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CRIMINAL PROCEDURE IN CONTEMPORARY CHINA: SOCIALIST, CIVILIAN OR TRADITIONAL?

Published online by Cambridge University Press:  11 November 2010

Bo Yin
Affiliation:
Doctoral Candidate and Research Assistant, School of Law, University of Aberdeen; E-mail: b.yin@abdn.ac.uk.
Peter Duff
Affiliation:
Professor of Criminal Justice, School of Law, University of Aberdeen; E-mail: p.duff@abdn.ac.uk.

Extract

Taxonomy, as a methodological tool introduced from natural science, brought the categorization of legal systems to comparative law.1 The term ‘legal family’2 is normally used as a metaphor, because it recognizes that within each grouping there are many variations. Each of the legal families is regarded as a combination of fundamental features of legal systems which have certain similarities. As an analytical device, taxonomy renders the comparison of different laws and legal institutions manageable by means of simplifying or abstracting the diverse and complicated realities of a myriad of legal systems. As a result, the concept of legal families acts as a support for legal borrowing and transplantation, as well as comprising an inevitable part of most comparative law works. Even where as few as two jurisdictions are involved, the categorization of legal families is still a useful tool for most comparative legal analysis. Assisted by the notion of legal families, comparativists can readily understand and explore an unfamiliar legal system.3 Normally, such scholars tend to accept the conventional or widely accepted categorization of a particular legal system as belonging to a certain legal family. However, without detailed scrutiny of the first-hand material, distortions may arise as a result of preconceptions held at the beginning of the comparative study.4

Type
Shorter Articles
Copyright
Copyright © 2010 British Institute of International and Comparative Law

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References

1 Husa treats the grouping of legal systems as an approach similar to that by which ‘the botanist classifies plants and creates taxonomies’. See J Husa, ‘Legal Families and Research in Comparative Law’ (2001) 1 Global Jurist 1 ; Mattei states that ‘taxonomy allows lawyers to communicate with each other in order to discuss homogeneous problems and propose principled solutions’. He describes taxonomy as ‘the grammar of the legal discourse’. See Mattei, U, ‘Three Patterns of Law: Taxonomy and Change in the World's Legal Systems’ (1997) 45 Am J Com L 5CrossRefGoogle Scholar.

2 Apart from the term ‘legal family’ other phrases often used in this context are ‘legal group’, ‘legal genealogy’, and ‘legal tradition’.

3 See Husa (n 1).

4 Cruz draws attention to this problem when discussing the techniques of comparative law. See P de Cruz, Comparative Law in a Changing World (1st edn, Cavendish, London 1995) 232–235.

5 The original terms are ‘Common law family’, ‘Romano-Germanic family’, ‘family of Socialist laws’ and ‘other systems’. See R David and JEC Brierley, Major Legal Systems in the World Today: an Introduction to the Comparative Study of Law (3rd edn, Stevens & Sons, London 1985) 22–31.

6 No-one has seriously suggested that either traditional or contemporary Chinese law falls into the common law family.

7 David and Brierley treat it as a traditional system of the ‘Far East’, See David and Brierley (n 5) 516–533. Similarly, Zweigert and Kötz, deal with Chinese law under the heading of ‘Law in the Far East’. See T Weir (trans), K Zweigert and H Kötz, An Introduction to Comparative Law (3rd edn, OUP, Oxford, 1998) 286–294. Both of these influential texts emphasise the traditional nature of Chinese law and treat Japan as the other main exemplar of a ‘Far East’ legal system.

8 See HP Glenn, Legal Traditions of the World: Sustainable Diversity in Law (3rd edn OUP, Oxford, 2007) 303.

9 Cui, Z and Jin, Z, ‘A Study of East Asian Common Law’ (2002) 6 Chinese Journal of Law 150158Google Scholar; See also Z Cui, ‘Jurisprudence of East Asia’ in H Liu and P Gong (eds), Asia and Its Legal Development in 21st Century (Nanjing Normal University Press, Nanjing 2001) 965.

10 S Ken, ‘Research on the Possibility of Existence of East-Asian Legal System’ in X Xu et al (eds), The Formation and Development of Rule-of-Law Society (Book One) (Shandong People's Publishing House, Jinan, 2003) 314–315.

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14 Zhang, X, ‘CPC Opened New Age for the Socialist Chinese Legal System’ (2001) 4 Jurists' Review 37Google Scholar.

15 It is noticeable that Chinese officials when proclaiming their main policies in almost all social fields, always refer to the maxim ‘socialism with Chinese characteristics’, which was initiated by Chinese reform leader Deng as fundamental guidance to the nation.

