taiwan, Hong Kong, or Macao. While these jurisdictions are considered part of “Greater China” and in the cases of Hong Kong and Macao are within the territorial boundaries of the PRC, common international usage generally equates China with the PRC. Accordingly, we have elected to use the term “China” in the title of this volume to denote the People's Republic of China.
Introduction
The legal regime is a key element of governance in the People's Republic of China (PRC) today. Law in China remains very much a contested domain of conflicting concepts, policies, and practices. Scholars of Chinese legal studies have generated broad understanding of the PRC legal system and offered useful perspectives on its origins and operation. Jerome Alan Cohen's pioneering work on the PRC criminal justice system and many other topics combined with the work of Stanley Lubman, R. Randall Edwards, and William Jones to provide a scholarly foundation for understanding law in the early PRC.1 Their work continues to influence studies of contemporary Chinese law. Stanley Lubman, for example, has been a key participant in a broad debate over whether the PRC legal system satisfies the criteria of objectivity and autonomy required for the rule of law, or whether it matches notions about a “thin rule of law.”2 With greater possibilities for living, working, and doing research in China, China law scholars have been able more easily to study the operation of the PRC legal system at the local level.3 Detailed studies of many areas of China's civil and commercial law, property, contracts, criminal law and procedure, judicial institutions, international trade and investment, and many other areas have vastly expanded international understanding of the PRC legal system.4 As well, the burgeoning community of PRC scholars conducting research and analysis on China's legal system has contributed to our knowledge in many important ways.5 This volume is informed by much of this work.
Set against an historical tradition where law in China was an instrument of state rule and punishment, law in the PRC today serves primarily as an instrument of rule for the Communist Party of China (CPC). The PRC legal system is aimed first and foremost at protecting the power of the Party/State – that expansive network of bureaucratic and political organs responsible for administration and governance even as they remain subject to the leadership of the CPC. Other priorities include protection of private civil relationships of contract and property, supporting economic development, safeguarding of social interests and human rights, supporting further engagement with international institutions, and international trade and investment relations. The operation of law in China can be understood largely in light of tensions between these priorities and the imperative of Party/State power.
As well, students of law in the PRC need to be aware of the important gaps between laws and regulations on the books and in action. As a policy instrument, law in China is constantly subject to interpretation and intervention by central and local level officials of the Party/State. The application of legal and regulatory requirements to individuals and enterprises often depends on political priorities and relationships rather than on the text of the law itself. Whether in the area of constitutional rights, economic regulation in matters such as contracts and property, or social development issues of labor relations and environmental protection, the realities of legal performance often differ substantially from the content of laws and regulations. The courts too are affected by the political environment in which law operates – judicial decisions are often reviewed and amended by committees chaired by Party officials (so-called “Adjudication Committees”) before going into effect. Local enforcement of laws and regulations enacted for national application is often inconsistent, as local political and policy priorities affect interpretation and implementation. Just as China's interaction with international rule of law standards reflects dynamics of interpretation and application based on local conditions, so too is local implementation of central government edicts (including laws and regulations) subject to variation according to local imperatives. With these complexities in mind, this research and learning guide will provide a general introduction to the PRC legal regime, focusing on opportunities and challenges that change in China brings for the rule of law.
What began in December 1978 as a tentative legal reform program to re-establish government authority following the chaos of the Cultural Revolution (1966–76) has developed into a complex array of legal forms and organizations. The operation of law in China is affected by the fact that many aspects of the PRC legal regime are borrowed from European and North American legal models and yet also are suffused with local legal norms and culture. The legal regime remains heavily instrumentalist – a tool of Party and state policy. As the policy goals to which socialist law is applied have expanded, so too has the legal regime grown in reach and complexity. Law in the PRC remains a work in progress, subject to a range of policy priorities associated with China's socio-economic and political transformation and influenced by competing local and international norms.
