The Tradition and Modern Transition of Chinese

Jinfan Zhang

The Tradition and Modern Transition of

Chief translator Zhang Lixin Other translators Yan Chen Li Xing Zhang Ye Xu Hongfen Jinfan Zhang University of Political Science and Law , People’s Republic of China

Sponsored by Chinese Fund for the Humanities and Social Sciences (本书获中华社会科学基金中华外译项目资助)

ISBN 978-3-642-23265-7 ISBN 978-3-642-23266-4 (eBook) DOI 10.1007/978-3-642-23266-4 Springer Heidelberg New York Dordrecht London

Library of Congress Control Number: 2014931393

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Springer is part of Springer Science+Business Media (www.springer.com) Pref ace

China is one of the world-known countries with ancient legal civilizations, and its can be traced back to the period of 3000 B.C., during which, the Chinese law has been inherited and continued by twists and turns, but has never stopped changing and developing, and it has become one of the features and advan- tages that the ancient Egypt, Babylon, India, and Persia had not possessed. Thus, it has endowed the Chinese legal tradition with a long history with distinctive origins and peculiar features deeply rooted in Chinese cultural soil; meanwhile, it has also represented the wisdom and creativity of the Chinese nationality. Moreover, it is extremely rare in the world for its integrity, systematicness, and the vast amount of legal works, law codes, imperial regulations and the archival materials of the past dynasties left over in history. This has not only eloquently illustrated the great contributions which the Chinese nation has made to the treasure house of the world legal civilizations, but also explained why the Chinese legal system has won the respect of many other countries, and for a long time it has stood erect in the legal history of the world. It goes without saying that the ancient Chinese law has always been developed with the development of the Chinese society. Especially, at the times of social transformation, great changes have also taken place in law, which has in turn accelerated the social transformation with its special function. Therefore, from the mutual relationship between law and society, we can grasp the periodicity and rules of the development of law and the typicality of the adaptability of the legal tradition to the Chinese national and social conditions. China has always been a united and multi-national country since ancient times. In history, because of the differences in the cultural, economic, and political development, different nationalities had occupied different historical positions and had made different contributions to the formation and evolution of Chinese legal tradition at different times. But in whatever cases, the Chinese legal tradition has been commonly created by the peoples of all nationalities; therefore, it is both the refl ection of people’s legal wisdom of all ethnic groups and the fruits of the mutual exchanges and integration of the legal culture and experience. However, such pluralism has not infl uenced the dominant position and the integration of the legal

v vi Preface tradition of the Han nationality in the area of Central Plains, on the contrary, like the sea taking in all rivers, the law of Han nationality in the area of Central Plains, having absorbed the legal culture of different ethnic groups, has formed its bright and colorful legal tradition with the feature of diversifi ed development. As far as the cultural origin of the Chinese law is concerned, there has also existed the integration of diversity and domination. From the pre- Dynasty (221 B.C.–206 B.C.), efforts had been made by different schools to dominate and infl uence the formation and evolution of ancient Chinese law and legal tradition with their principles, such as , Mohism, Taoism, and Legalism. However, in this process, there had existed one basic tendency, namely, the predominant position of Confucianism. In fact, the philosophy of Confucianism, along with its administrative principles, had been guiding the process of legal construction and the establishment of the general judicial standards, which were determined by the moral idealism deeply-rooted in the patriarchal society and the cultural soil of the integration of law, reason, and human relationship. After (206 B.C.–220 A.D.), the idea of “applying Confucianism in foreign policies, but legalism in domestic ones” had shown the integration of the thoughts of different schools with the dominance of Confucianism. The connotation of the Chinese legal tradition is very wide. Although there are both merits and demerits, there have always existed democratic factors across time and space. For example, the legal inclination toward humanism, the value orientation of legal impartiality, the appeal for the harmonious unity of “Tian” (heaven) and “Ren” (Man), the moral support of “De” (virtue) and “Li” (rites), the judicial responsibility of imposing punishments in accordance with law, and the political strategy of ruling the country by law, etc., have all manifested the most valuable essence in Chinese legal tradition. Therefore, in order to discover historical truth and to offer exact historical references for the modern legal system construction at present, a multi-perspective, multi-level and multi-dimensional research is urgently needed to be carried out. From above, it can be inferred that the Chinese legal tradition has by no means meant decadence and conservatism, and its national disposition is also not the “deeply- rooted wickedness”. Whether the traditional “goodness” or “wickedness”, they are all historical and cultural sediment which can only be renewed, but not be eradi- cated. The loss of tradition means the loss of the characteristics of national culture and the loss of historical and cultural foundation of the development. The aim of studying the Chinese legal tradition is to have a proper understanding of how the continuous self-improvement has been made by the Chinese law during its long evolution, and what position and value it has had in the social development, at the same time, to generalize the achievements of the rational thinking that has nourished China for over 5,000 years from the native legal tradition. The more profound the introspection, the more complete the criticism is for the tradition, the more exact we are in rejecting the dross and absorbing the essence in order to have a better understanding of the rules of the evolution of law, to raise the sense of national pride and confi dence, and to establish a Chinese legal system with Chinese characteristics in the great cause of reviving the Chinese nation. Preface vii