16 For instance, in the first English version of ‘An Introduction to Comparative Law I: The Framework’ (1st edn, North-Holland Publishing Company, Amsterdam, New York, Oxford, 1977), Zweigert and Kötz noted that Marxism had had some influence but concluded that Chinese law is part of a unified ‘Far Eastern Legal Family’ (352–328). Two decades later in their third edition (1998), they argued that socialist legal systems exist no more (Preface, p v).

17 Zweigert and Kötz, ibid; David and Brierley (n 5) 27; see also JH Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin American (2nd edn, Stanford University Press, Stanford, 1985) 1–4.

18 See David and Brierley (n 5) 20–21.

19 Zweigert and Kötz, 3rd edn (n 7) 67–68. They also admit that this is a somewhat rough and ready exercise but is useful for heuristic purposes, 72–73.

20 Glenn (n 8) chs 1 and 2, and ‘Comparative Legal Families and Comparative Legal Traditions’ in M Reimann and R Zimmerman (eds), The Oxford Handbook of Comparative Law (OUP, Oxford, 2008).

21 S Field, ‘Fair Trials and Procedural Tradition in Europe’ (2009) 29 OJLS 372.

22 See David and Brierley (n 5) 20.

23 Scrutinizing the history of comparative law with a modern eye, it is astonishing to find that factors such as race, geography, language and history have been used as the essential factors in classification. For a brief history of these attempts, see Zweigert and Kötz (n 7) 64.

24 David and Brierley (n 5) 26.

25 See Zweigert and Kötz, 3rd edn (n 7) 65–66.

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27 Zweigert and Kötz, 3rd edn (n 7) 65.

28 Apart from Marx-Engels and Lenin, there have been a number of scholars dedicated to developing socialist jurisprudence, such as Stuchka, Reisner, Pashukanis, Vyshinsky, Golunskii, Strogorich and later some Chinese scholars. Their explanations of socialist law are so varied that it is rare to find consensus on the definition of this term. See JN Hazard, ‘Introduction’ in HW Babb (trans), Soviet Legal Philosophy (20th Century Legal Philosophy Series, HUP, Cambridge, Massachusetts, 1951) for details of Soviet writers. For representative work on socialist law in China, see, eg, G Sun (ed), Marxist Jurisprudence Studies: On the Tenets of Concept and Essence of Law (2nd edn, Masses Press, Beijing, 2007) 117–181.

29 The early Bolshevik jurists admitted that the legal system of that time was ‘a somewhat hurried choice dictated by flair rather than by elaborate study’, because of the fact that that ‘Marxist literature on the general theory of law is very scant.’ See Hazard (n 28) xvii; see also Wan, B, ‘The Reform of Traditional Jurisprudence and the Development of Marxist Jurisprudence’ (1986) 4 Social Science 6Google Scholar.

30 Initially, Stuchka and some other socialist scholars denied the existence of socialist law, because they thought ‘law was a bourgeois category that regulated relationships between isolated individuals in the process of commodity exchange.’ Thus they concluded that Soviet law was the continuation of ‘bourgeois law’ and would disappear once a socialist State had been truly founded. See PI Stuchka, The Revolutionary Part Played by Law and the State—A General Doctrine of Law' in HW Babb (trans) (n 28).

31 Mitias, MH, ‘Marx and the Human Individual’ (1972) 12 Studies in East European Thoughts 249Google Scholar; RB Schlesinger, H Baade, M Damaška and P Herzog, Comparative Law: Cases, Text, Materials (5th edn, Foundation Press, New York, 1988) 80.

32 H Kelsen, the Communist Theory of Law (Frederick A Praeger Inc, New York, 1976) 1, citing F Engels, Der Ursprung der Familie, des Privateigentums und des Staates (Internationale Bibliothek, Stuttgart 1920) 177.

33 David and Brierley (n 5) 172.

34 See CWH Lo, ‘Socialist Legal Theory in Deng Xiaoping's China’ (1997) 11 Colum J Asian L 470.

35 JV Stalin, ‘Report to the XVIII Party Congress’ in HW Babb (trans), (n 28). See also Zweigert and Kötz, 1st edn (n 16) 297.

36 SA Golunsky and MS Strogovich, ‘The Theory of the State and Law’ in Babb (trans) (n 28).

37 JN Hazard, ‘Introduction’ in Babb (trans) (n 28).

38 Ajani, G, ‘By Chance and Prestige: Legal Transplants in Russia and Eastern Europe’ (1995) 43 Am J Com L 97Google Scholar.

39 Reynolds, TH, ‘Socialist Legal Systems: Reflections on Their Emergence and Demise’ (1992) 20 Int'l J Legal Info 215Google Scholar.

40 Merryman (n 17) 1–4.

41 It is fair to say that Merryman highlighted ‘legal tradition’ in lieu of ‘legal system’ because the latter, as he observed, is a set of existing and specific legal rules, institutions and procedures, whilst a ‘legal tradition’ is a more deeply rooted attitude towards the nature of law, its social-political function, its institutions, and how it should be implemented, applied, taught, researched and improved. It is clear, however, that his notion of ‘tradition’ is nevertheless intimately intertwined with positivist law and its legal practice. See ibid 1–2.

