Chinese Legal History (Zhang Jinfan)

Author: Chief Editor: Zhang Jinfan
Publisher:
Publishing Date: 2002-08-01
Features: Editorial Note: To meet the demand for legal talent in China's socialist modernization and the implementation of the rule of law strategy, and to comprehensively improve the quality of legal professionals, we invited law professors and experts from courts and practical departments to compile this series of textbooks. Guided by Deng Xiaoping Theory and based on the expert opinions of the former Ministry of Education's Teaching Guidance Committee for Law Majors in Higher Education, this series of textbooks incorporates the latest achievements in domestic and international legal education, catering to the legal education of the 21st century. It correctly explains the basic theories and fundamental knowledge of this discipline, adheres to the principle of linking theory with practice, and strives to achieve a unified combination of scientificity, systematicity, and practicality. China's Legal History is one of the main textbooks for law majors, edited by Professor Zhang Jinfan as the chief editor and Ma Zhibing and Gao Huanyuan as deputy editors. The entire book was compiled and finalized by the chief and deputy editors. The writing responsibilities for each chapter are as follows:
Zhang Jinfan: Introduction, Chapters 9 and 10
Ma Zhibing and Gao Huanyuan: Chapter 4
Hou Xinyi: Chapters 2 and 12
Xu Yongkang: Chapter 3
Gao Huanyue: Chapters 5, 6, 7, and 8
Wang Renbo: Chapters 7 and 8
Wu Qian: Chapter 11
Editor-in-Chief: Shen Zhongjun
Ministry of Justice Legal Textbook Editorial Department
November 1998
Excerpt:
(6) Emphasis on Criminal Law over Civil Law, with the Lü as the Main Form of Legal Studies
Under autocratic rule in ancient China, the state was regarded as the collective representative of the interests of the common people. Therefore, the protection of state interests was prioritized over private interests. Combined with a family-centered social structure and specific cultural background, this determined that ancient China emphasized public power over private power, criminal law over civil law, to the extent that criminal law and law were synonymous. The main legal codes of each dynasty were criminal codes. Due to the emphasis on criminal law, the criminal legal system was rigorous, and the means of punishment were cruel. In judicial practice, the litigation system for handling criminal cases was also comprehensive, especially with the Lü, which primarily focused on criminal law, representing the essence of ancient Chinese legal studies. Its practicality, comprehensiveness, and accuracy reached a high level. The emphasis on criminal law over civil law led people to neglect the study of the legal system, and the underdevelopment of private rights also determined the weakness of legal norms governing private rights, making it impossible to form a relatively independent legal department. It was not until the late Qing Dynasty, when Western law was introduced and the legal system was reformed, that the tradition of emphasizing criminal law over civil law and the dominance of the Lü was broken.
(7) Significant Proportion of Official Administration Laws
Under autocratic rule, the monarch needed an intermediary to effectively exercise power and control state activities. This intermediary was the official. Officials were a group managing the state and tools with a personality to realize state functions. The "rule of man" in ancient China was essentially "rule of officials." To leverage the role of officials, it was necessary to govern officials. The principle stated by Han Feizi—"the wise rule officials, not the people"—was revered by feudal rulers, forming a theoretical system of "rule of man—rule of officials—governing officials—rule of officials—governing the people." To govern officials according to law, relatively comprehensive official administration laws were formulated, detailing the duties, powers, and responsibilities of officials, clarifying their duties and holding them accountable. Each dynasty had legal standards for assessing officials to encourage them to fulfill their responsibilities diligently. Additionally, a strict monitoring network and monitoring laws were established to ensure the integrity of the officialdom and maintain necessary governance. The meticulousness of ancient Chinese official administration laws was unparalleled in the world at the same time.
(8) Combination of Statutory Law and Case Law
Ancient China emphasized statutory law, making written codes the backbone of traditional law. However, the process of drafting written laws was complex and time-consuming, and they had limitations in lagging behind social development. Therefore, case law was also applied in judicial practice to supplement the shortcomings of written laws. Case law was used as early as the pre-Qin period, with "" in Qin bamboo texts being legalized case law and an important basis for judicial trials. Ancient China had a deep understanding of the value of case law and a strong awareness of creating case law. Since statutory law adjusts from the general to the specific, while case law adjusts from the specific to the general, their combination achieved a unified balance between the certainty of law and the flexibility of application. This effectively regulated changing social relationships and allowed judges to avoid the dilemma of passively enforcing the law. Therefore, the mutual use of statutory law and case law was one of the characteristics and advantages of the Chinese legal system.