China

Confucianism and Social Order

Confucianism has been the longest lasting influence and among the most important influences on Chinese values and social order. In Confucius's view, society is hierarchical, with the concept of li being the behavioral norm for people of superior status and inferior status. According to li, it is virtuous for the inferior to respect [Page 211]and obey the superior. In an extreme interpretation of li by some later Confucians, “A minister will oblige should the emperor order him to die; a son will oblige should his father ask him to die.” (Xia 1995: 16). Confucius (551–479 BCE) maintained that if all individuals act according to li, order will prevail without conflict. Confucianism fostered an orderly society based on suppression of self-interest and acceptance of authority. Lawsuits, for example, were deemed confrontational and disruptive, and the Chinese continue to prefer to avoid resolving disputes in the courts.

Traditional law in ancient China was largely set forth in the criminal code and targeted behaviors that were seen as threatening to the status quo. During the Tang dynasty (618–907) the first comprehensive legal code was set forth, and subsequent dynasties adopted the code without changing its fundamental elements. The use of informal methods of social control was emphasized and remains important today.

After China was politically unified in 221, centralized government control became the dominant political structure, and all aspects of the judicial system were under government control. The criminal justice system was managed by government officials, and judicial authority was one of the powers delegated to local officials by the central government. This inseparable relation between judicial function and other authority made it impossible for courts to appreciate equity in justice.

The Legal System of the PRC

China's modern history began with the fall of the Qing dynasty in the revolution of 1911. During the next thirty-eight years civil war and foreign aggression fragmented the new Chinese Republic. In 1949, the country was unified under the Communist government of the PRC. The new regime took the Soviet Union's legal system as its model and consisted of four agencies:

• 1.
  The police were responsible for investigation, detention, and preparatory examination of criminal cases. Police are under the command of the Ministry of Public Security.
• 2.
  Procurates were responsible for approving arrests and initiating public prosecution. Procurates are under the Ministry of the Supreme People's Procurate.
• 3.
  Courts were responsible for adjudication. Courts are subject to the administration of the Supreme People's Court.
• 4.
  Corrections were under the Ministry of Justice.

Because the Communist Party Central Committee (CPCC) is the true locus of power in China, party ideology and politics determine the nature of the criminal justice and judicial systems.

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