The PRC legal system is worthy of study for many reasons. First is the intrinsic value of understanding legal norms and institutions in the most populous and soon to be largest economy in the world. As well, China's expanding trade and investment relations around the world lend practical value to the study of PRC law. In addition, understanding the structures and performance of the PRC legal system is important for its potential to strengthen understanding of other legal systems from a comparative perspective. Finally, China presents a case study of the development of “socialist law” as a category of legal system distinct from the Continental/civil and Anglo-American/common law models. China's “socialist rule of law” system reveals practices of adaptation and hybridization in response to engagement with the civil and common law models of Europe and North America. China's socialist legal system also reveals important dimensions of the relationship between ideals about the rule of law and imperatives of governance. This in turn invites consideration of notions about independence and autonomy of legal systems generally, and with regard to China in particular. For these reasons at least, the legal system of the People's Republic of China is a compelling focus for study by advanced undergraduate and graduate students in law, political science, and related disciplines.
This research and learning guide aims to provide students with basic information about the PRC legal system and to invite consideration and debate around foundational questions about law in China. Readers should be mindful that the specific content of particular laws and regulations will change over time, as will the organizational arrangements for China's legal institutions. By developing a basic understanding of the foundations of the PRC legal regime, readers of this volume can adapt to future changes in particular rules and organizations.
With these goals in mind, the volume opens with an historical overview and discussion of influences on PRC law today. The historical antecedents for the PRC legal system provide essential context for the current operation of law in China. Attention is given to the legal regime of the Qing Dynasty (1644–1911), where Confucian relational standards of socio-economic and political harmony were combined with punitive legalist doctrines of rigid enforcement and punishment. The legal system of the Republic of China (founded in 1911, removed to Taiwan in 1949) is also addressed, largely as an institutional context for the subsequent emergence of law in the PRC. The historical overview also examines legal arrangements in the CPC revolutionary base areas (particularly Jin Cha Ji Border Area), which provided a foundation for many of the laws of the early years of the PRC. The early history of the PRC is discussed as a source for law in the post-Mao era. With the post-Mao legal reforms of the Deng Xiaoping leadership after 1978, PRC law was linked increasingly with political control and economic and social development.
Accordingly, the book then turns to three thematic challenges that confront the PRC today, namely political stability, economic prosperity, and social development. The chapter on political stability focuses on the role of the PRC legal regime in ensuring and protecting the political authority of the Party/State. This combines normative issues of Party ideology with legislative and operational structures around criminal law and administrative control. The chapter on economic prosperity examines the ways in which the PRC legal regime supports expanded autonomy for commercial activities while still imposing a modicum of state regulatory intervention, as an alternative to the state-planned economy in which economic actors were wholly subordinate to state direction. Applied to the economy, the legal system of the PRC reflects development policies that have shifted from an emphasis on state planning to a qualified emphasis on market relations. This in turn supports a transition in the role of the government over economic affairs from one of direction to one of facilitation, even while reserving certain strategic sectors (e.g. security and defense, natural resources, telecommunications, and infrastructure) to the prerogatives of the Party/State. The chapter on social development examines the ways in which the PRC legal regime facilitates the transition in the policy imperatives of the Party/State from leading social transformation to providing social services. Touching on examples of health policy, education, labor, women's rights, and treatment of minorities, this chapter examines the emerging role of the Party/State as a protector of social wellbeing rather than a leader of revolutionary change.
Underlying all three sectors is the importance of the legal regime as an instrument for policy implementation and in providing legitimacy to the rule of the Party/State. These three thematic chapters explore tensions around dynamics of control and autonomy in local political, economic, and social relations, particularly in the relationship between the imperative of political stability and the needs of economic prosperity and social development. The PRC legal system is an important arena where these tensions are expressed and efforts to resolve them attempted.
Reflecting the expanded presence of China in the world, the final chapter examines issues of China's international engagement. The complex phenomenon of globalization presents opportunities and challenges for China's increased influence in the world. The opportunities to borrow, internalize, and adapt legal norms and institutions have been seized by China's leaders to develop a legal system that on the surface appears generally compatible with international standards and the legal systems of other countries. However, challenges emerge also, particularly as norms of liberalism (particularly standards of liberal democracy) challenge the monopoly on political power held by the Party/State. Many of China's official explanations of the direction of its legal development are grounded in assertions about the non-applicability of international liberal standards of governance. China's closer integration with the world political economy involves tensions between the standards that inform the global system and the prerogatives of the PRC Party/State.
