中國法律體系發(fā)展(英文版)課件

1、CHINESE LEGAL TraditionConfucianism and Legalism in Ancient ChinaOriginated in “Spring and Autumn Period” and “Warring States Periods”, Confucianism and Legalism became the two main beliefs in China, which heavily influenced the traditional Chinese society and the legal system. ConfucianismConfucian

2、ism is “a social doctrine that describes appropriate personal behavior necessary for maintaining justice, fairness and harmony in society.”The main theme of Confucianism was the superior man and a well-ordered society. Li （Rite）“Li” governed social relationships, including those between ruling and r

3、uled, the senior and the junior, man and woman, and the blood-related and the acquainted. Li Zhi (Rule by Li, 禮治)The goal of “Li Zhi” is to achieve a harmonious social order in which “each person is able to realize his or her full potential as a human being through mutually beneficial relations with

4、 others.” Legalism It focused on the way that ruler govern the states. Legalists aimed at designing a system that could work independently from rulers own characteristics.Three tools: law(法) tactic(術(shù)) Power(勢) LawLegalists emphasized the principle of “rule by law”, claiming that codified, publicly p

5、romulgated laws should be impartially applied except against the highest ruler. “灋”They disagreed with Confucianisms opinion that “the Li does not reach down to the common people; penal law does not reach up to the great official.” A state needed strict laws and harsh punishments to maintain order.

6、“灋”LawA set of administrative techniques and method which influences all aspects of rulers control.Key: make the ruler mysterious so that no one can predict rulers motivationTacticRuler should hold the absolute power and have privilege over all subjects.PowerThe relationship between social order and

7、 law Li vs. lawHow Chinese society should be ruled by ethics vs. by lawDifferences Between Confusianism and LegalismThe Linkage of Confucianism and Legalism After the “Spring and Autumn Period” and “Warring States Periods”, Dong Zhongshu revised Confucius classics by combing the function of Li and L

8、aw in Han Dynasty.Dongs theory emphasized the supremacy of Li and the subservience of law. It established the three authorities: the emperors authority over his ministers, a fathers authority over his children, and a husbands authority over his wife. The Linkage of Confucianism and Legalism Family r

9、ulesChinese family system emphasizes the supremacy of seniority and patriarchy. The intense family solidarity that gives individuals psychological and economic security through membership in a tightly knit group.The family concept extended to the state level. The emperor was considered as the father

10、 of the state. The emperors authority and relationship with his people were the same as those in the family system. Family rulesModernization of Chinese LawIn the early 20th century, Chinese government began to revise and to modernize its law.Legal transplantAs a result of new influence from outside

11、 world, codes similar to western law were formulated.Drafts of criminal and civil law compiled by Japanese legal advisors; copied mainly from European and Japanese law (Civil law system).Modernization of Chinese LawModernization of Chinese lawLaw in theRepublic of Chinais mainly a civil law system.

12、Six Codes: the Constitution, the Civil Code, the Code of Civil Procedures, the Criminal Code, the Code of Criminal Procedures and in Administrative Laws. The adoption of the “Six Codes” altered the Chinese legal system from a single, unified code focused on criminal law to a system of separate codes

13、 for separate areas of law.Modernization of Chinese lawContemporary Chinese legal systemFormal Sources of Chinese Laws：TheConstitution of the Peoples Republic of ChinaNational laws (Written laws)Administrative regulations（行政法規(guī)） and ministerial rules (部門規(guī)章)Local decrees/regulations（地方性法規(guī)）Autonomy reg

14、ulations（自治條例） and separate rules（單行條例）The laws of Special Administrative Region（特別行政區(qū)法）International treaties （國際條約）Contemporary Chinese legal systemFormal Sources of Chinese Laws：The highest and ultimate source of legal norms in China. Issued by National Peoples Congress. It establishes the framew

15、ork and principles of the government, and lists the fundamental rights and duties of Chinese citizens.ConstitutionFormal Sources of Chinese LawsIssued by theNational Peoples Congress and the Standing Committee of the NPC（人大常委會）.Administrative regulations are issued by theState Council.Ministerial ru

16、les can be issued by different state organs. National LawsAdministrative regulations and ministerial rules Formal Sources of Chinese LawsIssued by local Peoples CongressesLocal decrees/regulationsAutonomy regulations and separate rulesIssued by Peoples Congresses of the National Autonomous Regions F

17、ormal Sources of Chinese LawsSigned international treaties are in practice automatically incorporated into PRC lawThe laws of Special Administrative RegionIssued by the Standing Committee of the National Peoples Congressand the government of Special Administrative RegionInternational treatiesFormal

18、Sources of Chinese LawsThe Procuratorate SystemThe Court systemThe Public Security Judicial System in ChinaThe Procuratorate SystemLocal Peoples Procuratorates；Intermediate Peoples Procuratorates；High Peoples Procuratorates；The Supreme Peoples Procuratorate.(1) Investigation of certain types of Crim

19、inal Cases and prosecute to the Court；(2) Approval of arrest and prosecute the criminal cases investigated by the Public Security Organ；(3) Supervise the trial.Functions of the Peoples ProcuratoratesThe judicial authority of the PRC is exercised by the following peoples courts: local peoples courts

20、at various levels; military courts and other special peoples courts and the Supreme Peoples Courts. The local peoples courts are divided into basic peoples courts, intermediate peoples courts and higher peoples courts.The Court systemThe highest judicial organ of the StateThe Supreme Peoples Court s

21、upervises the work of the local peoples courts at various levels as well as the special courts. The Supreme Peoples CourtLocal Peoples Courts The Higher Peoples CourtsThe Intermediate Peoples CourtsThe Basic Peoples CourtsJudicial System in ChinaThe special courts include military courts, railway co

22、urts and maritime courts. The Special CourtsMilitary courts:A court ofspecial jurisdictionin Chinathat deals with matters in theChinese military. Most of the cases they dealt with are criminal cases involving soldiers. This is a relatively closed system. The railway and transport courts:They deals with criminal cases and econ