42 KW Makepeace, Marxist Ideology and Soviet Criminal Law (Croom Helm Ltd, London, 1980) 215–225.

43 Particularly in the initial stage of the Soviet Union, Stucka and Pashukanis saw the law of the Soviet state only as ‘a doomed relic of the bourgeois period’. See Zweigert and Kötz, 1st edn (n 16) 297.

44 Quigley, J, ‘Socialist Law and the Civil Law Tradition37 (1989) Am J Com L 784Google Scholar, citing GM Reznik, ‘The Advocate: Prestige of the Profession’ in VM Savitskii (ed), The Bar and the Present Day 1987.

45 In Mattei's analysis, the current legal system in China is the outcome of a dynamic competitive process bounded by bipartite social constraints: the rule of political law; and the rule of traditional law. Of both influential forces, he argues that Chinese socialist law is constituted largely by the rule of political law, i.e. the subordination of law to politics. See Mattei (n 1) 5. See also Lubman, S, ‘Studying Contemporary Chinese Law: Limits, Possibilities and Strategy’ (1991) 39 Am J Com L 294Google Scholar.

46 David and Brierley (n 5) 25–27, 273–280.

47 Bogdan, M, ‘Different Economic Systems and Comparative Law’ (1978) 2 Comp Law YBk 107Google Scholar.

48 Y Chu, The Foundation of Comparative Law (Shanghai Social Science Academy Publishing, Shanghai 1988) 96.

49 The authors gratefully acknowledge the assistance of Dr Mátyás Bódig, Aberdeen University, in confirming the distinguishing features of socialist law identified below which are shared both by current Chinese law and by the former Hungarian socialist law upon which he is an expert.

50 R Vogler, A World View of Criminal Justice (Ashgate, Aldershot and Burlington 2005) 88.

51 David and Brierley (n 5) 229.

52 JN Hazard, Communists and Their Law: A Search for the Common Core of the Legal Systems of the Marxian Socialist States (University of Chicago Press, Chicago 1969) 145. See also David and Brierley (n 5) 290–295.

53 Zweigert and Kötz, 1st edn (n 16) 328–329.

54 Land Administrative Law of the People's Republic of China 2004 s 47 <http://www.sh360.net/law/law12/2950.html> accessed 16 September 2010.

55 Easterly, ES III, ‘Global Patterns of Legal Systems: Notes toward a New Geojurisprudence’ (1977) 67 Geographical Review 209CrossRefGoogle Scholar.

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57 David and Brierley (n 5) 273–283.

58 Reynolds (n 39) 231.

59 Zweigert and Kötz, 1st edn (n 16) 339.

60 The contour of social areas covered by the state redistributive economy includes not only fertility, but also production, wages, prices, labour assignments, housing allocation, employment, marriage, medicine, education, the media and arts. See Yang, MMH, ‘The Modernity of Power in the Chinese Socialist Order’ (1988) 3 Cultural Anthropology 412CrossRefGoogle Scholar.

61 In fact, apart from one-party leadership, the frequent use of administrative orders is the very reason for the politicization of law.

62 Zweigert and Kötz, 1st edn (n 16) 324–325.

63 Shi, S and Guo, L, ‘Lenin's Thinking on Legal Supervision and China's Prosecution System’ (2003) 54 Law and Social Development 311Google Scholar.

64 V Langer (n 56) 288–289; Zweigert and Kötz, 1st edn (n 16) 324–325.

65 David and Brierley (n 5) 248.

66 ibid 209–213.

67 Glos, G, ‘The Czechoslovak Civil Code of 1964 and its 1982 Amendment within the Framework of Czechoslovak Civil Law’ (1985) 6 NYL Sch J Int'l & Comp L 236238Google Scholar.

68 For details of this movement, see Eastman, LE, ‘Fascism in Kuomintang China: the Blue Shirts’ [1972] The China Quarterly 1119Google Scholar; Dirlik, A, ‘The Ideological Foundations of the New Life Movement: A Study in Counter-revolution’ (1975) 34 Journal of Asian Studies 945958CrossRefGoogle Scholar.

69 JP Brady, Justice and Politics in People's China: Legal Order or Continuing Revolution? (Academic Press, London, 1982) 66.

70 The CCP Government won the Civil War against the Nationalist Government.

71 See M Oksenberg, ‘Politics Takes Command: An Essay on the Study of Post-1949 China’ in R MacFarquhar and JK Fairbank (eds), The Cambridge History of China (CUP, Cambridge, 1987); see also Lubman (n 45) 300.

