Interesting China

China’s modern lawyering system and its criminal procedural laws are shaped by the two thousand years of philosophical and political traditions. It is also heavily influenced by China’s need to quickly adopt and transform into a recognized global entity with a stable social and economic order to enjoy the full benefit of international cooperation and economic development.
The goal for China in transforming its lawyering system is to develop a modernized legal profession to assist and regulate its economical developments while maintaining social stability. China needs to stabilize its increasing population by enlarging its middle class to offset the gap between the haves and have-nots. At the same time, China has to reassure its own people as well as foreign investors that its social and political structure is mature and sound so that economic growth can take place with minimum risks.
Because of this urgent need to develop its economy under a socialist framework, China has to depend on a well educated legal profession, a transparent legal system, a just and fair criminal procedure to give the sense of stability thus attracting both domestic and foreign investments. There are three dominate philosophies that influenced China’s modern legal culture: Confucianism, Daoism, and Legalism. Daoism is somewhat of a mystical philosophy that affects every aspects of Chinese thought, it is therefore difficult to pinpoint to its impact on the lawyering system and criminal procedures in a short blog like this one. I will leave that topic for another day. Confucianism, on the other hand, emphasizes the importance on one’s duty and obligation to social order rather than individual rights.

Its teachings can be loosely summarized by the Chinese phrase “Li Fa”

“Li” literally translates to “the way of reason with respect to others.” This word gave the Chinese culture a sense of positive measure for preventing crime as one’s obligation to society and its harmony. “Fa” is the word commonly used today for “law,” however, it is traditionally understood as a measure of punishment that is enforced only when there is a confession of crime.

From this we see the manifested “guan xi,” the relations of people as social capital to resolve disputes. Under this tradition, rule of law is only the last resort to resolve crime against the human condition by punishing the significant wrongs. Therefore, under this philosophical model, there has never been a rigid code of law in China. The Western understandings of social order under the “rule of law” is difficult to enforce and implement since one’s good conduct has to come from the individual’s desire to do good. Legalism was established in 338 BCE and was employed by the first emperor of China.
It is a tradition that continued throughout the dynasties because it was successfully employed in unifying China. Therefore it has flourished with the establishment of a Chinese identity by Qin Shi Huan, the first emperor of China, in 221 BC. During the early 1900s, China took steps to reform its legal system due to significant amount of foreign economic trade with China and increasing number of trade disputes. In 1902, Emperor Guang Xu appointed a law reform commission, and in 1906 China established its first Supreme Court to indicate its willingness to develop a sound legal structure so they may be accepted into the international community and enjoy equal treatment by the foreign powers of the time.
Between 1912 and 1949, China promulgated criminal as well as commercial laws to continue its legal developments. However, since the establishment of the PRC in 1949, the Communist Party has attempted to eliminate feudalistic influences and felt that foreign influences cannot be tolerated in China either. China closed its doors, abolished the Nationalist (GMD)’s six codes of law and enacted a temporary basic laws heavily borrowed from the Soviets. This paved the ways for China’s future legal development. Because both Maoism and Confucianism avoided written laws in favor of general principles, community mediators are widely used as lawyers in a very loose sense to help resolve civil disputes. Mao also drew heavily from Legalism and believed that the State is the only authority in determining right from wrong. During the Cultural Revolution, this drew significant support from the Gang of Four and they became what people referred to as “Tou Huan De,” translated as “the mud emperors.” The people at this time leveraged their outward support of Maoism to act lawlessly. They used communist ideologies and extremist left thinking to find everyone who is not of their line of beliefs guilty of a crime. Punishment was carried out on the streets with significant violence. When the Gang of Four was finally arrested, and China’s legal reforms resumed, China introduced its Four Modernization policy in 1978.
This policy stressed the need to prevent lawlessness of the Cultural Revolution and the importance of developing its legal system for the purpose of stability and continuity to guarantee the people equal protection before the law. The two Constitutions in place in 1975 and 1978 still reflected the extreme leftist thinking of Maoist Cultural Revolution. However, in 1982, the NPC put forth a Constitution aimed to build legitimacy and stability. At this time, Deng Xiao Peng also pushed forward a massive legal education campaign to the citizens of China.
This campaign widely distributed the concept of “rule of law” to encourage social structure that was needed for the opening up policy and attracting foreign investments. This campaign is successful in many ways but also attracted a deeper understanding of inherent rights of the citizens by the Chinese people. Because of both economic development and foreign investment, the opening up policy, the recognition of private property, and the increasing understanding of citizenship and rights, Chinese people are slowly abandoning the traditional system of mediation for the adjudication process involving lawyer representations. In old China, there were no lawyers. Before the establishment of legal education, “lawyers” were trained by teachers as apprentices. Due to the influence of Confucianism, and Maoism in modern times, Chinese people have not supported the use of lawyers. Even during the 1982 campaign of rule of law, lawyers were agents of the State and did not represent the interests of the people. In 1978, China had about 2000 law students. In 1980, the Ministry of Justice issued a regulation that governed the legal profession in China requiring certification from the MOJ for lawyers and that lawyers be patriotic and support the socialist system. In 1985, the NPC standing committee initiated a five year public campaign under the 1982 rule of law campaign. In 1997, NPC issued the first comprehensive law governing the legal profession where lawyers were considered as functionaries of the state.
Today, Chinese lawyers are not agents of the State and do attempt to represent their clients even against State’s interests. Today’s lawyers are organized and supervised by the State as well as the bar association. The MOJ is responsible for qualification exams and licensing. Finally in 2004, with the last amendment of its 1982 Constitution to date, China recognized human rights as an important right of its people in Article 33, and recognized China as a socialist country of law in Article 5. Today, China is pushing forward a slow progression to meet the WTO’s transparency obligations.
However, there are still number of “Nei Bu” – internal policies that is unpublished concerning the implementation and interpretations of codified laws. While some Chinese lawyers may have guan xi to access these internal documents, foreigners are strictly forbidden to access these. This reflects a Chinese desire to maintain internal preservation of rule without outside influences. The Chinese criminal system has traditionally been inseparable from the political system. There were also no distinctions between civil and criminal adjudication. There was no separation of power and the local officials were the judge and executioner.
The old Chinese belief regarding Criminal law is that confession is the key. One of the four most famous strange cases illustrated this: Xiao Bai Chai was a young lady who was tortured and confessed to witnessing another man’s crime of murder. The man also confessed under torture. The man’s family appealed and took the case all the way up to the emperor. In the end, he saw justice and was set free. Today, this story is repeated by school children to honor the justice done by the ruling power; however, we may see this as an example that confession is at the heart of Chinese criminal prosecution. With the changing of Chinese legal culture, and Article 33’s recognition of human rights, lawyers who are now no longer the functionaries of the state and are receiving better education developing an awareness of their role in China’s social and economical development. The government as well recognizes the importance of standardizing their criminal and legal structure, educating their judges to give confidence to foreign investments. (At one point, most of the judges were not educated and were appointed simply for their guan xi, their military service, or other reasons.

