S&C - 5 - A Diverse Political Landscape C

Juridical System of the Empire

• Laws are inferior to Confucian Morality

• Only criminal justice, civil affair are dealt with under criminal law

• law servers to maintain harmony in ‘all under heaven’ not to protect individual rights

juridical reform in the late empire

• Reforms under influence of foreign powers during and after opium wars

• 1902: Shen Jiaben → Start of reforms with Japan as model

  • Convinced their model was the reason for their strenght

• → 1904: This leads to: Commission for Codification of Laws

• 1907: Establishment of the Constitutional Committee

  • To reform Civil law

  • 1910: Revision of the Da Qing Lu Li

  • 1910-1912: Drafts of new law codeci

    • Never implemented

Eclecticism vs Syncretism

Eclecticism → take bits here and there for the system

Syncretism → a whole new system blended into a hybrid of others

The Three Authorities

Dong Zhongshu:

• Emperor over minister

• Father of children

• Husband over wife

Biggest change in laws Qin & Han

• Qing → tried to be as universal as possible

• Han → Depends on social class

  • Shi, Nong, Gong, Shang

juridical reform in the Republic of China

• Old Qing Laws remained as long as there was no new law

  • but also just looked at westers practices and based loosely on the Qing rework of 1911

• Also established a Commission for Codification of Laws

  • Rejected the reforms of late Qing as base

  • a committee under the legislative yuan

  • 1926: new code → not implemented

  • 1930: First actual code and legal framework in China

Juridical reforms in the PRC

• Abolished ROC juridical system

  • Replacing it with a communist system

• New laws in function of political agenda

• 1954 → new constitution

  • introduced:

    • Procuratorate

    • regulations on for the legal profession

PRC Juridical timeline

• Establishing new juridical system 1949 - 1956

  • Constitution 1954

  • Party priorities first

• Chaos 1956 - 1976

  • Decline and suspension of the juridical system 1956 - 1966

    • Started with One Hundred Flowers campaign

      • They didnt like that one so launched anti rightist campaign prosecuting many

    • Equality doesnt matter because class struggle

    • NpC barely had any use

  • Destruction of the juridical system: cult rev 1966 - 1976

    • Lawlessness praised

    • Laws were seen as capitalist

    • System dissolved

    • only truth is Mao and CCP policy

• Reconstruction and reform of the juridical system 1976 - …

  • Reinstallment

    • for political stability and economic development

Juridical power of PRC

• Public security → police

• People’s Procuratorate

  • confirms arrests and initiates prosecution

• People’s court → adjucates cases

Organization PRC court

• Supreme Court

  • Military Tribunal

  • Maritime Court

  • Railway Transportation Court

  • Higher People’s Courts - 30

    • Intermediate People’s Courts - 391

    • Basic Level people’s Courts - 3,074

Each Court is accompanied by Public Security and Procuratorate

Legislative power

• NpC → Falu laws

  • NpC → basic laws

  • Standing Committee → other laws

• Government (state council) → Fagui regulations

  • Executive power. NOT part of NpC. Elected by NpC

    • Can administer rules but in accordance to constitution

      • Ministers and Commissions can also issue rules in accordance to State Council and NpC

  • Mostly concern economics

    • Short term solutions

Constitution of 1982 Juridical changes

• Extended power downwards

  • Provincial People’s Congress

  • Provincial Capital Cities

  • Autonomous Regions

  • Other major cities

• Legislative

  • Can make law but not allowed to go against NpC

• Executive

  • The respective Governments (Councils) could also enact rules

Biggest problems in Chinese lawgiving

• Very unclear division in legislative power of the diverse institutions

  • Nowhere made clear what NpC and Standing Committee actually separated when it comes to law

• Conflicting regulations

  • Relation between central and local

    • Contradictions

    • often needed informal negotiations

      • led to 90’s reforms

  • independence of the juridical apparatus

    • when vague they fill it up with own local rules

      • undermines universality

Reform era most important Juridical Reforms

• Law on advocacy 1979

  • Tried giving more rights but did jack shiiii

  • Reviewed in 1997

• Law on Juridical Procedures 1996

  • innocent until proven guilty

  • right to legal assistance - lawyer

• Law on Administrative procedures 1990

  • Can sue institutions

  • and challenge sanctions

• Law on the Legal Profession 1997

  • Reviewed 1979

  • Expanding role of lawyers

Judges and Procurators

• in 1979 reinstalled

  • often almost retired military officers due to lack of schooled judges

• 1995 law on judges

  • laid groundwork for more professional training and minimum schooling

Hu Yaobang and Zhao Zhiyang

• Probably the most liberal leaders in Party History

  • but yeah…

China and the Universal Declaration of Human Rights

• 1948 UN resolution on human rights

• 1976 Int Covenant on Economic, Social and Cultural Right

  • Signed by PRC in 1997 and ratified in 2001

• 1976 Int Covenant on Civil and Political Rights

  • Signed by PRC in 1998 and not yet ratified

• 1993 Declaration of Vienna

  • Connecting the 2 Covenants

• 1995 World Summit New York

  • Confirmations of Decl of Vienna

The West often prioritizes Civil and Political Rights, while PRC prioritizes Economic, Social and Cultural Right

• Survey finds that most people in China value social stability and economic development higher than democracy

  • Richer regions value social stability high

  • Poorer regions value democracy higher

• “Economic demand brings demand for human rights” is probably not true. Different policies in different cultures bring out different outcomes.

  • Economic growth rather than civil and especially political rights during development, with rapid economic growth occurring under authoritarian regimes

Chinese concept of justice

• Tied to citizenship rather than universal human rights

• Not to protect individuals from government but to make sure they fulfill their duties toward the state

  • only safeguarded by law to the extent that they perform their duties

Xi reduced the number of judges but raised their pay

Cultural relativism

• The idea that a culture should be understood on its own terms not by standards of others

  • For asia

    • “cant push human rights on our culture as something universal”