72 Z Mao, On People's Democratic Dictatorship, in Selected Works of Mao Tse-tung (People Press, Beijing, 1977) 418.

73 SC Leng, Justice in Communist China: A Survey of the Judicial System of the Chinese People's Republic (Oceana Publications, Dobbs Ferry, New York 1967) 57–63; SC Leng and H Chiu, Criminal Jusitce in Post-Mao China: Analysis and Documents (SUNY Press, New York, 1985) 16–17.

74 Cai, D, ‘Development of the Chinese Legal System Since 1979 and its Current Crisis and Transformation’ (1999) 11 Cultural Dynamics 137Google Scholar.

75 By 1997, 328 laws, amendments and decisions had been approved by the NPC and its Praesidium. Further, 770 administrative regulations and about 5200 provincial regulations had been enacted by the State Council and Local Authorities. 3100 courts had been re-established or created. There were 290,000 and 200,000 personnel working in the courts and procuratorates respectively. See ibid 136–137.

76 Z Jiang, ‘Hold High the Great Banner of Deng Xiaoping Theory for an All-round Advancement of the Cause of Building Socialism with Chinese Characteristics into the 21st Century: Report Delivered at the 15th National Congress of the Communist Party of China’ (1997) <http://xibu.tjfsu.edu.cn/elearning/lk/15en.htm> accessed 16 September 2010.

77 Lo (n 34) 470.

78 Quoted in Zweigert and Kötz, 1st edn (n 16) 300.

79 It is obvious that global patterns of legal systems, together with the ‘legal map of the world’, were dictated mainly by political geography because colonisation, political domination and alignment, and other political elements are the most determinative factors for emerging legal families. See Easterly, III (n 55) 209.

80 The People's Republic of China, Cuba, North Korea, Laos and Vietnam are claimed to be the remaining socialist states.

81 As Rojek believes, ‘China appears more determined than ever to continue to modernize and assume a role of world leadership through the strength and resiliency of the Chinese people’. See Rojek, DG, ‘The Criminal Process in the People's Republic of China’ (1985) 2 JQ 126Google Scholar.

82 Zweigert and Kötz, 3rd edn ( n 7) v.

83 See T Weigend, ‘Criminal law and criminal procedure’ in JM Smits (ed), Elgar Encyclopedia of Comparative Law (Edward Elgar Publishing, Cheltenham and Northampton 2006) 219. Some theorists seem to recognise the continued existence of socialist countries in Asia, principally China and Vietnam, but somewhat paradoxically still think that ‘socialist family’ has suddenly disappeared. See van Hoecke, M and Warrington, M, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ (1998) 47 ICLQ 499CrossRefGoogle Scholar.

84 G Liao, ‘The Study of Marxist Criminal Procedure’ (Encyclopaedia, Website of Marxism Research 2006) <http://myy.cass.cn/file/2006012424180.html> accessed 16 September 2010.

85 Hazard (n 52) 523–528.

86 YH Lin, Criminal Procedural Law (Renmin University Press, Beijing, 2005) 18.

87 As noted in the introduction, there are various possible criteria which can be used in differentiating legal families. The particular format used here has been adopted for ease of presentation and it is not claimed that it is ideal.

88 <http://www.china-lawyer.org/view.asp?id=503> accessed 16 September 2010.

89 Mattei (n 1) 6.

90 See Q Xiong, ‘Criminal Procedure Law in Mainland China: Past, Present and Future’ in D Tang and P Wang (eds), The Legal Development of the Mainland, Taiwan, Hong Kong, and Macau (New Xuelin Publishing Ltd., Taibei 2006) 240–242, 253.

91 See Berman, HJ, Cohen, S and Russell, M, ‘A Comparison of the Chinese and Soviet Codes of Criminal Law and Procedure’ (1982) 73 J Crim L & Criminology 239CrossRefGoogle Scholar.

92 See EJ McCabe, ‘Structural Elements of Contemporary Criminal Justice in the People's Republic of China’ in RJ Troyer, JP Clark and DG Rojek (eds), Social Control in the People's Republic of China (Praeger Publishers, New York, 1989).

93 See Berman, Cohen and Russell (n 91) 238.

94 ibid 256.

95 See R Sharlet and P Beirne, ‘In Search of Vyshinsky: The Paradox of Law and Terror’ in P Beirne, Revolution in Law: Contributions to the Development of Soviet Legal Theory, 19171938 (ME Sharpe, Inc, London, 1990) 136–156.

96 See Kline, GL, ‘‘Socialist Legality’ and Communist Ethics' (1963) 8 Natural Law Forum 2134Google Scholar.

97 See Cui, M, ‘Comments on Vyshinsky's Theory of Evidence in Procedure’ (1989) 27 China Legal Science 95102Google Scholar.