Today, China is aggressively changing the educational requirements of its judges and lawyers, and ensuring a confident legal system.) Looking at the more recent developments, we see more litigation since the 1980s.

We see reforms in the judicial education and methods. We see more judicial interpretations and informal law making process. We recognize that Chinese lawyers are taking on a more and more significant role in its society. The old single rule system by either the emperor or the Communist party is rapidly changing to a new distributed power structure because of China’s WTO agreement exposing its legal and economical system to outside influences. However, China still has a long way to go. There are still underground lawyers who do not have a license and they are popular from the old mediation mentality.
The Bar exam passing rate is low because of low level of quality education. Violations of human rights are still significant and torture is still a method to be used to gain confession for crimes. If China is to seek a truly stable socialist market economy and encourage more foreign investments, it has to provide a more reliable and predicable legal system and more confident lawyers. It also may want to consider allowing foreign lawyers to practice in China and allow judicial interpretations and reviews to stand more ground. This allows a health way of legal development.

Learning Chinese

Plugin for translation

Simply put, this is the #1 ultimate online tool for learning Chinese! Just install the plugin, turn it on, go to a site with any Chinese (it handles both Simplified & Traditional), and hover over any of the characters to see the pinyin, tones, and English translation. It’s like surfing the web with x-ray glasses!

Google Translate

What can I say? Google is pretty much awesome at whatever they do and Google Translate is no exception. Not only can it handle English -> Chinese & Chinese -> English, but any other language combination as well. I must say however, that I don’t recommend this tool for translating more than simply words or phases, especially if you’re thinking of sending someone a note in your foreign language – they’d could probably decipher your intended meaning, but it will not be spoken like a native speaker. So is there room for improvement? Certainly, but seeing as how they’ve already made cars that can drive themselves it’s only a matter of time before they figure this out too.

Chinese Video Websites

Here in the West, we have YouTube and Vimeo, but China has its own set of popular video hosting sites such as YouKu and Sohu. Whether you prefer watching movies or TV shows, here not only can you watch them in Chinese, but you can be sure that they’ll all have subtitles (Chinese subtitles that is, not necessarily English!).