After in 1840, the closed door of Qing Empire to seclude the country from the outside world was opened by the gunfi re of the invaders. Thereafter, like the commodity goods from the western countries, the western legal culture also was rushed into China through various channels. As a result, the traditional Chinese law had encountered an unprecedented crisis because of the shaking of its social foundations. With the further introduction of “Xi Xue” (the western studies), the Chinese legal culture was greatly impacted and seriously challenged by those of the western countries. In the constant confl ict and integration, a transition was fi nally made in the native Chinese law to adapt to the laws of modern western bourgeoisie, hence, a new leaf was turned over in the modernization of Chinese law, which was a progressive and inevitable process of development in history. Though the native Chinese law had experienced golden times of Han, Tang, Song and Ming dynasties, it had been merely inherited historically by just following a set routine, nevertheless, it had lacked horizontal comparison, absorption and fundamental change. Consequently, in the middle of the nineteenth century, such a severe crisis was faced in the native Chinese law that “changes must be made”, because the legalization of the national policies like “agriculture-orientation” and “Zhong Nong Yi Shang” (encouraging agriculture and restraining commerce) had severely hindered economic growth. After Opium War, shocked by the tide of commodities from the western countries, some liberal-minded offi cials, thinkers, and big merchants had all supported to launch a commercial war to fi ght against the economic invasion of the western countries; moreover, they had also demanded that laws should be made by the Qing government so as to compensate and protect businessmen. Therefore, it was the business laws that were fi rstly reformed in the legal reform in the late . In addition, the autocratic law codes of Qing Dynasty had also hampered the initiative of the people who were often randomly punished. Gong Zizhen said, “The domestic affairs, no matter whether they are important or not, once they are restrained by the fi xed regulations, it is just like forcing a man having scabies to lie on a log and getting his arms and legs banded with a long rope. With his limbs being fi xed, even though he has the intolerable itch and pain on his skin, he cannot do anything but lie there, trying hard to calm down himself and paying scant attention to his problem”.1 It was also pointed out by Feng Guifen that “there are various and miscellaneous cases in the world, which cannot be fully covered by law. Until today, when we are laboring over the millions of the complicated legal issues, we get to know how wise and far-sighted those sages are when they were against making penal codes.”2 Hence, he had drawn the conclusion that the change of legal system and the revision of law was the only way out, which was also the hope expressed by the intellectual bureaucrats. However, the conservative rulers still kept clinging to the old idea that “if ‘Tian’ (heaven) does not change; nor does the ‘Dao’ (the way)”, and that “the laws made by ancestors are not to be changed”. Therefore, it can be

