According to ancient Chinese history, the issuance of orders by the emperor for regulating the conduct of his subjects may be traced as far back as 2700 B.C. The so-called five corporal punishments are said to have been enacted during the reign of Emperor Yao (2357-2255 B.C.) Although the authenticity of any early record of history, whether it be Chinese or that of any other ancient country, is often doubtful, nevertheless the enforcement of rules in primitive human society, as soon as it began to develop a form of government, must be admitted as a fact common to all cultures.
The first code of criminal laws in Chinese history is attributed to Li Qu'ei (455-395 B. C.), a minister of the State of Wei during the period of the Warring Kingdoms. The Code, which was by modern standard simple in arrangement, consisted of six chapters: (1) Rules Governing Robbery; (2) Rules Governing Larceny; (3) Rules Governing Imprisonment; (4) Rules Governing Arrest; (5) Miscellaneous Rules; and (6) Classification of Penalties. During the early years of the Han Dynasty (207 B.C.-219 A.D.), which succeeded the Ch'in Dynasty (246-207 B.C.), Hsiao Ho, the prime minister, compiled a new code known as the Hsiao Code of Nine Chapters. In addition to Li Qu'ei's Code, three more chapters, namely, (1) Law Governing Domestic Relations and Census; (2) Law Governing Military Service; and (3) Law Governing Cattle, were enacted. Thenceforth, the work of codification was carried on by successive dynasties. Only a few dynasties, however, added notably to the volume and quality of the legal literature of China. The Sui Code of the Sui Dynasty. (589-618 A.D.) is known for its conciseness. The Tang Code of the Tang Dynasty (618-907 A.D.) especially deserves praise for its systematic arrangement and its "Explanatory Notes." Not only was it highly regarded by the Ming and Ch'ing Dynasties as a valuable reference for compiling their respective codes, but it was also borrowed by Japan as the very model for her "Ta Pao Code". Though the Tang Dynasty ended in 907, the Five Dynasties (907-960) and the Sung Dynasty (960-1279) that followed in succession practically adoptee the Tang Code in its entirety. During the Yuan or Mongolian Dynasty (1279-1308) only minor revisions were made.
During the period of the Ming Dynasty (1368-1644) notable progress was made in the work of codification. The Ta Ming Code in its final text was accomplished in 1586. More exhaustive in its substance and more systematic in form than the Tang Code, the Ta Ming Code was actually the pioneer of the Code of the Ch'ing Dynasty, also know as Ta Ch'ing Lu Li.
As a result of over two thousand years of development in the work of codification and owing to the ever increasing complexity of human relations which constantly called for new laws, the Ta Ch'ing Lu Li represents the natural growth of a body of edicts, ordinances and rules governing the activities of the whole political machinery as well as regulating the relations between men. Its first edition was promulgated by Emperor Yung Chen in 1728. From 1736 onwards a general amendment of the code took place every ten years and a minor revision every five years. The final edition of the code was promulgated in 1908. There are altogether forty volumes consisting of seven parts: (1) General Provisions; (2) Law Governing Civil Service; (3) Law Relating to Population and Census; (4) Law of Rites; (5) Military Law; (6) Criminal Law; and (7) Law Relative to Public Works.1
This brief history of codification indicates clearly that Chinese Law, before the beginning of the present century, has been almost entirely an indigenous product. Space will not allow a detailed description of the Ta Ching Lu Li by virtue of which the old Chinese Law reached the zenith of its growth. A few comments, however, are made in the following passages.
A. Indiscrimination between civil and criminal laws.
"The old Chinese lawgivers were primarily interested in the field of criminal law. Such penal jurisprudence covers a wider field than is understood by modern jurists. Failure to follow the required forms in making a mortgage of land or even personal property might be punishable with fifty blows...... Transgressors of the law of interest were subject to a penalty of forty blows".2 Indeed, the law in China implied crimes and punishments, and the demarcation between civil and criminal matters was almost entirely ignored.