This book is intended to serve as a research and learning guide for university-level audiences with general but non-specialized knowledge about China. The book relies on primary and secondary literature (a reference section is provided at the end of the volume) as well as the author's own experience and research. Included in the text are excerpts from Chinese laws and other legal materials, offered to illustrate points made in the main text and also to invite readers to begin grappling with the challenges of documentary analysis. Readers are encouraged to parse these documents with care to identify underlying elements of ideology, policy, and interest. Each chapter also includes discussion questions and suggestions for further reading.
Notes
1 Jerome Alan Cohen, The Criminal Process in the People's Republic of China (Cambridge, MA: Harvard University Press, 1968); Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford, CA: Stanford University Press, 1999); R. Randle Edwards, “An Overview of Chinese Law and Legal Education,” Annals of the American Academy of Political and Social Science, vol. 476: China in Transition (1984), pp. 48–61; William C. Jones, Basic Principles of Civil Law in China (Armonk, NY: M.E. Sharpe, 1989). The pioneering work of these scholars has been continued, often by their students, such as Albert Chen, Donald Clarke, Alison Connor, James Feinerman, and many, many others.
2See review by Pitman B. Potter, “Legal Reform in China – Institutions, Culture, and Selective Adaptation,” Law & Social Inquiry, vol. 2, no. 4 (Spring 2004), pp. 465–95. Also see Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford, CA: Stanford University Press, 1999); R. Randall Peerenboom, China's Long March Toward Rule of Law (Cambridge: Cambridge University Press, 2002).
3See e.g., Neil Diamont, Stanley Lubman, and Kevin O'Brien, eds, Engaging the Law in China: State, Society, and Possibilities for Justice (Stanford, CA: Stanford University Press, 2005); Eva Pils, “Land Disputes, Rights Assertion, and Social Unrest in China: A Case From Sichuan,” Columbia Journal of Asian Law, “Special Issue: Celebrating the Work of Stanley Lubman,” vol. 19, no. 1 (Spring–Fall, 2005), 235–92; Ethan Michelson, “Justice from Above or Below?” The China Quarterly, no. 193 (2008), pp. 43–64; Sida Liu, “Lawyers, State Officials, and Significant Others: Symbiotic Exchange in the Chinese Legal Services Market,” The China Quarterly, no. 206 (June 1, 2011), pp. 276–93.
4 The list of exemplary work by scholars from Asia, Europe, and North America is too vast to include in this text. However, an appreciation for the breadth and depth of current scholarship on Chinese law can be gained from “Special Issue: Celebrating the Work of Stanley Lubman,” Columbia Journal of Asian Law, vol. 19, no. 1 (Spring–Fall, 2005), pp. 1–29; “Special Issue: China's Legal System: New Developments, New Challenges,” The China Quarterly, no. 191 (September 2007); and Michael Mosher and Fu Yu, eds, Doing Business in China (New York: Interjura, looseleaf).
5 A short and woefully incomplete selection of PRC scholars working on issues of contract and property includes Cui Jianyuan, “Tudi shang de quanliqun lungang” [Theoretic outline of the cluster of rights in land], in Zhongguo faxue [Chinese legal studies], no. 2 (1998), pp. 14–20; Gong Xiangrui and Jiang Mingan, “Zai lun gongmin caichanquan de xianfa baohu” [Again, on constitutional protection for citizens' property rights], in Zhongguo faxue [Chinese legal studies], no. 2 (1998), pp. 70–3; Guo Mingrui, “Guanyu woguo wuquan lifa de san dian sikao” [Three perspectives on our country's property legislation], in Zhongguo faxue [Chinese legal studies], no. 2 (1998), pp. 21–6; He Qinhua, “Fa de yizhi yu fa de bentuhua” [Legal transplanting and localization of law], in Zhongguo faxue [Chinese legal studies], no. 3 (2002), pp. 3–15; Jiang Ping, “Drafting the Uniform Contract Law in China,” Columbia Journal of Asian Law, vol. 10, no. 1 (1996), pp. 245–58; Jiang Ping, Zhonghua renmin gongheguo hetong fa [Contract law in the People's Republic of China] (Beijing: Red Flag Press, 1999), pp. 735–8; Liang Huixing, “Zhongguo hetong fa qicao guocheng zhong de zhenglun dian” [Points of contention in the process of drafting China's contract law], Faxue yuekan [Law Science Monthly], no. 2 (1996), pp. 13–15; Liang Huixing, Zhongguo wuquanfa caoan jianyi gao [Outline of opinion on a draft Chinese property law] (Beijing: Social Science Manuscripts Press, 2000), pp. 95–7; Qian Mingxing, Wuquan fa yuan li [Principles of Property Law] (Beijing: Peking University Press, 1994); Wang Liming, “Tongyi hetong fa zhiding zhong de ruogan yinan wenti tantao” [Inquiry into various difficult questions in enacting a unified contract law], Zhengfa luntan [Political Science and Law Tribune], no. 4 (1996), pp. 49–56 and no. 5 (1996), pp. 52–60; Wang Liming, Wuquan fa lun [On property rights law] (Beijing: Chinese University Politics and Law Press, 1997); Zhang Lihong, “The Latest Developments in the Codification of Chinese Civil Law,” Tulane Law Review, vol. 83 (2009), pp. 999–1039; Zhang Mo, Chinese Contract Law: Theory and Practice (Leiden: Brill, 2006).