1 “Ming Liang Lun Si” (The Theory of Ming Liang: Part 4) in Gong Zi Zhen Quan Ji ( The Complete Works of Gong Zizhen). 2 “Preface” to Jiao Bin Lu Kang Yi ( Protest from Jiao Bin Lu). viii Preface seen that even if without Opium War, sooner or later, it is certain for Chinese law to begin its transition to modernization. Nevertheless, to some extent, Opium War had only acted as its catalyst. The modernization of Chinese law has gone through the following stages: 1. From “Shi Yi Chang Ji Yi Zhi Yi” (learning the advanced technologies from ‘barbarians’ in order to subdue them) to “Shao Bian Cheng ” (making laws by slightly changing the western laws) From the chauvinistic viewpoint of Han nationality, the rulers in ancient times had made great efforts to strengthen “Yi Xia Zhi Fang” (guarding against the barbarians or the foreigners), and they had insisted on “applying Chinese laws to punish the foreign invaders”. However, after Opium War, the Qing Empire had lost its national dignity and was humiliated by the western powers. Therefore, in order to “Jiu Wang Tu Cun” (saving the nation from subjugation and ensuring its survival), the open-minded philosophers had suggested “Shi Yi Chang Ji Yi Zhi Yi” (learning the advanced technologies from ‘barbarians’ in order to subdue them), which meant that the learning of the modern technology from western countries would enable China to become a rich country with strong armed forces. Later on, the bureaucrats of the “Yang Wu Pai” (The Westernization Group), who had advocated “Zhong Ti Xi Yong” (studying western science and technology under Chinese traditional culture) put forward the policy of “Shao Bian Cheng Fa” (making laws by slightly changing the western laws) and suggested introducing the laws in the western countries into China. Besides, they were also opposed to the conservative ethos in which the established practices had been upheld. William M. P. Martin, an American missionary (afterward became an interpreter of the Consulate General), had completely translated Henry Wheaton’s book about international law into Chinese, and when the book was presented to “Zong Li Ya Men” (Offi ce in charge of Affairs of all Nations), both Prince Yi Xin and Prince Wen Xiang were absolutely delighted because it had perfectly met the urgent need at that time. Soon the book was revised, polished, and later named Wan Guo Gong Fa ( Elements of International Law ). More than 300 copies of the book were issued and distributed to the open ports as the standard work of reference in dealing with foreign affairs. In fact, after Qing Dynasty was forced to open up to the outside world, the problem of how to deal with the various problems in negotiation with the western powers had become one of reasons to foster the Chinese legal transition. 2. From “the reform of monarchy” to “the establishment of legal system by modeling on the western ones” From 1870s to the end of the nineteenth century, the thinkers of “Gai Liang Pai” (the early reformists) had already realized that “it is not just the solid ships and powerful weapons, but the parliaments, the concerted efforts made by the high and the low, and the proper education offered that has brought about the social stability and prosperity in the western countries”.3 So they had turned their eyes to the reform

3 Zheng Guanying, Sheng Shi Yan ( Crisis Awareness in Heyday), Vol. 5. Preface ix of the government of the autocratic monarchy and had advocated the establishment of parliaments so as to keep the rulers and the people informed. In 1898, when and started “Bai Ri Wei Xin” (hundred days’ reform), they had not only proposed the establishment of parliament, the opening of congress, the drafting of constitution, and the implementation of separation of the powers, but also put forward the idea of setting up the new legal systems by modeling on those of the western countries. In “Shang Qing Di Liu Shu” (The Sixth Memorial to Qing Emperor), Kang Youwei had emphasized that: Now Roman, British, American, German, French and Japanese laws should be adopted in order to have ours revised and re-enforced. …, detailed rules have been stipulated in the civil laws, civil statutes, commercial laws, city regulations, ship regulations, litigation laws, military laws, and international laws by the westerners. And as is prescribed in the law, neither markets nor trade relations can be closed up or stopped randomly. If there were no laws, there would be no standards to regulate people’s behaviors; consequently, numerous problems would arise. Moreover, the laws like those in the western countries have never been made in our country; therefore, it is high time that they should be made to make up for what we have lacked. So, some special departments should be set up to have the western laws adopted and to work out new rules and regulations of our own. But unfortunately, Kang Youwei’s proposals were abortive because of the failure of “Bai Ri Wei Xin” (hundred days’ reform). 3. From the preparation of constitutionalism to the overall law revision After “Yi He Tuan Yu Dong” (The Boxer Rebellion Movement) and the signing of Xin Chou Tiao Yue (The Peace Treaty of 1901), it was impossible for the Qing government to rule the country in the same way as before, therefore, a complete new policy was proclaimed to be carried out to make a fresh start. After the Russo- Japanese War in 1905, under the pressure of the public opinion that “Japan has succeeded because of the implementation of constitutionalism but Russia has failed because of the dictatorship”, preparation for constitutionalism was promulgated by the Qing government. During this time, Shen Jiaben and Wu Tingfang were appointed the ministers in charge of law revision to have a complete revision of the law. Just within a couple of years, the revision of the departmental laws had been completed by the Qing government by modeling on the continental legal system, which was an important step forward in the modernization of Chinese law. Though the Qing government was beginning to go to decline, and many of the rules and regulations were not able to be put into practice, some of them were either adopted later by or had served very important foundations for the government of the Republic of China in making new laws. In a word, the law revision in the late Qing Dynasty was a proclamation to end the native Chinese legal history; in the end, the Chinese legal system was given way to the western legal civilization. The modern transition of Chinese law was following the route of the western legal system, which was not designed by any authorities, nor was forced by any political power; instead, it was an inevitable choice under some certain historical conditions. Although, unavoidably, in this transition there were plagiarism and confl icts between both form and content and ideal and reality, what it had motivated was not x Preface just the change in the layer of systems, but profound ideological connotations which it had contained. By centering on the historical main trend of “Jiu Wang Tu Cun” (saving the nation from subjugation and ensuring its survival) and regaining the sovereignty, it had not only greatly inspired and encouraged the people’s spirit of reform but also shown the improvement of the new cultural qualities and legal consciousness of the Chinese nation. Consequently, Qing Dynasty which had continued for 268 years was replaced by the Republic of China with the system of democratic republic. If law revision in the late Qing Dynasty is regarded as an important beginning of modern Chinese legal transition, then the later periods, such as the Republic of China, the People’s Republic of China, and the current reform and open-up to the outside world, can all be regarded as the historical stages in which the Chinese law has experienced toward modernization. Because social development is constantly continuous, there is only periodicity but no ending for the modernization of law. Because the modern transition of Chinese law was implemented in the background of national crisis, and a full-scale westernization was taken as its value orientation, in the process of transition, neither a rational consideration was given to the democratic factors in the Chinese legal tradition, nor a rational analysis was given to the suitability of western laws to the Chinese national conditions. Ultimately, although Chinese law had moved toward modernization, it had lost the autonomy and creativity of the Chinese legal system. If there was no time for our forefathers to have the necessary introspection, now it is for us to shoulder the historical task. At present, when there are more legal cultural exchanges between different countries, it needs to be seriously reflected and summarized how to go our own way by tactfully combining the tradition with the creation, the history with the reality, and China with the world in establishing a socialist legal system with Chinese characteristics. The book was fi rstly published by Law Press in 1997, and when the second edition of the book was published in 2005, it had been greatly revised. This book, the third revision, is written on the basis of my research undertaken in the past years. I sincerely hope my readers will kindly put forward their criticisms and suggestions for further improvement.