B. Collective responsibility for crime.
In ancient China a father could be held responsible for offenses committed by his son or by any other member of his family. In some cases the head of a clan and even the whole clan had to answer for the crime committed by any member thereof. The contradiction between the modern principle of individual responsibility and feudal ideas of collective responsibility is obvious.
C. The wielding of the judicial and executive authority by the same person.
"The judge examines the witnesses and becomes in some measure the prosecutor. In addition to this defect, there is a still graver fault in the use of torture and imprisonment to extract the truth from witnesses, or a confession from the accused."3
Sir George Thomas Staunton, in the Preface to his own remarkable translation of the Ta Ch'ing Lu Li, also pointed out as follows:
"How far, in the formation of the laws of the Chinese, are the ends of substantial justice consulted? There are many points upon which these laws are altogether indefensible. We shall look in vain, for instance, for those excellent principles of the English Law, by which every man is presumed innocent until he is proven guilty; and no man required to incriminate himself. Such maxims the Chinese system neither does nor indeed could recognize."
D. Emphasis on status
It appears that in the light of Sir Henry Maine's interpretation of the evolution of law as a progress from status to contract, the old Chinese law was still lingering in the first stage. Special emphasis was laid on status in most provisions of the Penal Code. Status was the first consideration, the crime committed the second consideration; the circumstances leading to the commission of the crime were given little consideration. In other words, the attention of the court was first directed to the particular person who had committed a crime against another person and especially to the former's status in relation to the latter. Then it would mete out punishment accordingly. Let us cite some of the provisions of the Ta Ch'ing Lu Li as illustrations.
All slaves who are guilty of designedly striking their masters, shall, without making any distinction between principals and accessories, be beheaded.4
If a principal or first wife is guilty of striking her husband, she shall be liable to the punishment of 100 blows; and the husband, if desirous thereof, may obtain a divorce by making application for the same to the magistrate of the district.5
Any person who is guilty of striking his father, mother, paternal grandfather or grandmother; and any wife who is guilty of striking her husband's father, mother, paternal grandfather or grandmother, shall suffer death by being beheaded.6
Striking a person is in most cases, according to Anglo-American jurisprudence, merely a misdemeanor, but in ancient China the perpetrator, owing to his status in his relation to the injuried party, might have to pay so heavily for such a minor offense. On the other hand, it was no crime for the master to strike the slave, for the husband to strike the wife, or for the father to strike the son, also owing to the former's status in relation to the latter. For the same act a person's status may result in heavy punishment or may exempt him from any punishment at all.
E. The frequency of amnesties.
The sovereign was the very source whence the law obtained its binding authority. He had the final word whether a prisoner should be put to death or whether a person sentenced to death should, on whatever ground might be found, be pardoned. Likewise, as a grace from the emperor, general pardon or amnesty orders were issued from time to time. On such occasions as the celebration of the emperor's weeding, his birthday anniversaries and his ascending to the throne, imperial edicts would invariably be issued for amnesty. Famine, draught and any other natural calamities which were regarded as God's punishments for wrongs done by men also warranted amnesties. It is no wonder to fine in the Chinese historical records numerous imperial orders for general pardons, which greatly mitigated the severity of punishment.