1
Development of the Socialist Legal System
The contemporary PRC legal system reflects a range of historical and contemporary influences. Domestic influences provide the foundation for Chinese law, beginning with the traditions of the imperial period. Legal initiatives under the Republic of China (est. 1911), during the revolutionary period, and after the 1949 Communist Revolution, reflected tensions between domestic concerns with increased international influence. The launching of legal reforms in 1978 signaled a new effort at building a legal system, although there have been numerous changes and challenges since then. Understanding the PRC legal system today requires an appreciation for its historical antecedents and contemporary contexts.
I. Historical Foundations for PRC Law
The PRC legal system reflects the influences of historical conditions and changes affecting China over the past several centuries. Particular elements of this include Chinese legal tradition and the law code of the Qing Dynasty (Da Qing Lü Li) that used formal rules and institutions of punitive law (referred to in Chinese as “fa”) to enforce moral principles of Confucian propriety (“li”). This dichotomy between moral education and formal legal punishment continued to influence the development of law under the Republic of China and later in the PRC.
While much of the Qing Code focused on criminal punishments for errant social behavior, many kinds of ordinary social and economic activities were also addressed, including commercial law, contracts, and property.1 As well, the handling of disputes in local practice under the Qing suggested that the guidance of formal legal codes was aimed primarily at expressing ideals of governance while local practice tended to reflect local priorities around relationships and community socialization.2 Features of the Qing Code (and the Ming Code before that), such as severity of punishment; the privileged status of officials; reliance on magistrates as judge, jury, and executioner; and the general lack of attention to formal legal education, were grounded in Confucian norms of hierarchy, propriety, and relational justice.
Confucian foundations of Qing law included notions of “relational justice,” by which the application of law depended on hierarchical relations in society that privileged officials, men, and elders over commoners, women, and youth. Thus, criminal punishment applied not only to conventional crimes such as murder, assault, and theft, but also to behavior that would be classified as civil rather than criminal in many legal systems today, such as breach of agreement, harm to reputation, and interference with commercial relationships As well, the severity of punishment varied according to the relationship between the perpetrator and the victim – punishment was more severe if the act was deemed to violate a Confucian relationship in society.
Traditional perspectives of Qing law also included the notion of “catch-all statutes,” by which officials were granted discretion to implement legal rules. Under this system, officials were indoctrinated in Confucian classics prior to being appointed, and so were presumed to possess the virtue and propriety needed to govern society – whether through law or through other mechanisms of governance. As a result, application of law tended to be flexible and dependent on the discretionary judgment of officials, whose technical training (often acquired on the job or through personal vocation) was considered less important than their Confucian rectitude. This “amateur ideal,” by which government officials were expected to make decisions not based on technical expertise in the subjects of administration but reliant instead on Confucian virtue and propriety, influenced subsequent approaches to law under the Republic of China and later the People's Republic of China.3
During the later years of the Qing Dynasty, the government attempted a range of legal reforms, including establishment in 1904 of the Imperial Law Commission. Under the leadership of Shen Jiaben, the Commission was tasked with compiling information on legal models in other countries – particularly Japan and Germany, and drafting legislation for application in China. This process was one of several initiatives taken by the declining Qing government to utilize foreign knowledge and technology while preserving the essence of Chinese values and identity. The tension over how to adapt foreign techniques to China without jeopardizing China's culture has often been referred to as the debate between ti (preserving China's essence) and yong (utilizing foreign knowledge).4 This dilemma had played a strong role in the various processes of China's opening to the outside world, at the end of the Qing Dynasty, during the Republican Period (1911–49), and under the PRC, particularly in the post-Mao era.
