Chinese law
The Chinese law refers to the totality of court enforceable social norms in China.
- 5.1 Family Law
Legal History
Traditional Chinese Legal Culture
The traditional Chinese legal culture is a broad interdisciplinary field of research by legal scholars, historians, anthropologists, sociologists and sinologist. Although there is no consensus on the specifics of this legal culture is given, the following characteristics are:
- The function of law is often met by rites ( li礼).
- For the evaluation of a hassle it is less on the right than the associated feelings (人情Renqing ).
- The focus of the law is on the criminal law. In the tradition of Confucianism, the duties of the individual towards the community are emphasized on the basis of the cosmic order. Civil law is in contrast underdeveloped.
- There is no separation of substantive and procedural law.
- There is no separate legal status. Courts are incorporated in the State Administration.
- The task of the state administration is not the administration of justice, but the avoidance of controversy.
Focal point of these features is going back to Confucius teachings of Confucianism; Accordingly, the law is an over the organizing principle of the Li inferior form of social order. Shortly after the death of Confucius threatened his teaching during the time of the Warring States to be forgotten: Legalism was the dominant philosophical view. The Qin Dynasty was 221 BC as the winner of the period of the Warring States and forth verwirktlichte legalism finally in pure form. Already in 206 BC came in their place, however, the Han dynasty: Confucianism became the dominant philosophy under her and remained so for almost 2000 years.
Although the law was a Li suborgunits possibility, although some law books, most of which are preserved only in fragments emerged during this period. From the 7th century AD complete law books of the Tang Dynasty are first received: They contain almost exclusively criminal law and administrative law. Civil disputes were settled by arbitration of the family head or an otherwise upstanding reputation of age or personality. Although it maintained as a last resort the transition to an imperial official, but widely considered a socially reprehensible.
A profound change took place only above the middle of the 19th century: as a result of the unequal treaties divided the major European powers China into spheres of interest; the following political turmoil forced the Chinese government eventually to reform and ultimately led to the end of the monarchy and the establishment of the Republic of China in 1912. During the 1920s and 1930s it came under the Kuomintang to a temporary reassurance that following the example of Japan as a first Kodifikationsversuch in civil law led; Was modeled on the German and Swiss law as in Japan.
Cultural Revolution
1949, the entire law of the Republic of China by the General Program of the Political Consultative Conference of the Chinese People (中国 人民 政治协商会议 共同 纲领) has been overridden. There followed a period of five years, in which the legal foundations of the new state were created. The phase from 1957 is characterized by inactivity legislatorische: Between 1957 and 1978 fared no single law, from 1965 to 1978 met the People's Congress not once. The lawlessness was overcome by arbitration in civil law. The legal education was completely set during the Cultural Revolution.
Turning point in 1978
A key turning points in the modern history of China is the opening and outwards and has driven forward at high speed modernization of China under Deng Xiaoping. For this purpose had to be built from the ground in a very short time the whole of civil, criminal and administrative law. The (usually as " preliminary" hereinafter) laws of the early 1980s are therefore often of inferior quality. The formulations are imprecise, resulting in imperfect arrangements of controversy. The lack of precision was partly for political reasons back, was but partly also wanted:宜 粗 不宜 细- " A coarse law is better than a detaillierts. " It is hoped that it will be able to adapt laws to the changing circumstances of the times better. Laws, therefore, often go hand in hand with an execution -determination and interpretation by the Supreme People's Court.
The influence of foreign jurisdictions in the emergence of the new Chinese legal system is outstanding. A very high number of standard textbooks of foreign - even lesser known - jurisdictions is available in Chinese translation. The confrontation with the foreign outweighs almost the study of its own right: "Without exaggeration to say that almost every Chinese legal scholars researching comparative law. " The single most important role is played by the German law - you linked this to the first wave of the reception of the German right to 1912-1949 - and influenced by German law jurisdictions such as the Soviet and Japanese law. From the German side, it is supported by regular symposia GTZ. However, an obstacle to the reception process is the German language, which is hardly taught in comparison to the English in China. In recent times, therefore increasing the influence of the Anglo-Saxon law, particularly in the capital market, credit assurance, corporate and bankruptcy law.
After the Cultural Revolution, there was so total a radical break with the legal culture of the country. As a result, there was a large gap between law and legal reality. In the law it later came to equivalent movements that a return to the roots of their own legal culture propagated instead of the adoption of foreign legal cultures ( as Suli Zhu ). To investigate this legal culture field studies were operated. Overall, the process of reception of foreign law but as proved irreversible.