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3/30/1963 - Chinese Law: An Inheritance? by Anthony R. Dicks

INSTITUTE OF CURRENT ORLD AFFAIRS Guilford Street London W I March Chinese Law Ihaitaee Mr Richard H Nolte Institute Current World Affairs Madison Avenue New York N Y Dear Mr Nolte Among first present government Mainland Chin abolition legal institutions Nationalist Republic By Article P_ro_ramme e_s_e Peo Political onsultativ_e_i Conference which served place constituti until promui gated September All decrees judicial systems Kuomintang reaction government which oppress people abolished Laws decrees protecting people shall enacted people judicial system shall established Since although constitution promulgated there remarkable bsence ofallegislation published legislation There codes either substa procedural replace though various times promised lhere widespread belief amongst lawyers others West result clean sweep legal vacuum state which completely dictatorial regime without reference predetermined rules It purpose discuss B wdeyeld West administered ainland government seriously violates generally accepted notions lgallty doubtful whether should apply sacrosanct though I think applying fought legal system country largely outside European American jurisprudential tradition faced problem definition wholly illusory What I should attention problem which I believe fundam ental study modern Chines extent which account taken Chinese legal tradition It clear structure Chinese institutions derived solely other Communist models Accordingly seems relevant models elsewhere It outset theft imperial legal system nterms modern concepts surprisingly loose highly bureaucratic nature Chinese government It against background I should discuss aspects Chinese legal vacuum The ssumption legal vacuum creted gained currency West partly because until quite recently authoritative study subject Western languages It supported somewhat naturally those closely eennected sephlstieated legal system Nationalist China carefully constructed integra traditional institutions preserved systematically arranged rniIng pihlples modern Western Officlal profes sional opinion Taiwan backing writers Father Andre Bonnichon ormer Dean Faculty Law University L Aurore Shanghal eloquent memerandum addressed International Commission Jurists whether would justified concluding extent Which stsmds general prevision consid banished communist It Clear stage there judicial organization China Recent discussion judicial system Western scholars known broad outline hiersrChy courts orgsnization procuracy The Prov sionalReg lin_Gp_ verningh 0rgnizati People Sourts_ofthChinesePeople sRepublic andef instruments Which relaced Republic_ofChin_ sndthe 0rganioLaw_of_the Pe0Ple C PeOp Repmblic issued pursuant 0onstitUtion tanslated nalysed They reveal system exact parallel ether Communist states though certain features pesence strong procuracy functioning levels various courts through separate administrative hierarchy invites comparison other Communist models Ithhgh accomts individual cases decided courts secured anslysed doubtful whether there enough nssteri available outside China which comprehensive ssessment Jurisprudence Supreme People Court could based subordinate courts It present purpose assessment I merely attention kinds tribunal which aroused particular interest Western scholars putting special Stamp Chinese legal system which I believe related topic First special People Tribunals apparently initially ccordance Article Agrarian Reform Law special purpose implementing subsequently extended cities furtherance various social economic csmges The these courts linited their procedure conduct great lasting ression West Although rgsnic Regulations thePeop Trltal rules election presiding deputy associate judges seems clear these tribunals large informally constituted assemblies which justice roughest They their organic clear embodinent principle using dictatoris methods against people revolution which festure Chinese Conunist progrne which Tse Tung The contrdictions between ourselves enemies ARD I antagonistic Since contrdlctions between ourselves enemy those hmong people differ nature solved ffermt To briefly former matter drawing between Us enemies while latter matter distinguishing between right wrong It course drawing between ourselves enemies question distinguishing between right wrong different nature questions right wrong among people Speech the_Corrg_ct _ing9fc9td9_ti_o nsamongh9POPe 27February1957 Although Article Agrarian Law provided People Tribunals estab_ished punish ccording hated despotic elements commltt variou crimes masses people demand brought justice words according towards restricting activities these tribunals predeter mined procedure contemporary accounts believed There provision appeal which taken confirmation these bodies deliberately given Indeed these tribunals longer operating reparations their mistaken decisions discussed openly still clear The dictatorship proletariat resembles dictatorship exploiting class regime directly based force subject restraint regulations Mao Tse Tung Lectures Theor State L_W Thms While state People Tribunals delib erately refrained laying least explicitly principles which operate The which Tribunals reported functioned suggests members commun visited peripatetic Sndges deliberately involved might