98 G Chen, ‘The Features of Judicial System in Ancient China’ in Chen's Legal Corpus (China Legal Publishing House, Beijing, 2000) 3; Chen, R, ‘Criminal Procedure Law in China in the 20th Century’ (1997) 54 Peking University Law Journal 123Google Scholar. See also C Fan, Research Summary and Assessment of Audio-Visual Information (China People's Security University Press, Beijing, 2002) 338–344.

99 For instance, references to the ‘guiding ideology’ of the CPL in 1979, namely ‘Marxism-Leninism-Mao-Zedong thought’ and ‘people's democratic dictatorship’, were deleted.

100 (n 88) s1.

101 ibid s 2.

102 Wei, X, ‘Revision and Location on the New Criminal Procedure Law’ (2000) 15 Legal Forum 8794Google Scholar.

103 See (n 101).

104 The CPLA is a branch of the China Law Society, which is a civil organisation led by the CCP and is the bridge that the Party and Government use to associate with legal scholars and practitioners. For a brief introduction to the China Law Society, see <http://www.chinalaw.org.cn/Column/Column_Template4.aspx?ColumnID=106> accessed 16 September 2010.

105 Secretariat of the CPLA, ‘On 23rd February, 2008, the CPLA Held a Meeting for Its Committees in Beijing, Conveyed the Spirit of the Relevant Documents of the China Law Society, and Deployed the Work for this Year’ (News of China Procedural Law website 2008) <http://www.procedurallaw.cn/yjhzl/zxxx/200807/t20080723_40352.html> accessed 16 September 2010.

106 Potter, PB, ‘Riding the Tiger: Legitimacy and Legal Culture in Post-Mao China’ (1994) 138 The China Quarterly 326CrossRefGoogle Scholar.

107 Liao (n 84).

108 Organic Law of the People's Procuratorates of the People's Republic of China 1983 s 5. <http://www.eduzhai.net/yingyu/615/763/yingyu_245963.html> accessed 16 September 2010.

109 V Langer (n 56) 290.

110 Rojek (n 81) 117–126.

111 Constitutional Law of the People's Republic of China (2004) s3, 104 <http://english.people.com.cn/constitution/constitution.html> accessed 16 October 2009.

112 Organic Law of the Local People's Congress and Local People's Governments of the People's Republic of China (2004) s44 (6) <http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN003082.pdf> accessed 16 September 2010; the authority of the congresses purports to be substantiated but exists only in some exceptional situations. For example, if the chief procurator disagrees with the majority of the procuratorial committee's opinion over a decision on an important issue, the matter may be reported to the praesidium of the people's congress at the corresponding level for final decision. See (n 108) s 3.

113 When the Local People's Congresses were instituted in 1979, they were regarded almost as useless ‘rubber stamps’ due to their lack of substantive power. See X Yang, ‘Institutional Performance: Participation, Technique and Capability’ in X Yang and J Chen (eds), Legislative Hearings & Local Governance Reform (Central Compilation & Translation Press, Beijing, 2004).

114 For how the local people's congresses developed the new systems, see Xie, P, ‘The System Construction of People's Congress is a Continuous Course of Exploration: The Process and Illumination of Legal Construction and System Innovations of Local People's Congresses during the 30 Years’ (2009) 209 People's Congress Studying 47Google Scholar; also Cho, YN, ‘Symbiotic Neighbour or Extra-Court Judge? The Supervision over Courts by Chinese Local People's Congresses’ (2004) 176 The China Quarterly 10681083Google Scholar.

115 In 1982, the ping-yi was firstly employed in Zhaoyuan County, Heilongjiang Province; in 1983, the zhi-fa jian-cha was initiated and performed by the People's Congress of Shenyang City; in the middle 1980s, the ge-an jian-du was created and then operated in each local people's congress; and in 1988, the cuo-an ze-ren zhui-jiu-zhi was carried out in some congresses in Hebei Province. See Z Dong, ‘The Review of and Reflection on the Creations by the Supervisory Authority of the People's Congress’ in D Cai and C Wang (eds), 20 Years’ Development and Reform of People's Congress (China Procuratorial Press, Beijing, 2001).

116 Cho (n 114) 1074.

117 The Supervision Law of the People's Congress Praesidium of Each Level in the People's Republic of China 2006 s 3 (3), 5. <http://www.chinacourt.org/flwk/show.php?file_id=112669> accessed 16 September 2010.

118 See Lubman (n 45) 317.

119 See Ye, J, ‘Can the Criminal Suspect in the Case Committed by the Discipline Inspection Commission Be Regarded as the Surrender?’ (2003) 4 People's Procuratorial Semimonthly 5152Google Scholar.

120 See Lou, Z, ‘A Study of the Functions of the Party Committee and the Political and Legislative Affairs Committee of the Party’ (1997) 100 Law Science Magazine 28Google Scholar.

