The impact of the Western legal tradition on China and Japan

Transcription

1 The impact of the Western legal tradition on China and Japan 30 November 2017 Comparative Legal Systems University of Florence, School of Law 1

2 CHINA The core country of the East Asian Region Written language Philosophy/ideology (mainly Confucianism) Legal instruments 中国 Zhong guo (The country in the middle) 2

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4 Traditional Chinese Law CONFUCIANISM Lead the people by regulations (fa), keep them in order by punishment, and they will flee from you and lose all self-respect. But lead them by virtue and keep them in order by established morality (li), and they will keep their self-respect and come to you. Confucius ( B.C.) 4

5 GOAL The tenets of Confucian ideology HARMONY within society and in Emperor 王 (The Mandate of Heaven) interpersonal relationships Society was organized according to two principles: Hierarchical principle Differentiation principle Chinese society was based on the idea of duties, not rights The administration relied on a meritocratic system based on Imperial Examination (Confucianism as text books) Chinese people were literati. 5

6 Observing and following the moral rules of the nature (identified as Confucian rites: the so called 礼 li in Chinese) Written law, known as 法 fa was a necessary evil, mainly criminal law (from a Western point of view punishments) Courts and the formal resolution of disputes were to be avoided just the people not able to follow Confucius rites/moral rules needed a court Mediation within the family, a clan, a village must be preferred The concept of group was the basis of the Chinese society, individualism and individual freedom were not values in traditional China 6

7 China and the Western Legal Tradition: Five stages 1) The Opium Wars ( and ) and the End of the Empire (1911) 2) The Republic of China and the role of the National Party ( ) 3) The Maoist Era ( ) 4) The Modernization ( ) 5) The Globalization ( today ) 7

8 1) The Opium Wars / Unequal Treaties and Extraterritoriality Clauses The Western ideas of traditional Chinese law China seemed without law: Among scholars this ideas has been shared until nowadays e.g. R. David (1992): In China the law has a minor role The Shen Jiaben experience draft civil code, attempts to write a constitution The Collapse of the Empire (1911) 8

9 An example of extraterritoriality clause (China-USA Treaty, 1844) Subjects of China who may be guilty of any criminal act towards citizens of the United States shall be arrested and punished by the Chinese authorities according to the laws of China, and citizens of the United States who may commit any crime in China shall be subject to be tried and punished only by the Consul or other public functionary of the United States authorized according to the laws of the United States; and in order to the prevention of all controversy and dissatisfaction justice shall be equitably and impartially administered on both sides. Unsuitableness of Chinese traditional law 9

10 2) The Republic of China and the role of the National Party ( ) ATTEMPT TO MODERNIZE = WESTERNIZATION Chiang Kai-Shek and the SIX CODES ( ) Abolition of the Imperial Examinations and introduction of Western-oriented universities German Law appeared to be the most suitable law, nevertheless, the Six Codes did not fully penetrated within the society 10

11 3) The Maoist Era ( ) A new layer: socialist law Rejection of Western law and models (= abolition of the Six Codes) : Cultural Revolution (Ministry of Justice, Law Schools and courts were closed down) Legal nihilism 11

12 4) The Modernization ( ) Deng Xiaoping the Open Door Policy (enactment of new western-oriented legislation) Planned Economy v. Socialist Market Economy Collective and State Property v. Private Property ( a first step ) BUT Maoist principles such as the Democratic centralism and the Leadership of the Chinese Communist Party are still in the Constitution (1982) BALANCE BETWEEN TRADITIONAL, SOCIALIST AND WESTERN PRINCIPLES 12

13 An example: Judicial review in China? There is no Constitutional Court Chinese courts are not empowered to challenge legislation THEREFORE The task to interpret and eventually modify the legislation incompatible with the Constitution is performed by a branch of the legislative power (Standing Committee of the National Assembly) There is no separation of powers doctrine within the Chinese Constitution The Legislative body is supreme 13

14 5) The Globalisation (1999- today) 1999 (Socialist rule of law constitutional amendment) Article 5 The People s Republic of China governs the country according to law and makes it a socialist country under rule of law. The State upholds the uniformity and dignity of the socialist legal system. No laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organization or individual is privileged to be beyond the Constitution or other laws. Unprecedented economic growth and foreign investments The problem is in the implementation, not in legislation BUT Constitutional Reform instrumental to economic growth common law principles enter the Chinese legal system 14

15 The guiding case mechanism 2011 The Supreme People s Court shall determine and uniformly release as Guiding Cases those cases that have the effect of guiding adjudication and enforcement work in courts throughout the country. Provisions of the Supreme People s Court on Case Guidance (art.2): The Guiding Cases referred to in this set of Provisions mean the rulings and judgments that have taken legal effect and which are cases that meet the following conditions: (i) are of widespread concern in society; (ii) legal provisions are of relatively general nature; (iii) are of a typical nature; (iv) are difficult, complicated, or of new types; [or] (v) other cases having a guiding effect.. 15

16 JAPAN Traditional Japanese Law Chinese influence, but with some differences The Emperor and Amaterasu Godness The Japanese dual system - Tenno = Emperor = Authority without power - Shogun = Effective centre of power The importance of being a warrior 16

17 Tokugawa Family Legal reforms according to Confucian principles Courts and the formal resolution of disputes were to be avoided, just the people not able to follow Confucius rites/moral rules needed a court Unequal treaties (like in China) Mid-19 th century e.g USA and UK; 1858 France, Russia, The Netherlands Extraterritoriality clause Inadequacy of the Japanese legal system R. David: absence of law in Japan End of the Tokugawa Shogun 17

18 Japan and the Western Legal Tradition Two stages 1) The Meiji Restoration (from 1868) modernisation and legal reforms according to Western models 2) The Second Post World War (from 1947) US influence 18

19 1) The Meiji Restoration The Impact on Japanese law of: The French Civil Code 1804 (Boissonade, a French scholar) The German Civil Code 1900 The study of the Prussian Constitution RESULTED IN: The 1898 Japanese Civil Code = translation of the BGB The 1889 Constitution based on the Prussian model (but Emperor of divine origin) 19

20 2) US influence after WW II 1947 Constitution Art. 1 = Emperor as a symbol, no more of divine origin Separation of powers Equality principle (woman and man) Judicial review of legislation The Supreme Court has the power of judicial review the challenged law does not apply to the concrete case, but remains in force. The reported decision is transmitted to Parliament which will decide wheather remove or not the legislation. The Legal Profession (Law Schools based on the USA model) Adversarial procedure (cross examination, discovery 20

21 BUT Japanese traditional law is a substratum Chotei (mediation within the courts) Giri (informal rules spontaneously followed in order to avoid social blame) 21