Los Angles Jinfan Zhang July, 2008 Contents

Part I The Tradition of Chinese Law

1 To Introduce “Li” (Rites) into Law and to Integrate “Li” (Rites) with Law ...... 3 1.1 The Origin of “Li” (Rites) ...... 3 1.2 The Function of “Li” (Rites) ...... 11 1.2.1 To Distinguish Human Beings from Beasts, and the Civilized from the Barbarians ...... 13 1.2.2 To Distinguish the Noble from the Humble, and the Superior from the Inferior ...... 16 1.2.3 To Administer the Government and to Stabilize the State ...... 19 1.2.4 To Be the Guideline for Proper Conducts and to Be the Criterion for the Right and the Wrong ...... 22 1.3 The Introduction of “Li” (Rites) into Law ...... 24 1.3.1 Drawing a Lesson from the Extinction of and Creating Public Opinions for Bringing “Li” (Rites) into Law ...... 26 1.3.2 Introducing the Spirit of “Li” into Law Through Legislation and the Interpretations of the Current Law...... 28 1.3.3 Settling Lawsuits with Chun Qiu (Spring and Autumn Annals) ...... 30 1.4 The Combination of “Li” (Rites) and Law ...... 32 1.4.1 Laws Made Under the Guidance of “Li” (Rites) ...... 35 1.4.2 The Code and Doctrines of Rites Directly Included in Law ...... 36 1.4.3 Trial and Punishment Guided by the Principles of “Li” (Rites) ...... 37 1.4.4 “Li” (Rites) and Law Complementary to Each Other to Maintain Social Stability and the Long-Lasting Prosperity of the State ...... 39