121 The nearest translation is ‘judicial explanation’.

122 See, eg, The Law on Court Organization of the RSFSR 1972 s 50. For the specific stipulations of this code, see HJ Berman and JW Spindler (trans), Soviet Criminal Law and Procedure: The RSFSR Codes (2nd edn HUP, Cambridge, Massachusetts, 1972); Quigley (n 44) 792, citing Law on the Supreme Court of the USSR 1979 s 3, 30; See also Z Ni, Exploration and Analysis of Comparative Law (China Legal System Publishing, Beijing, 2006) 165. For the evolution of the directives issued by the Soviet Supreme Court, see Solomon, PH, ‘The USSR Supreme Court: History, Role, and Future Prospects’ (1990) 38 Am J Com L 131136Google Scholar.

123 MR Damaška, the Faces of Justice and State Authority: A Comparative Approach to Legal Process (Yale University Press, New Haven 1986) 196.

124 For the contents of these provisions, see J Liu (ed), The New Explanations of Criminal Procedure Law and the Related Regulations (Court Press, Beijing, 2005).

125 In the ‘Incidental Provisions of Criminal Procedure Norms of People's Procuratorate’, it is stipulated that ‘This Norm shall be interpreted by the Supreme People's Procuratorate’. There is criticism that this process is potentially endless if an explanation itself needs to be further explained. See Xie, Y and Wan, Y, ‘Meditation and Elimination of Tradition: Reconstruction of Legal Interpretation System in Criminal Procedure of China’ (2002) 62 Journal of Gansu Political Science and Law Institute 16Google Scholar; See also G Chen, Research on the Issues in Implementation of the Criminal Procedure Law (China Legal Publishing House, Beijing, 2000) 4.

126 Z Zhang, The Operational Analysis of Legal Interpretation (China University of Political Science and Law Press, Beijing, 1998) 22.

127 For the contents of this and other such provisions, see Liu (n 124).

128 Unfortunately, in a jurisdiction as large as China, it is difficult to put the law into practice consistently. There are some regional, rather than national, explanations to the CPL, such as ‘The Decision of Implementing Criminal Procedure Law after the Amendment’, the latter being made by the Praesidium of Anhui Province People's Congress in 1996. This represents the localization of judicial power in China.

129 See CPL (n 100) s 203–207.

130 The view that Confucian morality was much more effective in Imperial China than positivist law was perhaps originally addressed by Max Weber. See Marsh, RM, ‘Weber's Misunderstanding of Traditional Chinese Law’ (2000) 106 The American Journal of Sociology 281302CrossRefGoogle Scholar.

131 Zweigert and Kötz, 3rd edn (n 7) 287.

132 David and Brierley (n 5) 518–521; See also Glenn (n 8) 311–314.

133 A useful explanation of li and overview of attempts at definition can be found in Glenn's chapter ‘An Asian Legal Tradition: Make it New (With Marx?)’, especially at ibid 311–3, 320–3. As a resource of applied jurisprudence, Confucian ideas are also mixed with doctrines from Buddhism and Taoism. See Zhang, J, ‘On Some Problems of the Law Family of China a Second Time’ (1984) 2 Tribune of Political Science and Law 5Google Scholar.

134 For instance, Chü stated that the Confucianisation of law was the fundamental mark of the establishment of a feudal Chinese legal system. See TT Chü, Law and Society in Traditional China (Mouton & Co, Paris 1965) 280. Similarly, Rojek overemphasized Confucian ideology in his treatise and thought that to an extent ‘Chinese society was to be ruled by moral persuasion rather than law and punishment’. Rojek, DG, ‘Social Control in the People's Republic of China’ (1989) 14 Criminal Justice Review 142144CrossRefGoogle Scholar; See also Hoecke and Warrington (n 83) 506; Glenn (n 8) 312.

135 See Z Zhang, Comparative Studies of Chinese and Western Legal Culture (China University of Political Science and Law, Beijing 1991) 323.

136 Z Liang, ‘Explicating ‘Law’: A Comparative Perspective of Chinese and Western Legal Culture' (1989)3 J Chinese L 69, citing W Hou, A General History of Chinese Thought (People's Press, Beijing 1962) 74.

137 J Li, The History of Chinese Procedural Law (China Procuratorial Press, Beijing, 2002) 243.

138 Liang (n 136) 73–74; Li (n 137) 244.

139 Although fa and law share the same Chinese character, fa cannot simply be equated to law, because fa comprises almost solely criminal law and other rules with severe criminal sanctions. According to Confucian doctrine, the function of fa should be subordinate to li.

140 Liang (n 136) 78–79.

141 For a brief discussion of the relationship between li and fa, see Glenn (n 8) 306–309, 313–315.

142 It can be exemplified by the fact that in adjudication judges were supposed to take account of the human feelings and reason embedded in Chinese culture as well as statutes and judicial examples.