The work of the Qing Imperial Law Commission included preparation of a Company Law (1904), drafting of an Administrative Court Organization Law (1909) and a Criminal Code (1911), and included efforts to complete legislation in the areas of foreign trade, trademarks, civil procedure, and a Civil Code. These efforts represented an important shift away from practices and principles of discretionary rule that had characterized the Confucian model of law and governance in traditional dynastic China. The Civil Code embodied a transition from punishment to rights as the basis for socio-economic relations, while distinguishing these relationships from criminal acts punishable under the Criminal Code was also a significant step away from traditional practices. While the decaying Qing government was far too weak to ensure the implementation of these laws, many of those working on law reform in the late Qing period continued this work under the Republic of China government.
The establishment of the Republic of China (ROC) in 1911 marked the end of traditional dynastic rule and a major watershed in the transition to modern government. Inspired by the philosophy of Dr Sun Yat-sen, the Nationalist Party of China (Guomindang or GMD) attempted to establish a parliamentary system of governance. Under the doctrine of “political tutelage,” the GMD established a dual system of governance by which state institutions such as legislatures, courts, and administrative agencies operated under the guidance of a parallel structure of supervisory GMD organs. This pattern of dual party and state rule was replicated later by the Communist Party of China (CPC). During the period of ROC rule (1911–49), recurring economic and political crises inhibited efforts to establish an effective national government. Nonetheless, during the ten years of relative peace between 1927 and 1937 (the so-called “Nanjing Decade”), the ROC saw an impressive record of law making. Significant efforts included a Civil Code (1929) that combined civil and commercial regulation following the model of Swiss law, a Company Law and Negotiable Instruments Law (1929), a Criminal Code (1935), a Civil Procedure Law (1935), and a Trademark Law (1936).
Several aspects of law under the Republic of China are noteworthy. The transition away from the “relational justice” norms of Qing China toward more objective treatment of legal actors was embodied in the ROC Civil Code. The introduction of the concept of “legal persons” (individuals) and “natural persons” (associations, companies, and the like) was derived from civil law arrangements of continental Europe and made little if any reference to social relationships as the basis for legal status. In a reversal of Qing orthodoxy, the ROC legal system combined objectivity in the treatment of legal actors with subjectivity in the analysis of legal acts. Thus, ROC law included the role of intent as the basis for juristic acts, in contrast to the more rigid provisions of the Qing Code where every act brought legal (and often punitive) consequences based simply on the act and its presumed effects on the social relationships between the actors involved, rather than the subjective intent of the perpetrator. ROC law also entrenched the distinction between public and private law such that obligations such as contracts were considered private even when enforcement was subject to public institutions. Here again, this was a departure from the patterns of the Qing Code, which tended to conflate public and private relationships such that private disputes and offenses were often subject to criminal punishment.
These developments in ROC law remain influential. In Taiwan today, court decisions issued under the Republic of China beginning in 1911 continue to serve as legal precedent. As well, legal institutions and practice under the Republic of China influenced drafting and interpretation of law in the PRC during its early years and during the legal reform of the post-Mao era. Thus, while ROC law applied effectively only in a few cities along the Yangtse River owing to the relative political and military weakness of the government, legal doctrines and ideals continued to serve as a foundation for the legal arrangements that emerged under the PRC and in Taiwan.
II. Transition to Law in the PRC
When the People's Republic of China was established in 1949, the leaders of the Communist revolutionary movement already had significant experience with legal institutions and regulatory processes. Even as they carried out their commitment to revolution, China's new leaders drew upon their own past experience with governance and regulation.