xi xii Contents

2 To Regard Human Being as a Standard, to Promote Morality and to Inflict Penalty with Prudence ...... 41 2.1 The Formation and Development of Ancient Chinese Humanistic Ideas ...... 41 2.2 Traditional Chinese Law Infl uenced by Humanistic Ideas ...... 48 2.2.1 “De Zhu Xing Fu” (Employing Moral Teaching as the Primary Means, Punishment as the Supplement) and Laying Stress on Moralization ...... 48 2.2.2 Rejecting the Adjudication of the Supernatural Beings and Stressing Evidence in Court ...... 51 2.2.3 Being Benevolent and Prudent in the Use of Punishment and Cherishing Human Life ...... 54 2.3 Refl ections on Humanistic Ideas in the Traditional Chinese Law ...... 62 3 Rights Differentiated, Duty as a Standard...... 65 3.1 Differentiated Legislation ...... 65 3.2 Judicial Privileges ...... 74 3.3 Duty as a Standard ...... 79 4 Advocating Impartiality, Emphasizing Criminal Law and Neglecting ...... 85 4.1 The Discussions on Legal Impartiality ...... 85 4.2 The Legal Principles Embodying Impartiality ...... 89 4.2.1 “All Judgments Made According to Law” and “No Impartiality for Punishments” ...... 89 4.2.2 The Enforcement of Public Law and Abandoning of , and Making the Country Prosperous and Bringing People Peace and Stability ...... 93 4.2.3 Granting Awards in the Light of Merits Achieved, and Enforcing Punishments in the Light of Crimes Committed ...... 95 4.2.4 The Faithful Enforcement of Law and the Impartiality in Justice ...... 99 4.2.5 The Principle of Integrity Acting as a Standard for Civil Acts ...... 103 4.3 The Emphasis of Criminal Law and Neglecting of Civil Law ...... 106 4.3.1 The Synonymous Connotation of Law and Punishment and Regarding Preventing Violence and Stopping Evils as Its Basic Function ...... 106 4.3.2 The Penal Code Applied as the Main Code in Different Dynasties ...... 110 4.3.3 The Strictness of the Penalty System and the Brutality of the Penal Methods...... 113 4.3.4 The Refl ection of “Zhong Xing Qing Min” (Stressing the Criminal Law and Neglecting the Civil Law) in the Judicial System ...... 119 Contents xiii

5 Following “Tian Li” (Heavenly Principles) and Enforcing Laws According to the Concrete Situations of Specific Cases ...... 129 5.1 The Connection of “Tian Li” (Heavenly Principles) and National Law ...... 129 5.2 The Combination of the National Law and Human Relationships ...... 134 5.2.1 The Legalization of Family Affection ...... 137 5.2.2 “Zhi Fa Yuan Qing” (Executing Law According to the Concrete Situations of Specifi c Issues) ...... 145 5.3 The Harmonious Unifi cation of “Tian Li” (Heavenly Principles), National Law and “Ren Qing” (Human Feelings) ...... 150 6 The Law Deriving from Monarch, the Monarchy Power Overtopping Law ...... 153 6.1 The Power of Absolute Monarchy and the Legal System in the Pre-Qin Periods ...... 153 6.2 The Systematization and Legislation of Imperial Power ...... 158 6.2.1 The Systematization of Imperial Power ...... 159 6.2.2 The Legalization of the Imperial Power ...... 164 6.3 The Confl icts Between the Imperial Power and Law ...... 181 7 Clan Orientation and the Ethical Rule of Law ...... 187 7.1 Clan Regulations as Signifi cant Parts of the Traditional Laws ...... 187 7.2 The Evolution of Ethical Clan Law ...... 190 7.3 The Concrete Contents of Ethical Law and Embodiment of Patriarchal Power ...... 194 7.4 The Social Causes of Clan-Oriented Ethical Law ...... 207 8 Regulating Official by Law, Defining Duties and Obligations ...... 213 8.1 The Appointment and Organization of Offi cials ...... 214 8.2 The Appointment, Removal, Examination and Promotion of Offi cials ...... 223 8.3 The Assessment, Reward and Punishment of Offi cials ...... 232 8.4 The Salaries and Retirements of Offi cials...... 239 8.5 The Common Supervision and Legal Restriction of the Offi cials ...... 243 8.6 The Requirement for Offi cials to Hold Trials According to Complaint and to Make Convictions by Law ...... 258 9 Historical Comparison and Timely Adjustment of the Legal System ...... 265 9.1 Drawing Lessons from the Preceding Dynasties and Establishing the Priorities of the Legal System Construction ...... 266 9.2 The Continuous Adjustment of the Structure of Legal Codes by Comparison ...... 271 9.3 The Contents of Legislation Being More Appropriate and Closer to Real Life by Comparison ...... 285 xiv Contents