143 Cruz (n 4) 201.

144 Zweigert and Kötz, 1st edn (n 16) 357.

145 Liang (n 136) 86.

146 Ye, L, ‘The Tort System in China’ (1989) 52 LCP 145146Google Scholar.

147 S van der Sprenkel, Legal Institutions in Manchu China: A Sociological Analysis (Athlone Press, London, 1962) 69.

148 Liang (n 136) 87–88.

149 From the Meiji Restoration in 1868, Japan had begun a large scale transplantation of western law to bring about legal reform. This might be argued to mark the beginning of the destruction of the Far Eastern Confucian legal system in Japan and the westernization of Japanese law along civilian lines.

150 See Zhang (n 11) 120–126.

151 Further references can be found in Fan, Z and Ye, F, ‘Modernization of Chinese Law and the Influence from Continental Legal System’ (2003) 18 Journal of Henan Administrative Institute of Politics and Law 3947Google Scholar.

152 Liang, H, ‘Chinese Civil Law: Where is it from? Where is it to?’ (2006) 7 China Reform 6467Google Scholar.

153 Liang, H, ‘Incompact and Assembled Civil Code is Improper to the Situation of China’ (2003) 109 Tribune of Political Science and Law 914Google Scholar.

154 As noted in our Introduction, it is generally agreed that there is little sense in comparatavists defining legal families according to one standard, ie the structure of rules.

155 Rojek (n 81) 118.

156 Foucault, M, ‘The Archaeology of Knowledge’ (1970) 9 Social Science Information 175185CrossRefGoogle Scholar.

157 David and Brierley (n 5) 516–533.

158 ibid 523–524.

159 ibid 529–531.

160 Zweigert and Kötz, 1st edn (n 16) 354–358; 3rd edn (n 7) 286–294.

161 For example, Mattei assumes that ‘the social structures of China exhibit closer ties to the Oriental world’ governed by traditional law than they now do, therefore he thinks ‘legal sinology had long achieved a position of independence within the field of sovietology’. Mattei (n 1) 32.

162 Lubman (n 45) 299–300.

163 Li, X, ‘The Closure of Chinese Legal System and the Reason’ (1994) 6 Science of Law 2833Google Scholar.

164 Thus Zhang argues that the traditional Chinese system ended in the late Qing Dynasty (1908–1912 AD): see J Zhang, Overview of Legal History: Review of Some Issues in Chinese Legal System (Public Publishing House, Beijing 1988). This revolution is claimed to have overthrown fundamental political doctrines, laws, customs and morality. See also JR Levenson, Confucian China and Its Modern Fate (University of California Press, Berkeley, 1968) 119–22.

165 Yang (n 60) 408.

166 X Ren, Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China (Greenwood Press, Westport, CT and London 1997) 11.

167 Nowadays it is clear that li are never mentioned in the decisions and judgements of justice agencies. Even if they had any residual force, li might only be vaguely discerned in the form of ‘situation ethics’ (qing-jing lun-li) within the principled discretion of such agencies. However, decisions in all current legal families may draw upon the particularized ethics of their own culture.

168 Ironically, given the emphasis David and Brierley place on Confucianism, they also argue that attention should be focussed on positivist law in lieu of local custom, because this is the real subject matter of legal science. See David and Brierley (n 5) 2, 13.

169 Huang, W, ‘An Examination of Regional Legal Discourse in East Asia’ (2005) 1 Legal Science Monthly 2126Google Scholar.

170 For example, much literature suggests that in the US legal sanctions are seldom used as the principal method of settlement for minor civil disputes. See, eg, Macaulay, S, ‘Non-contractual Relations in Business: A Preliminary Study’ (1963) 28 American Sociological Review 5567CrossRefGoogle Scholar; see also RC Ellickson, Order without Law: How Neighbours Settle Disputes (HUP, Cambridge Massachusetts 1994). It may further be observed that mediation performs recognizable functions derived from both traditional ideas and Communism: see Lubman (n 45) 300.

171 See Potter (n 106) 351.

172 For example, the total number of cases coming before all courts was 19.87 times greater in 2009 than in 1978. Further, cases accepted by courts at all levels increased by 26.20% and those concluded increased by 52.09% from 2008 to 2009. Since 2005 the number of cases has been increasing on average by 5.95% per year. See The Annual Work Report of People's Court in 2009 <http://www.court.gov.cn/qwfb/sfsj/201007/P020100716295433349727.doc> accessed at 17 September 2010.

173 Both were concerned with the protection of social and political order rather than individual interests: see Rojek (n 81) 142. Mattei also makes the point that informal institutions in traditional law ‘share some common characteristics hegemonic on those determined by politics’. See Mattei (n 1) 33.

174 For example, during the Qing dynasty, criminal justice was based on the extremely detailed Great Qing Legal Code. Albeit the present criminal procedure code is short and simple, most of the relevant agencies have enacted numerous delegated rules and explanations of the code.

