Great Qing Legal Code

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The Great Qing Legal Code or Qing Code (Chinese: 大清律例; Manchu: Daicing gurun-i fafun-i bithe kooli) was the legal code of Qing dynasty (1644-1912). The code was based on the Ming legal system, which was kept largely intact. Compare to the Ming code which had no more than several hundred statutes and sub-statutes, the Qing code contained 1,907 statutes from over 30 times of revisions between 1644 and 1912.

The Qing code was the last legal code of imperial China. By the end of Qing dynasty, it was the only legal code enforced in China for nearly 270 years. Even with the fall of imperial Qing in 1912, the Confucian philosophy of social control enshrined in the Qing code remain influential in the German-based system of the Republic of China, and later, the Soviet-based system of the People's Republic of China.

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[edit] Nature of the Code

The traditional Chinese law was largely in place by Qing dynasty. The process of amalgamation of Confucian views and law codes was considered complete by the Tang Code of CE 624. The code was regarded as a model of precision and clarity in terms of drafting and structure. Confucianism in revised form (Neo-Confucianism) continued to be the state orthodoxy under Song, Ming and Qing. Throughout the centuries the Confucian foundations of the Tang Code were retained with even some aspects strengthened.

During the Qing dynasty, criminal justice was based on an extremely detailed criminal code. One element of the traditional Chinese criminal justice system is the notion that criminal law has a moral purpose, one of which is to get the convicted to repent and see the error of his ways. In the traditional Chinese legal system, a person could not be convicted of a crime unless he has confessed. This often led to the use of torture, in order to extract the necessary confession. These elements still influence modern Chinese views toward law. All capital offenses were reported to the capital and required the personal approval of the emperor.

There was no civil code separate from the criminal code, which led to the now discredited belief that traditional Chinese law had no civil law. More recent studies have demonstrated that most of the magistrates' legal work was in civil disputes, and that there was an elaborate system of civil law which used the criminal code to establish torts.

The Qing Code was in form exclusively a criminal code. Its statutes throughout stated as prohibitions and restrictions, and the violation of which was subjected to a range of punishments by a legalist state. In practice, however, large sections of the code and its sub-statutes dealt with matters that would properly be characterised as civil law. The populace made extensive use (perhaps a third of all cases) of the local magistrate courts to bring suits or threaten to sue on a whole range of civil disputes, characterized as "minor matters" in the Qing Code. Moreover, in practice, magistrates frequently tempered the application of the code by taking prevalent local custom into account in their decisions. Filed complaints were often settled among the parties before they received a formal court hearing, sometimes under the influence of probable action by the court.

[edit] Unique Statutes

The following are some of the statutes found uniquely in the Qing code.

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[edit] Qing Code and the West

The Great Qing Legal Code was the first written Chinese work directly translated into English[citation needed]. The translation, known as Fundamental Laws of China was completed by Sir George Thomas Staunton in 1810. It was the first time the Qing code had been translated into a European language. The French translation was published in 1812.

The translation played an important role for Europeans to gain insights into the Chinese legal system. Due to the increase competitiveness among European powers in the 18th century, understanding of the Chinese legal foundation was crucial to gain profitable trading access into China. Even though the Qing Code was in form exclusively a criminal code, the British was able to use it to their advantage to resolve trading obstacles and resistance, such as those resulted in the Opium Wars. It was this fundamental understanding of the Chinese legal code that made it possible for Britain to devise a number of unequal treaties geared to their advantage.

In the late Qing dynasty there was a concerted effort to establish legal codes based on European models. Because of the German victory in the Franco-Prussian War and because Japan was used as the model for political and legal reform, the adopted law code were modelled closely after that of Germany.

[edit] The End of Qing Code and Republican Laws

In 1912 the collapse of Qing dynasty ended 268 years of its imperial rule over China and 2000 years of imperial history came to an end. The Qing court was replaced by the Republic of China government. As a result, the Qing code became defunct de jure.

[edit] Republic of China

The existing German-based legal codes were then adopted by the new Republic of China government, but they were not immediately put into practice. Following the overthrow of the Qing dynasty in 1912, China came under the control of rival warlords and had no government strong enough to establish a legal code to replace the Qing code. Finally in 1927, Chiang Kai-shek's Kuomintang government attempted to develop Western-style legal and penal systems. Few of the KMT codes, however, were implemented nationwide. Although government leaders were striving for a Western-inspired system of codified law, the traditional Chinese preference for collective social sanctions over impersonal legalism hindered constitutional and legal development. The spirit of the new laws never penetrated to the grass-roots level or provided hoped-for stability. Ideally, individuals were to be equal before the law, but this premise proved to be more rhetorical than substantive. In the end, most of the new laws were discarded as the KMT became preoccupied with fighting the Chinese Communists and the invading Japanese.