A. Law in the Revolutionary Base and Border Areas
Soon after the founding of the CPC in Shanghai in 1921, the movement was driven out into the rural area of southeast Jiangxi province where it established a Revolutionary Base Area (the “Jiangxi Soviet Republic”). Institutions of law and governance were established along with codes of formal law and regulation on matters such as family relations, land reform, and taxation.5 Later, after near-defeat by Nationalist encirclement campaigns, the CPC embarked on the Long March to northwest Yan'an in Shaanxi province in 1934–5 and established the Shaan-Gan-Ning (Shaanxi-Gansu-Ningxia) and Jin-Cha-Ji (Shanxi-Chahar-Hebei) Border Areas to continue resistance to GMD/ROC rule and to confront Japanese invasion. In each of these areas, the CPC established organizations for governance and legal administration, and enacted laws and regulations on such diverse matters as criminal law, taxation, elections, marriage, labor, and land reform. As shown in table 1.1, many of these laws served later as the basis for legislation and regulation after the founding of the PRC.
Table 1.1 Comparison of Jiangxi Soviet, Jin Cha Ji Border Region, and PRC Laws
Sources: William E. Butler, ed., The Legal System of the Chinese Soviet Republic 1931–34 (New York: Transnational Publishers, 1983); Lan Quanpu, Jiefangqu fagui gaiyao [Outline of laws and regulations in the liberated areas] (Beijing: Masses Publishers, 1982); Han Yanlong and Chang Zhaoru, eds, Zhongguo xin minzhuzhuyi geming shiqi genju di fazhi wenxian xuanbian [Collection of legal documents from the base areas during China's new democratic revolution] (Beijing: Chinese Academy of Social Sciences Press, 1981).
Chinese Soviet Republic, Jiangxi 1927–34Jin Cha Ji Border Region 1936–49People's Republic of China, est. 1949Constitution 1931Governance Outline 1940Constitution 1954Land Law 1931Land Law 1947Land Reform Law 1950Labor Law 1933Regulations on Safeguarding Labor Hiring in Rural Areas 1944Regulations on Labor Insurance 1951Election Law 1933Election Regulations 1943Election Law 1953Regulations on Suppression of Counterrevolutionaries 1934Special Regulations on Traitors Who Voluntarily Surrender 1938Regulations on Punishment of Counterrevolutionaries 1951Marriage Law 1934Marriage Regulations 1943Marriage Law 1950The transition from revolution by the CPC to governance under the People's Republic brought significant challenges. With the defeat of Japan in 1945 and the CPC victory in the civil war in 1949, what had been largely a rural revolutionary movement faced tasks of national governance that required significantly greater institutional capacity than had been needed either in the Jiangxi Soviet or in the northern Border Areas. Whereas the revolutionary experience had largely been one of popular mobilization and military conflict, governing the country required systematic processes for government organization and control. In the short term, this meant continued reliance on the GMD/ROC law codes whose structure and content continued to influence the shape and operation of law in the early years of the PRC, even as they were publicly repudiated by the new CPC-led regime. The new PRC government also relied initially on legal specialists from the former ROC regime, although this was largely halted with a 1952 campaign to remove former GMD judges.
B. Socio-economic and political transformation
Legal development in the early years of the PRC, particularly between 1949 and 1954, was influenced by contradictions between continuing revolution and institution-building. After attaining national political power, the CPC addressed challenges of transforming the traditional Chinese economy and society through laws that changed the foundations for land and family relations.
The Land Reform Law was developed on the basis of land reform laws and regulations developed in the Jiangxi Soviet Base Area, and continuing in the Shaan-Gan-Ning and Jin-Cha-Ji Border Areas. Departing from the collectivization model urged by their Soviet Russian advisors, the Chinese Communists adopted programs of land redistribution. This had caused significant disagreement between the Chinese communist leadership and their Soviet supporters during the time of the Jiangxi Soviet and the northern Border Areas. Nonetheless, the land reform campaign, which stretched from the later revolutionary period into the early years of the PRC, revealed a commitment to redistribution of land rather than collectivization. The 1950 PRC Land Reform Law6 espoused policy goals of redistribution of land through confiscation from landlords and allocation to poor peasants through the local village peasant associations. The law reflected the Marxist ideology underpinning CPC policy, addressing land as part of the means of production and calling for landlords to work (land ownership alone not being considered as labor):
Article 10: All confiscated or expropriated land and other means of production except that to be nationalized as set forth herein shall be taken over by the township peasants association and then allocated in a unified fair and reasonable way to the poor peasants with a lack of land or without land or other means of production and to the landlords as well allowing them to maintain their life by working on their own and improve themselves at work.
Policy debates over land reform continued, however, such that by 1952 policies of collectivization emerged that would later be entrenched in the 1955–6 “high tide of collectivism.”