called corporate justice according principles formulated doubt The dictatorial method dealing enemies people never doubt outwardly least local group national dictating The seood group institutions Which aroused inter those concerned arbitration Although jurisdiction courts defined Organic Law extends civil criminal cases shown earliest Chinese Communist organization settling purely private disputes considered primary function People Courts Arbitral bodies expected larger settlement disputes would other major legal system The number nature these bodies still seems rather obscure It known certain areas divorce example arbitration conciliation prerequisite other proceedings other kinds dispute court personnel active arbitrators conciliators Arbitration necessarily voluntary contractual nature Western legal ystems Though necessary resort directly arbitration volition parties lawsuits liable ordered submit Arbitration service provided stucture communes where indeed regulatory powers minor unals extnsive Aicle Drft_ Regulatlons_ Weihslng Sputnik Commun published model provided Anyone oausing public property negligence criticized dealt disciplinary measures commune Cases corruption theft destruction public property handled serious manner those involved serious cases should referre higher judicial departments punished aCcording Emphasis added The result seems large proportion disputes including disputes which would characterize criminal cases settled legal basis least basis locally determined rather nationally determined customs In arbitral tribunals People ribunals confronted extensive delegation making finding functions lacal jmdicial bodies Though People Tribunals established carry specific state policy arbitrators state policy reaching their decisions value institutions degree local autonomy their means procedures It feature legal system raditional China courts should virtually auxil settlement iputes enforcemeht rights Th legal system imperial China rested lrgely principle juridical relationships individuals should regulated within groups which belonged example families clans mercantile industrial guilds The codes almost entirely concerned administrative criminal While criminal provisions codes conta rules civil including legislative reforms customary predominantly criminal character Imperial marke Questions private before state authorities criminal proceedings It accepted policy litigation should discouraged interfering natural social harmony which emperor maintain atmosphere criminal trial China calculated optimistic litigants curious absence erganic connexion between judicature private reflected rules ARD I groups themselves Thus rules which themselves often virtually codes their members analysed Mrs H C W Liu recent rulas reulring abitration intra disputes Of these prohibitedlitigation without prior arbitration permitted expressly arbitration proved unsatisfactory actually prohibited disobedience arbitral award resort courts In addition clear social stigma attached those court further deterrent where express Many these rules their reasons these connected corruption officials under regime unpredictable nature decisions costliness money litigation Others refer alienating other membBrs other members community torture punishment Many clans enjoined their officers dissuade members litigating against members As words which would context modern China Whether right wrong readily ascertained public opinion neighbourhood community Groups these enforced their civil criminal Western terminology imperial administration accepted perhaps encouraged The protection legal system independent functioning systems means unknown legal history other countries Even today among highly centralised legal systems Of Western Europe there which recognize enforce arbitration clauses contracts which jurisdiction courts altogether What strikes particularly about Chinese experience however reasons which I cannot discuss courts highly organised bureaucratic country attempt xtend their jurisdiction This suggests remarkable divergence between CBinese expectations legal system nhose other communities I would suggest structure modern institutions which I referred bears resmblac bodies reliance decentralisation point continued existence these expectations The extent which legal tradition modified intro duction codes modelled Western system Jurisprudence betwwen uncertain scholars claim system influence outside large cities where demands contact West satisfied where trained personnel could found One commiss ioners codification family himself admitted dispute family would settled according custom rather accordance Writing height codification movement which himself deeply involved Jean Escarra wondered whether Chinese would courts modern their preferences conciliation compromise arbitration within family circle guilds professional assoc itions which truth their provincial communal framework their government ARD I The regime swept these institutions should surprised ideas group justice still appear surface The Western jurist model rational closed system concepts probably little hinese expect their legal system When examine modern China cannot apply conceptual model compare other Communist systems But coherent picture likely expectations those underesystem traditional modern terms shall neglecting something important Yours erely Received New York April