Law in the Republic of China on Taiwan is based on the German-based legal system carried to Taiwan by the Kuomintang. In the area of constitutional law, the Republic of China uses the 1947 Constitution which was promulgated for both Mainland China and Taiwan. Numerous changes have been made to take into account the fact that the Republic of China only controls Taiwan and two counties of Fujian.

The influence of the Qing Code manifests itself in the form of an exceptionally detailed penal code, with a large number of offences punishable by death. For example, in addition to the offence of piracy, there are also piracy causing grievous bodily harm (punishable by death or life imprisonment pursuant to Section 3 of Article 333 of the Criminal Code of the Republic of China (中華民國刑法)), as well as piracy causing death and piracy with arson, rape, kidnapping or murder (both entail mandatory death penalty pursuant to Section 3 of Article 333 and Article 334 of the Criminal Code). One legacy from those bygone era is the offence of murder of a family member (e.g. patricide and matricide). The offense entails life imprisonment or death pursuant to Section 1 of Article 272 of the Criminal Code, even for minors under 18 years old until abolition on July 1, 2006 of Section 2 of Article 63 of the Criminal Code that would permit life imprisonment or death penalty against minors committing crimes under Section 1 of Article 272.

[edit] People's Republic of China

In the People's Republic of China, while the legal system was, and to some extent still is, based on socialist law. It incorporates certain aspects of the Qing Code, most notably the notion that offenders should be shamed into repentance - hence the now notorious practice of parading condemned criminals in public - and the idea of using law as the means of controlling social mores.

After the Communist victory in 1949, the People's Republic of China quickly abolished the Republic of China's legal codes and attempted to create a system of socialist law copied from the Soviet Union. With the Sino-Soviet split and the Cultural Revolution, all legal work was suspected of being counter-revolutionary, and the legal system completely collapsed.

With the start of the Deng Xiaoping reforms, the need for reconstructing a legal system to restrain abuses of official authority and revolutionary excesses was seen. In 1982, the National People's Congress adopted a new state constitution that emphasized the rule of law under which even party leaders are theoretically held accountable. This reconstruction was done in piece-meal fashion. Typically, temporary or local regulations would be established and after a few years of experimentation, conflicting regulations and laws would be standardized.

Since 1979, when the drive to establish a functioning legal system began, more than 300 laws and regulations -- most of them in the economic area -- have been promulgated. The use of mediation committees, informed groups of citizens who resolve about 90% of the PRC's civil disputes and some minor criminal cases at no cost to the parties, is one innovative device. There are more than 800,000 such committees in both rural and urban areas.

In drafting the new laws, the PRC has declined to copy any other legal system in whole, and the general pattern has been to issue laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more precedental value than in most civil law jurisdiction. In formulating laws, the PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the Republic of China on Taiwan, and the English-based common law used in Hong Kong. The law of the United States has also been very influential particularly in the area of banking and securities law.

[edit] Hong Kong

In Hong Kong, after the colonization by the British Empire in 1841, the Great Qing Legal Code remained in force for the local Chinese population. Until the end of the 19th Century, Chinese offenders were still executed by decapitation, whereas the British would be put to death by hanging. Even deep into the 20th Century and well after the fall of the Qing dynasty in China, Chinese men in Hong Kong could still practice polygamy by virtue of the Qing Code -- a situation that was ended only with the passing of the Marriage Act of 1971. Therefore the Great Qing Legal Code was actually enforced in some form for a total of 327 years, from 1644 to 1971.

Because there are still existing alive Concubinage married before the Marriage Act of 1971, and their rights (of inheritance, and the inheritance rights of their sons and daughters) are respected by Hong Kong law system (even after 1997 handover), the Great Qing Legal Code is still being referenced when handling the legal cases with history dated back before 1971.

[edit] Sources

  • Bodde, Derk, and Clarence Morris, eds. Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases. Cambridge, MA: Harvard University Press, 1967.
  • Jones, William C. The Great Qing Code. Oxford: Clarendon Press; New York: Oxford University Press, 1994.

[edit] See also

[edit] External links

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