Just as the Land Reform Law challenged traditional economic arrangements, the 1950 PRC Marriage Law7 challenged traditional social arrangements, specifically abolishing “the feudal marriage system including marriage through arbitrary decision by any third party, marriage based on compulsory arrangements, the supremacy of men over women, and the disregard of the interests of children” (Art. 1). In addition to being subjected to practices of footbinding, arranged marriages involving child brides, and the pervasiveness of polygamy, women had also been formally excluded from the legal system – lacking property rights, inheritance rights, or legal personhood. The Republic of China had introduced reforms to family law relations under the ROC Civil Code (1929) and the ROC Marriage Law (1930), particularly in expanding inheritance rights for women and enshrining the principle of voluntary marriage. Nonetheless, traditional practices remained – as indicated in part by the preservation of certain aspects of concubinage as matters of “custom” protected under the ROC Civil Code.
The CPC regime aimed to go farther still in reforming conditions of the family – not only for ideological reasons born of Marxist approaches to gender equality, but also to further broader social transformation. The Marriage Law challenged traditional family arrangements, putting in place a “new democratic marriage system based on the freedom of choosing partners, monogamy, equal rights for men and women and the protection of legitimate rights and interests of women and children” (Art. 1). The Marriage Law granted women nominal rights to choose a spouse (arranged marriages had heretofore been standard). The Marriage Law allowed women greater freedom of divorce (albeit subject to agreement of both spouses), and provided for more equitable distribution of property upon dissolution of marriage, rights that previously had been severely restricted under conventional social practices. The Marriage Law also supported the right of women to take employment and to participate in social and political life.
In addition to efforts at economic and social transformation, the new regime also used law and regulation to further its immediate governance priorities. Shortly after taking power, the government embarked on what became known as the Sanfan (“three anti's”) and Wufan (“five anti's”) campaigns, aimed at curbing corruption among newly recruited CPC officials and at suppressing class enemies such as business owners and former ROC government officials. These political efforts were aimed not only to attack perceived ills both within the officialdom and in society at large, but also to bolster the power and authority of government and CPC organs in charge of enforcement. While these campaigns emerged from CPC decisions and directives and were not subject to much in the way of formal legal restraint, administrative reviews on the conduct of these campaigns often led to regulations governing future activities.
Throughout this process, law and regulation were used to entrench the policy preferences of the regime. The typical pattern for rule-making involved CPC leadership decisions on key policy priorities, whether in social and economic reform or political control, which would then be followed by experimentation through campaign-style mobilization efforts. Both the Marriage Law and the Land Reform Law, for example, were informed by CPC policy decisions and tested through experimentation in Jiangxi and the northern Border Areas. The contours of the Sanfan and Wufan campaigns emerged from the pattern of political mobilization and anti-corruption efforts of the civil war period. The results of these efforts then were formalized into legal and regulatory provisions, which served to articulate ideals for future behavior rather than to limit the authority of enforcing agencies.
The early years of the PRC saw debates over policy priorities, as well as contending approaches to implementation through either formal regulation or informal management and campaigning. The institutional formality of legal regulation conflicted with the flexibility and expediency of political campaigns. This tension continued through the early years of the PRC, as institutions and officials of the Party/State attempted to achieve policy goals of socio-economic and political transformation in ways that were both organizationally robust and also able to mobilize popular support. The close relationship between law and policy that characterized the initial years of the PRC has continued throughout the history of contemporary China, as debates over policy preferences were reflected in the dynamics of law making and institution building.
C. Constitutional change and conflicts over formalization of law and governance
The experience of reforms in land and family relations together with the apparent successes of the political consolidation through the Sanfan, Wufan, and other campaigns paved the way for enactment of a formal constitution. The 1954 Constitution of the PRC represented a culmination of sorts in the process of revolutionary consolidation. Following a rather conventional institutional pattern whereby constitutions serve as foundational documents for the organization of the state, the 1954 Constitution contained provisions on the structure of government, jurisdictional boundaries between departments, and the relative roles of legislative, judicial, and administrative organs.8 The Constitution also contained provisions on the rights and duties of citizens.
The 1954 Constitution had its origins in the 1949 Common Program of the Chinese People's Political Consultative Conference (CPPCC).9