As to the universality and severity of corporal punishment, it must be admitted that the Ta Ch'ing Lu Li is tinged with this primitive character of law. However, about a hundred years ago, this primitive character could be found in the criminal law of any country. The reader's abhorrence will be tempered by the following observation made by Prof. E. H. Parker:
"The fact that Chinese Law is in need of reform in no way involves the admission that China is devoid of a legal history and equitable principles; nor must it be forgotten, when we criticize Chinese severity, that until a hundred years ago Englishmen guilty of treason were cut down from the gallows whilst alive, and their entrails taken out and burnt before their eyes; women were burnt alive for treason until 1790; and until 1870 men convicted of treason were supposed to be quartered after execution. Until William the Fourth's reign highwaymen and other notorious criminals were gibbeted in England and handed to surgeons for dissection; and the late Sir James Fitzjames Stephen, in his 'Digest of English Criminal Law', himself alludes to the atrocious severity of our former larceny laws: hanging for sheep stealing, for instance, was common enough in Dr. Johnson's time. I believe I am correct in saying that up to the beginning of the late Queen Victoria's reign there were two hundred offenses for which a man might be hanged."7
II. Modern Legislation
As a result of the successive military defeats suffered by the Manchu Government in the latter part of the 19th century, China's door was forced open by the Western Powers. She could no longer with arrogance and self-contentment live in cultural and economic seclusion. She was forcibly awakened to the existence of a changing world in which she could only play an insignificant role, having no such dominant influence as she once had. She was brought to view her own military and political backwardness and weakness. Among other projects of modernization, judicial reform was particularly called for by the exercise of extraterritorial rights in China by foreign powers on the excuse of the inherent defects of Chinese law and courts. Therefore, in 1904, Emperor Kwang Hsu of the Ch'ing Dynasty ordered that Prince Tsai Cheng, Yuan Shih-kai and Wu Ting-fang be commissioned to draft a commercial code, which was completed and submitted to the Throne in the same year.
In April 1905, another imperial edict was issued for the immediate revision of the Penal Code. Shen Chia-peng, a great jurist of the time, who was then Director of the Bureau of Investigation of Constitutional Principles, and Wu Ting-fang were commissioned to carry out the task. As a result of their comparative study of Western Penal Codes and in the light of modern principles of criminal law, a new Ta Ch'ing Criminal Code was completed and promulgated by an imperial edict in 1910.
In 1906, the first Codification Commission for the main purpose of compiling a new civil code was constituted, and in the following year Shen Chia-peng, Yu Lien-san, and Ying Chuan were appointed Directors of the Commission. It is worth noting that among the members of the staff of the Commission, there was a Japanese advisor, the learned Mr. Y. M. Matsuoka, who played such an important part in codification that his name has been long remembered by Chinese students of law.
"Since the new code was to be a complete departure from the general structure and principles of the traditional Chinese law, it could not follow the distribution nor the phraseology of the Ta Ch'ing Lu Li. Much had, therefore, to be imported from foreign jurisprudence, and the country from which the Codification Commission made their main borrowing was Japan.
The reason for this was obvious. Japan had just emerged from her old feudalism into a modern state. Her signal success in the process of modernization, China was anxious to follow. It was quite natural for China to try to profit by her neighbor's experience."8
Besides, there were a large number of Chinese students who had gone to Japanese universities owing to geographical propinquity and to the similarity of the two national languages. They must also have exerted due influence.
If the Codification Commission actually followed the Japanese Civil Code as a blueprint, the next question is: How did Japan modernize her civil code? During the period of the Meiji Restoration which began in 1868, Japan held Germany in great admiration. It was no wonder that she should have modeled her civil code after the German codes. Since the Japanese Civil Code was drafted during the years between 1893 and 1895, and promulgated on April 27, 1896, it can be assumed that the German Civil Code after which Japan's Civil Code was modeled was the one promulgated in 1888, not the revised text promulgated on August, 18, 1896.
The laborious efforts of the Codification Commission resulted in the completion of a draft civil code entitled Draft Civil Code of Ta Ch'ing which consisted of five books, namely, General Principles, Obligations, Real Rights, Family and Inheritance, and was published in 1911, the year that marked the outbreak of the Republican Revolution.
After the birth of the Republic, codification remained a herculean task to be tackled. The whole legal system needed a complete overhaul, and that could not be done in a day. Unfortunately, the new Republic had inherent weaknesses which made the work of codification even more difficult. Besides, military factions held full sway in the government and the political situation was far from being stable. Nevertheless, the work had to be carried on. It was generally admitted that a modern state, such as China was destined to become, ought to be governed by law. In 1918, the second Codification Commission was established under the directorship of Dr. Wang Chun'g-hui. The program of the Commission largely concentrated on the revision of the Provisional Penal Code enacted in March 1912, the remodeling of the Draft Civil Code, and the drafting of Civil and Criminal Procedure. Though what the Commission drafted and compiled did not actually become law, its achievements were treated by the Legislative Yuan of the National Government as the most valuable reference material, and in many cases as the ground work upon which the most recent legislation of China is based.