10 Unified Interpretation of Law and Unparalleled Flourishing of “Lv Xue” ...... 297 10.1 The Evolution of “Lv Xue” (The Study of Statutory Laws) in Ancient Times ...... 297 10.1.1 “Lv Xue” (The Study of Statutory Laws) in Qin and Han Dynasties ...... 298 10.1.2 “Lv Xue” (The Study of Statutory Laws) in Wei and Jin Dynasties ...... 305 10.1.3 “Lv Xue” (The Study of Statutory Laws) in ...... 308 10.1.4 “Lv Xue” (The Study of Statutory Laws) in Song and Yuan Dynasties ...... 311 10.1.5 “Lv Xue” (The Study of Statutory Laws) in Ming and Qing Dynasties ...... 313 10.2 The Achievements of “Lv Xue” (The Study of Statutory Laws) in Qing Dynasty ...... 315 10.2.1 The Simultaneous Development of Both Offi cial and Private “Lv Xue” (The Study of Statutory Laws) with the Diversifi cation of Schools ...... 315 10.2.2 Stemming from Yet Transcending the Traditions ...... 316 10.2.3 Exhaustive Textual Researches and Meticulous Elaborations ...... 317 10.2.4 The Improvement of Legislation and Judicature ...... 317 10.3 The Basic Characteristics of “Lv Xue” (The Study of Statutory Laws) in Ancient China ...... 319 10.4 The Comparison of Chinese and Western Legal Cultures ...... 325 11 “Zhu Fa Bing Cun” (The Coexistence of Various Laws) and “Min Xing You Fen” (The Differentiation Between Civil and Criminal Laws) ...... 331 11.1 The Inheritance and Conservativeness of Legal Codes in Styles ...... 331 11.2 “Zhu Fa Bing Cun” (The Coexistence of Various Laws) and “Min Xing You Fen” (The Differentiation Between Civil and Criminal Laws) in Legal System ...... 338 11.2.1 The Development of Ancient Chinese Administrative Law and Its Characteristics ...... 339 11.2.2 The Development of Ancient Chinese Civil Law and Its Characteristics ...... 351 12 Revising Laws by Legislation and Citing by “Bi Fu” (Legal Analogy) ...... 371 12.1 The Status of the Statute Laws in the Traditional Laws ...... 371 12.2 The Evolution and Function of Case Law ...... 378 12.3 The Interaction of Statute Law and Case Law ...... 396 Contents xv

13 Making Convictions by Law and Making Judgments by Analogy ...... 401 13.1 The Controversies over Making Convictions by Law and Making Judgments by Analogy Caused by the Announcement of Statute Law ...... 401 13.2 Making Convictions by Law and Making Sentences by Analogy in Qin and Han Dynasties ...... 404 13.3 Making Convictions by Law, and Carrying Out Punishments by Analogy ...... 409 13.4 Holding Court Trials in Separate Departments and Making Convictions According to Law ...... 415 13.5 Holding Trials by Law and Making Convictions by “Bi Fu” in Extreme Autocratic System ...... 422 14 Pursuing No Litigation, and Settling Conflicts by Mediation...... 429 14.1 “No Litigation” as a Perfect Realm of Confucianism ...... 429 14.2 Achieving “No Litigation” by Settling Confl icts Through Mediation ...... 435 14.2.1 The Offi cial Mediation by “Zhou” (Subprefecture) and “Xian” (County) ...... 436 14.2.2 Civil Mediation ...... 439 14.3 “No Litigation” as the Basis of Ancient Chinese Legal Tradition . 446 14.3.1 The Social Origin...... 446 14.3.2 The Ideological and Cultural Origin ...... 448 14.3.3 The Political Origin ...... 450 14.4 “No Litigation” Carried Out at the Price of Avoiding the Burden of Prosecution ...... 451 15 The Contribution to Chinese Legal System by All Nationalities in China ...... 457 15.1 The Chinese Legal System and the World ...... 457 15.2 The Creation of Chinese Legal System by All Nationalities in China ...... 461

Part II The Modern Transition of Chinese Law

16 The Introduction of Western Legal Culture ...... 469 16.1 China and the World Before the Opium War ...... 469 16.1.1 The Secluded China ...... 469 16.1.2 The Social Crisis in China and the Threat of Western Invasion at the Eve of Opium War ...... 471 16.2 The Introduction of Western Legal Culture and the Breaking Up of the Seclusion of Chinese Traditional Legal Culture ...... 476 16.2.1 Beginning to “Open the Eyes and See the World” ...... 476 16.2.2 The Media of Introducing the Western Legal Culture— Missionaries, Merchants, and Foreign Advisors ...... 477 xvi Contents

