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Chinese Legal System

Modern law practices in the republic of China reflect a great deal of the colorful history of this ancient land. Before the 20th century law in this Asian republic was given the general term of “legalism” which in general terms means a very strict adherence to the law. Chinese rules and punishment are considered a bit rigid by today’s standards and their correction did not always fit the crime. However, over the past 3 or 4 decades it has become somewhat more flexible and tolerant of situations on a case to case basis. Perhaps the earliest mention of law in China occurs around 800 B.C. in a time when numerous feudal systems existed together and warred against one another on a regular basis. Laws of this time were mostly mysticism mixed with traditional law as the “legalists” and the “moralists” clashed against each other to become the ruling doctrine in the land. One of the founding moralists, Kung Chiu-Tzu, described the essential philosophy of the moralist model of law around 500 B.C, "If you lead the people by regulation and keep them in order by punishments they will flee from you and lose all self-respect. But lead them by virtue and keep them in order by the established morality they will keep their self-respect and come to you." Serving as a judge for many years, Kung Chiu-Tzu was named Minister of Justice in the state of Lu. He would later become known as Confucius.

The legalist side was well represented by a young Chinese jurist named Han Fei Tze. A well respected man, he postulated a legal philosophy known as fa kia and ridiculed Confucius’ beliefs at every turn labeling them as naïve. His opinion of legal doctrine differed radically from the moralist view and was encompassed in his writings, "Order and strength (of a state) spring from the observation of law. Disorder and weakness (of a state) spring from the disregard of it."

Han Fei Tze’s guidelines on punishment were rather strict as he tried to shape societal behavior by way of a harsh criminal law system that had such forms of corporal punishment as castration, amputation and death. Han Fei Tze was a bold and outspoken defender of unsympathetic justice and he successfully promoted stringent laws and severe punishments as the best and most proficient way to govern. He mandated heavy punishment for light offenses with the attitude that if light offenses were punished harshly then who would dare to commit a serious crime. He was a staunch advocate of the “Qin code” which was a particularly brutal set of laws and punishments. Another proponent of heavy punishment was Li Si , a classmate of Han they shared the same philosophy. But fate handed Si an ironic twist, his viewpoint fell out of favor and was executed by being cut in half in public. From the time of Confucius to approximately 100 B.C. (about 400 years) bitter corporal punishment was the law of the land in China, but things would soon change again. In 624 (circa) the Tang code came into practice and it effectively unified the current legal policy with the principles of Confucius and succeeded in developing a somewhat kinder, gentler legal system. In 1644 the Qing code would be the last of the legal law codes set forth by a Chinese dynasty. However, the Tang code was abolished in 1912 when the Republic of China was established but the legal system took another turn when China adopted a communist ideology in 1949.

The Chinese legal system of the present day is separated into four distinct divisions, the People’s Republic of China (PRC), Taiwan, a part of the old Republic of China (ROC), the Macau region and the Hong Kong Special Administrative Region (HKSAR). Although these four are all individual entities, when referring to Chinese law the model most cited is the PRC. The Chinese legal system is divided into the Executive, Legislative and Judicial branches. The Executive branch houses the President and Vice President of the People’s Republic of China, their powers are defined in the Constitution of the People’s Republic of China. At the summit of the Chinese hierarchy is the National People’s Congress (NPC) a unicameral group of the Legislative Branch which has high authority to issue laws and appoint the Premier. The State Council is the branch of the PRC carrying out day to day duties under the counsel of the Premier. The central government of the PRC, located in Beijing, is the source of all decisions and edicts that are enacted. Local governments have only limited control and act mainly as enforcers of the little power that is delegated to them.

The Legislative Branch is home to the NPC which according to the constitution is “the highest organ of state power” and carries out “the legislative power of the state.” The NPC is responsible for amendments to the constitution and for the constitution’s enforcement and general lawmaking. It also appoints the President, the Premier and most other high ranking positions. Other responsibilities of the NPC include supervision of all economic and social issues on the China mainland and to act on decisions of “war and peace.” They also have the power to amend or annul inappropriate decisions of the Standing Committee. The Standing Committee is a group of senior scholars and well respected citizens that sits in session when the NPC is in recess or not in session. The 3,000 members of the NPC meet once a year and are elected to five year terms and members may serve no more than two consecutive terms. The NPC has six permanent committees which include health, science, finance, foreign affairs, culture and minorities. The local government level holds the Local People’s Congresses (LPC). These function in much the same capacity as their NPC counterparts but on a lower, local stage. The LPC’s for all intense and purpose is no more than an arm or extension of the central government.

The Judicial Branch is comprised of a four level court system. The Supreme People’s Courts, the Higher People’s Courts, the Intermediate People’s Courts and the Basic People’s Courts. Basic People’s Courts handle all low level crimes and civil disturbances in their province that do not carry a possible death sentence or life imprisonment penalty. Intermediate People’s Courts handle cases transferred from Basic Court in addition to cases dealing with life imprisonment or the death sentence. They also handle cases involving foreigners. Higher People’s Courts rule over cases referred from lower courts as well as major criminal cases that impact the entire province. They also hear appeals and protests from lower courts. Finally, the Supreme People’s Court has jurisdiction over all the lower courts in addition to making decisions on principles of law, much like the Supreme Court of the U.S. Some of the other responsibilities of the Chinese Judicial system include managing reform and reeducation through work programs, oversee the nation’s jails and review and implement changes pertaining to incarceration policies. The Judicial system also regulates lawyers, regulates public notaries, appoint and train judicial officials and supervise theory building in relation to judicial administration. There are special courts that listen to cases involving military, railway and maritime law. On every level of the Judicial system is a corresponding organs called people’s procuratorates which function as state prosecutors and in a watchdog capacity. In this role the procuratorates act to investigate cases involving government corruption and dereliction of duty. They also look into complaints by citizens against the system.

While the People’s Republic of China is the main branch of law there is, as mentioned before, three other divisions. Taiwan (ROC), the Hong Kong Special Administrative Region and the Macau Special Administrative Region which covers the Macau peninsula. Even though the basic laws of the three SAR’s are similar they run on separate economic and political systems than mainland China. Hong Kong, which until recently (1997) has been under British rule. It now benefits from a high level of sovereignty in all matters except foreign relations and military defense. Macau was until 1999 a Portuguese colony and at the time over the handover retained the governmental process it employed as a colony and will, by decree, remained unchanged for 50 years. The last of the SAR’s is the republic of China, commonly known as Taiwan, located off the east coast of mainland China. Initially a lone party state, Taiwan evolved into a democratic state in the 1980’s. The ROC and the PRC are warring political systems, although the PRC has the upper hand neither side officially recognizes the others authority. Mainland China refuses to trade with any nation that recognizes Taiwan as the ruling power. China is often called the one country, two system government. It’s an uneasy atmosphere but it has settled down considerably from its tumultuous beginnings. Unless this situation changes, the nation of China may always remain non-unified and be governed by rival factions that refuse to recognize the others existence or pursue peace.

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