After the successful conclusion of the military campaigns led by Generalissimo Chiang Kai-shek against the northern warlords, the National Government was established in 1928, and since then the Legislative Yuan has become the highest law-making body of the government. The work of codification, which was carried out with outstanding success during the early years of the National Government, should be attributed to the ingenuity and efforts of the members of the Legislative Yuan under the brilliant and energetic leadership of the late Mr. Hu Han-min, one of the greatest scholars that modern China has produced.
With regard to the codification of the Criminal Code, it may be recalled that when the new Republic was founded there was practically no law of its own. Theoretically, codes of the late Manchu regime, would become invalid. Thus, there was created a vacuum of lawlessness, which no modern state could tolerate. Therefore, the Republican Government, by a presidential mandate of March 3, 1912, adopted the Ta Ch'ing Criminal Code, with the exception of those provisions pertaining to the royal family of the late regime. The Code was renamed the Provisional Criminal Code of the Republic of China. Later, in 1914, a few amendments were added.
The Provisional Criminal Code of the Republic of China, though largely a legacy of the late regime, showed unmistakably a deviation from the traditional penal code that had been used in China for many centuries. One of the fundamental innovations was that no person shall be held guilty of an offense unless it is expressly provided for in the penal Code. Further, modern Chinese jurisprudence no longer tolerates the principle of collective responsibility; each person is held to answer only for his own act.
The Law of Evidence of the Provisional Criminal Code seems to have been quite favorable to the accused. "In examining an accused no violence, threats, inducements, fraud, or other improper means may be used......" This indicates an intention to discard the old inquisitorial system under which the accused was subject to the abusive use of torture as a means to extort confessions.
As its title indicates, the Provisional Criminal Code was temporary in nature; it called for revision in order to keep pace with the times and meet the needs of the new Republic. In the early years of the Republic, two attempts were made to have it revised: one occurred in 1915 and the other in 1918. It needs to be pointed out that on the second occasion the work of revision which was under the direction of Tung Kang and Wang Chung-hui, two of the foremost jurists of China in those days, laid down a number of basic principles of criminal law and brought forth no less than 40 items of recommendations together with detailed explanations.
Based on such recommendations and explanations, the Criminal Code of the Republic of China was first enacted and subsequently promulgated on March 10, 1928, by the National Government. The Code and its Procedure came into force on the first of September in the same year. Later, when the Legislative Yuan was established, the Code and its Procedure were, subjected to revision and both of the revised texts were promulgated by the National Government on January 1, 1935, and took effect from the first of July in the same year.
Besides the principle that "Punishments are limited to those acts specifically mentioned in the law in force at the time they were committed," the rights of the accused are further protected by the provisions of Article 2 (I) and (III) of the Criminal Code.
Article 2. (I) If the law is modified after the commission of the offence, the law in force at the time of the decision shall apply; provided, however, that if the law in force before the decision is more beneficial to the perpetrator, such law shall apply.
(III) A decision inflicting punishment which has become final shall not be executed if the law in force before execution, or prior to complete execution, is changed, making the act exempt from punishment.
With respect to capacity to commit crime in so far as age is concerned, it is provided that "An act done by any person who has not completed the 14th year of his age shall not be punished." Likewise, insanity is a justifiable cause for incapability.
It is a modern doctrine of criminal law that the trial judge should take into consideration not merely the crime that has been committed, but also the individual person who has committed the crime and all the circumstances leading to the commission of the crime. This doctrine has been embodied in Article 57 of the Criminal Code:
Punishments shall be determined within the prescribed maximum and minimum after due consideration of all the circumstances of the cast. Special attention shall be paid to the following:
(1) The motive for the offence;
(2) The object of the offence;
(3) The provocation for the offence;
(4) The method employed by the offender;
(5) The living conditions of the offender;
(6) The character of the offender;
(7) The intelligence of the offender;
(8) The relations ordinarily existing between the offender and the injured party;
(9) The danger or injury caused by the offence; and
(10) The conduct of the offender after the commission of the offence.