175 Z Liang, Seeking for the Harmony in the Natural Order (China University of Political Science and Law Press, Beijing, 1997) 342.

176 Although ES Easterly mistakenly illustrates ‘cultural preadaptation’ in a legal context as exemplifying political alignment, this usage is illuminating for this article. He argues: ‘The legal system's (or law's) faculty, with minimal change, serves new functions, or the faculty arises in one context but functions in another.’ See Easterly, ES III, ‘Global Patterns of Legal Systems: Notes toward a New Geojurisprudence’ (1977) 67 Geographical Review 218CrossRefGoogle Scholar.

177 W Ji, ‘Space of Choice and Judicial Discretion in China: A Perspective of Comparative Legal Culture’ (Center for Legal Synamics of Advanced Market Societies, Kobe University Discussion Paper 04/7E, 2004) 5–7. Fa-lü da-wen is the explanation of the spirit and terminology of law during the Qin Dynasty by means of questions and corresponding answers.

178 See (n 122).

179 Lubman (n 45) 299.

180 Rojek (n 81) 125.

181 Liang (n 175) 326–328.

182 Xiong (n 90) 271.

183 Li (n 137) 298–329.

184 Leng, SC, ‘Criminal Justice in Post-Mao China: Some Preliminary Observations’ (1982) 73 J Crim L & Criminology 205CrossRefGoogle Scholar.

185 Reynolds (n 39) 215. This view is shared by many western scholars: see Lee, CK, ‘Maritime Security in Northeast Asia in the Post Cold War International System’ (1999) 14 Pacific Focus 101CrossRefGoogle Scholar; Gunn, J, ‘Abuse of Psychiatry, Criminal Behaviour and Mental Health’ (2006) 16 Colum J Asian L 82Google Scholar; CA McNally, ‘China's Capitalist Transition: the Making of a New Variety of Capitalism’ in L Mjoset and TH Clausen (eds.), Capitalisms Compared (1st edition, JAI Press, Oxford, 2007) 179.

186 See, eg, X Deng, Opening Speech, in the Twelfth National Congress of the CCP (Foreign Languages Press, Beijing, 1982) 3.

187 Z Jiang, ‘Build a Well-off Society in an All–Round Way and Create a New Situation in Building Socialism with Chinese Characteristics: The Report to the 16th Party's National Congress’ People's Daily (Beijing 8 November 2002) <http://english.people.com.cn/features/16thpartyreport/home.html > accessed 16 September 2010.

188 McNally (n 185).

189 See Lo (n 34) 472.

190 X Deng, ‘Uphold the Four Basic Principles’ in Collected Writings of Deng Xiaoping (People's Press, Beijing 1983) 150–151.

191 In particular, these principles were clearly written in the Preamble of the 1982 Chinese Constitutional Code.

192 Yu, H, ‘What are the Practical Implications of the Discussion on the Question of ‘Rule of Persons’ and ‘Rule of Law’' (1980) 7 Democracy and Legal System 8Google Scholar.

193 Lo (n 34) 476.

194 CWH Lo, Deng Xiaoping's Ideas on Law: China on the Threshold of a Legal Order’ (1992) 32 Asian Survey 649665CrossRefGoogle Scholar.

195 It is customary to define vividly two stages of the legal system after 1949. At the ‘knife handle’ (dao-ba-zi) stage, law was mainly envisaged as criminal law whereby the courts were regarded as a dictatorial agency responsible for administration of the death penalty. At the ‘conductor's baton’ (zhi-hui-bang) stage, the law is seen as an operative tool for the control of society. See Cai (n 74) 138.

196 Wen-ding ya-dao yi-qie (stability is more important than anything else) and he-xie she-hui (harmonious society) are familiar political jargon in the administration of law. See Shen, Z, ‘New Achievements of Marxist Legal Thoughts in China (Part I)’ (2008) 152 Political Science and Law 4149Google Scholar; Zhang, W, ‘The Legal Mechanism of the Constructing of Socialist Harmonious Society’ (2006) 129 China Legal Science 720Google Scholar.

197 For similar views, see Lo (n 34) 484–485.

198 Legislators have transplanted many Anglo-American adversarial elements to the court room but, of course, this does not mean that Chinese criminal procedure now belongs to the Anglo-American model. For a discussion of how plea bargaining has been ‘translated’ into some inquisitorial systems of the civilian family without fundamentally changing their nature, see Langer, M, ‘From Legal Transplants to Legal Translations: the Globalisation of Plea Bargaining and the Americanisation Thesis in Criminal Procedure’ (2004) 45 Harv Int'l L J 164Google Scholar.

199 See R Chen (n 98) 1–23.

200 Potter (n 106) 326.

201 See Trevaskes, S, ‘Severe and Swift Justice in China’ (2007) 47 BJC 2341Google Scholar.