16.2.3 The Infl uence of Western Legal Culture by Way of Consular Jurisdiction ...... 481 16.2.4 The Introduction and Acceptance of International Legal Concepts ...... 485 16.3 The Wide Spreading of Modern Legal Culture by Translating and Publishing ...... 490 16.3.1 The Books and Newspapers Spearheaded the Trend ...... 490 16.3.2 The Compilation and Translation of Large Amount of Legal Works Before and After “Wu Xu Bian Fa” (Wu Xu Reform) ...... 494 16.4 The Introduction of Western Legal Culture by the Chinese Overseas Returnees ...... 500 16.4.1 The Western Countries Described by the Travellers ...... 500 16.4.2 The Western Legal Culture Spread by Overseas Students ...... 503 16.4.3 The Promotion of Democratic Legal System in Late Qing Dynasty by Ambassadors ...... 506 17 The Change of Traditional Legal Concepts ...... 511 17.1 From Adhering to the Established Statutes to Conducting Reforms by Learning from the West ...... 511 17.1.1 Criticism on the Laws and Judicial Systems of Qing Dynasty...... 512 17.1.2 The Formation of the Concept of Conducting Reforms by Learning from the West ...... 514 17.2 From the Maintenance of “San Gang” (Three Cardinal Guides) to Its Criticism...... 518 17.3 From Discriminating Against Foreigners Blindly to “Zhong Ti Xi Yong” (Studying Western Science and Technology Under Chinese Traditional Culture) ...... 521 17.4 From Absolute Autocracy to Constitutional Republic ...... 523 17.5 From “Ren Zhi” (The Ruling of Man) to “Fa Zhi” (The Ruling of Law) ...... 532 17.6 From Duty-Orientation to the Pursuit of Rights ...... 537 17.6.1 On Human Rights ...... 538 17.6.2 On the Rights of Liberty and Equality...... 539 17.7 From the Integration of Judiciary and Administration to Judicial Independence ...... 547 17.8 From Regarding Punishments as the Priority to the Emphasis of Various Laws ...... 550 18 The Thoughts and Practices of Legal Reform in the Transitional Process ...... 555 18.1 The Making of Laws by Slight Changes and the Introduction of Western Laws by “Yang Wu Pai” (The Westernization Group) ...... 555 Contents xvii

18.1.1 The Guiding Principle of the Legal Reform by “Yang Wu Pai” (The Westernization Group) ...... 556 18.1.2 The Main Contents of the Legal Reform by “Yang Wu Pai” (The Westernization Group) ...... 561 18.1.3 The Evaluation of the Legal Reform by “Yang Wu Pai” (The Westernization Group) ...... 570 18.2 “Wu Xu Bian Fa” (Wu Xu Reform) and Legal Reform ...... 571 18.2.1 The Guiding Principle of the Reform by “Wei Xin Pai” (The Later Reformists) ...... 573 18.2.2 The Evaluation of the Reform Ideology and Practices of “Wei Xin Pai” (The Later Reformists) ...... 584 18.3 The Legal Modernization in Late Qing Dynasty ...... 586 18.3.1 Constitutionalism and Constitution ...... 586 18.3.2 The Amendment and Revision of Administrative Laws...... 610 18.3.3 The Law Revision and Judicial Reform in Late Qing Dynasty ...... 618 19 The Continuing Progress of the Modern Legal Transition During the Period of the Republic of China ...... 671 19.1 The Background of the Continuing Progress ...... 672 19.2 The Ideological Basis for the Continuing Progress ...... 673 19.3 The Process and Achievements of the Continuing Progress ...... 679 19.3.1 Equality and Civil Rights Legislation ...... 680 19.3.2 The Offi cial System Legislation ...... 683 19.3.3 The Civil Affairs Legislation ...... 684 19.3.4 The Criminal Law Legislation ...... 686 19.3.5 The Continuing Reform of Legal System ...... 688 20 The Historical Value of the Modern Transition of Chinese Law and the Experience for Reference ...... 695 20.1 The Westernized form of the Modern Transition of Chinese Law ...... 695 20.2 The Orientation and Historical References of the Modern Transition of Chinese Law ...... 700 20.2.1 The Reasons for Adopting the Continental Legal System ...... 700 20.2.2 The Historical Lessons for Reference ...... 702