The "Peace Protective Measures" as provided in the Criminal Code is also based on an important principle of criminal law, which emphasizes that prevention of, rather than punishment for, crime is the main aim of law. These measures require that juvenile delinquents be sent to reformatories for reformation; insane persons be sent to some appropriate institution for protection; opium or drug addicts or habitual drunks be sent to appropriate places for cure; and those who make the commission of crimes a habit or profession or commit offenses due to loitering or vagrancy be sent to places where labor is performed and compelled to work.
The Legislative Yuan set up a Commission on Civil Codification for the specific purpose of preparing a civil code. It must be pointed out that before the coming into force of the Constitution of the Republic of China on December 25, 1947, the National Government derived its mandate from the Central Executive Committee the members of which were elected by the National Congress of Kuomintang delegates. Therefore, theoretically the National Government was subject to the rule of the Kuomintang. The Central Political Council of the Kuomintang was empowered to lay down the national policies of the government and fundamental principles of law for legislation. Guided by a set of specific directions on 19 main points issued by the Political Council in December 1928, the Commission began to draft the first Book on the General Principles of the Civil Code, which was adopted by the Legislative Yuan in April 1929, and promulgated by the National Government the next month. Later, in pursuance of further specific directions issued by the Political Council from time to time, and in accordance with the established procedure of legislation. Book II (Obligation) and Book III (Law of Things) were adopted by the Yuan in November 1929, and were promulgated by the National Government in the same month. Toward the end of 1930, Book IV on Family and Book V on Succession were similarly adopted and promulgated.
We may now comment on some of the characteristics of the Chinese Civil Code. In the first place, the Three People's Principles, the basic doctrines taught by Dr. Sun Yat-sen, Father of the Republic, were scrupulously followed in the process of law-making, both constitutional and otherwise. These three principles, namely, the Principle of Nationalism, the Principle of Democracy and the Principle of the People's Livelihood, all aimed at uprooting the evils caused by narrow nationalism or imperialism, political absolutism, individualism and laissez-faire, thus bringing forth an ideal order of international cooperation for mutual benefit and prosperity and also an ideal social order of political equality and economic security for a happy and harmonious form of existence. "The Kuomintang doctrine, therefore, considers men not as self-contained entities, but in relation to the society which they form. It assigns to them rights and duties only in so far as the exercise of such rights and duties tends to the peaceful and orderly progress of the community. It restricts their activities when they would be harmful to the group. Rights and morals, according to the Kuomintang doctrine, are purely social notions, which may be subject to evolution, just as society itself evolves."9
As regards the extent to which the Three People's Principles have permeated Chinese law, we need only refer to the Constitutional Law of the Republic of China for enlightenment.10 From the Civil Code, it would suffice to cite a few provisions for illustrative purposes. It is provided in Article 148 that "a right cannot be exercised for the main purpose of causing injury to another person"; for no right is absolute—the exercise of a certain right necessarily entails a certain corresponding duty. Article 17 of the Chinese Land Law, which has made the nationalistic or socialistic conception of the right of landownership unmistakably clear, reads as follows:
"The National Government may restrict or prohibit the transfer of the right of ownership, the creation of encumbrance and the making of lease on private land, if such transfer, encumbrance and lease are considered detrimental to national policies."
It is worth noting that the Kuomintang policy of making the tiller who actually works on the farm become the owner of the farm has caused the Land Law in its entirety to be baptized in Dr. Sun's Socialism.
"For securing a more equitable distribution of wealth among the people, it is essential that the less fortunate elements of the population be protected against the hardships which they would suffer if the strict rules of law were always indiscriminately applied. Summum jus, summa injuria, says the old Roman dictum. The Code introduces an element of humanity by allowing the courts, when passing judgment on civil claims, to take into consideration the respective circumstances of the debtor and of the creditor and to grant time to the debtor for the performance of his obligation."11
Therefore, instead of the insistence upon the strict and indiscriminate application of law" there has been created in the Chinese Court the practice of unequal protection of litigants of unequal economic conditions.
In the second place, the framers of the Code were aware of the futility of attempting to provide a complete and comprehensive set of rules for regulating all human conducts in an increasingly intricate and complex modern community. Especially in China, a country with a territory of eleven million square kilometers and a population of 450 million, local conditions must inevitably vary to a considerable extent. For this reason, Article 1 of the Code provides: "In civil matters, if there is no provision of law applicable to the case, the case shall be decided according to custom. If there is no such custom, the case shall be decided in accordance with the general principles of law." Although it is not Chinese tradition for judges of inferior courts to make law for future cases, there is, nevertheless, ample ground for him to exercise his discretionary authority where there is no provision of law applicable to the case under trial.
In the third place, the traditional conception of family system and woman's position in such a system has been given no recognition whatsoever in the Code. The old family system which was based on ancestral worship has been simply ignored. Consequently, the system of agnatic succession to property has been abolished. Sons and daughters are treated on the same footing and they share in equal parts the inheritance of their parents.
The elevation of woman's status has immeasurably transformed the political and social life of the Chinese people. Woman suffrage has been adopted and practised in China in recent years. We find a considerable number of women in all governmental organizations performing legislative, judicial or administrative functions, and also in all social organizations participating in various activities for the well-being of the community. The kitchen is no longer their only domain. The law has emancipated them from the almost absolute authority of their fathers, who formerly could choose husbands for them and shape their lives against their will. The law has also given them legal rights equal to those of their brothers. Although old traditions die hard, such traditions will not be spared by the wheels of time.
1. The Lu, or Fundamental Laws, are those of which the Venal Code, upon its formation soon after the accession of the Manchu dynasty, appears originally to have consisted and which, being at least nominally permanent, are reprinted in each successive edition without alteration or amendment.
The Li, or Supplementary Laws, are the modifications, extensions, and restrictions of the Fundamental Law, which after undergoing a deliberate examination in the Supreme Councils, and receiving the sanction of the Sovereign, were inserted in the form of clauses at the end of each article or section of the Code in order that they might, together with the Fundamental Laws, be equally known and observed. They are generally revised every 5th year, and subjected to such alterations as the wisdom of government determined to he expedient.
Under those two denominations, the whole body of Chinese Penal Law is comprehended; but the number of documents which possess the force of laws without the name under a government in which every authenticated expression of the will of the Prince bears that character, necessarily he unlimited. See Sir George Thomas Staunton, Translator's Preface, Penal Code of China, 1810.
2. Tseng Yu-hao, Modern Chinese legal and Political Philosophy, p. 25.
3. James w. Bashford, China. 1916. p. 283.
4. Sixth Division, Criminal Laws, Book III, Sec. CCCXIV.
5. Sixth Division. Criminal Laws. Book III, Sec. CCCXV.
6. Sixth Division, Criminal Laws. Book III. Sec. CCCXIX.
7. E. H. Parker, China: Her History, Diplomacy and Commerce, p. 308. London. 1917.
8. Foo Ping-sheung. Introduction to the Civil Code of the Republic of China.
9. Ibid.
10. Tsao. The Constitutional Structure of Modern China, (Chapter 11. Theoretical Basis), Melbourne University Press. 1947.
11. Foo Ping-sheung, op. cit.
Be Aggressive
Yield to no one, not even to your teacher, in doing what is right.
From The Confucian Analects.
Translated by Durham Chen.
Physical & Mental Health
Bitter pills, though difficult to swallow, are beneficial to the sick; Loyal advice, though displeasing to the ear, is conducive to good conduct.
From The Confucian Table Talks.
Translated by Durham Chen.