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The Status of Law and Lawmaking Procedure under the Kuomintang 1925–46

Published online by Cambridge University Press:  23 March 2011

Meredith P. Gilpatrick
Meredith P. Gilpatrick
Affiliation:
Ohio State University
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Extract

The initial reaction of the foreigner upon his first contact with Chinese law and legal system is one of frustration and noncomprehension. Those given to facile generalization are apt to declare either that China is devoid of any serious juridical tradition or that it is still in a primitive state of legal development. But both of these conclusions are clearly false since the Middle Kingdom has a long and complex legal history, and, while certain jural notions of responsibility which characterize Western law have not come into being in the East, their absence is not proof of arrested growth but merely that jural problems are envisaged in another fashion in the Sinitic body politic. The basic fact which the foreigner slowly comes to recognize is that, while the need for justice is constant in any culture, in Chinese society it is attained in a unique fashion.

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The Journal of Asian Studies , Volume 10 , Issue 1 , November 1950 , pp. 38 - 55
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Copyright © The Association for Asian Studies, Inc. 1950

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References

1 This was the frank reaction of John Dewey, who, visiting China in 1920, wrote, “Is China a nation?” New republic, Jan. 12, 1921, reprinted in Character and events (New York, 1929), 1:237–43.Google Scholar

2 Dewey, John points out Chinese lack of respect for courts and legal proceedings in “The new leaven in Chinese politics,” Asia, April 1920, reprinted in Character and events, 1:244–54.Google Scholar

3 This article was provoked by the author's attempts to understand the various types of current law passed by the Kuomintang while serving first in the Chinese Legal Section, Far Eastern Unit, U. S. Department of Commerce, 1943–45; second, as attaché to the American Embassy, Chungking, 1945–46. It is based largely on Chinese materials which were translated under his supervision, chief of which was an extended article by Mr. Shih Shang-k'uan, Secretary of the Legislative Yüan, , entitled “Legislative procedure since the creation of the National Government,” China law journal (in Chinese), 3, no. 6 (1945), 37–46.Google Scholar

4 The best single survey of the tremendous work which the government of China has undertaken since the time of the Empress Tz'u Hsi to modernize the vast body of traditional law by the chatting and adopting of “six codes” is given by Escarra, Jean in an address before the Société de Législation Comparée in Paris, May 23, 1930, printed in Bulletin mensuel de In Société de Législation Comparée, 59 (July-Sept. 1930), 407–49.Google Scholar

5 This distinction from Roman and English law is acknowledged to have only an imperfect fit when applied to China, but the distinction indicated is that between written and customary law.

6 The “six codes” were adopted by China as follows: commercial laws 1903–05, 1929; Criminal Code of Procedure 1912, 1915, 1918, 1919 (articles placed in force piecemeal because of the unsettled political state of the country); Criminal Code 1912, 1923, and 1935 (original enforcement by Sun Yat-sen with complete revisions); Civil Code of Procedure 1921; Organic Law 1928 and 1931; Civil Code 1930–31; see Escarra, passim; also Jean Escarra, Le droit chinois (hereafter Escarra) (Paris, 1936), pt. 2, chap. 2.

7 Law is viewed as a social model or example, not an unconditional rule. “What is in alegal code is not enforced,” according to Wang Tchien-sien, Legal principles of ancient China (in Chinese) (Shanghai, 1925) as quoted in Escarra, 74.

8 Comment of Sir George Thomas Staunton in his translator's preface to Ta Tsing leu lee;being the fundamental laws, and a selection from supplementary statutes of the penal code of China (London, 1810), xxvii. It is the writer's observation that this free construction of legal penalties is still characteristic of modern Chinese enforcement of law.

9 From 1908 to the present the Chinese government has wavered in establishing a check on ultra vires acts, except as the Judicial Yüan may be called upon to make a ruling. This accords with the continental view that an act of an executive or administrative agency cannot be reviewed by an ordinary civil court. The dean of the law profession, Wang Chung-hui, pointed out years ago that his country deliberately had copied the jural system of Fiance and Germany and not that of England and the United States; Wang Chung-hui, Law reform in China (London, 1919), passim. Out of fifteen constitutions and organic laws between 1908 and 1946 only eight (those of 1913, 1919, 1923, 1925, 1931, 1934, 1936, 1946) embraced the notion of unconstitutionality. The fugitive life of the first four documents is described by Tyau, M. T. Z., China's new constitution and international problems (Shanghai, 1918), 19–21Google Scholar, and H. G. W. Woodhead, China year book 1920; 1924 and 1926–27 gives three others. Pan Wei-tung, The Chinese constitution (Washington, D. C, 1945) gives the text of eleven constitutions.

10 Willoughby, W. W., Constitutional development in China (Washington, D. C, 1922), 49.Google Scholar

11 The exception was the school of Legalists (Fa-chia) of which Han Fei Tzu was the most brilliant exponent advocating governance of the state by an external body of rules applied uniformly to all persons (Latourette, K. S., The Chinese [New York, 1934], 1:80–83).Google Scholar Detailed treatment of this school is given by K'i-tch'ao, Leang, La conception de la loi et les théories des Légistes à la veille des Ts'in (Peking, 1926);Google ScholarDuyvendak, J. J. L., The book of Lord Shang (London, 1928);Google Scholar and The complete works of Han Fei Tzu, translated by Liao, W. K. (London, 1939).Google Scholar

12 Escarra, 69–70.

13 Ibid., 72.

14 Shih, Hu points out in his Development of logical method in ancient China (Shanghai, 1922), 174–75Google Scholar that before the fourth century B.C. the Chinese notion of law was largely penal hsin, meaning penalties, which under Neo-Mohists influence was supplanted by the word fa, meaning model or mold. From standard of measure its meaning was extended to the relation of ruler and subject, then conventional social form, and finally to the ordering of people or law.

15 Yu-lan, Fung, “Why China has no science,” International journal of ethics, 30 (April 1922)Google Scholar, passim. This penetrating article suggested to the writer the course of analysis of this and the next few pages.

16 Jean Escarra, Bulletin mensuel de la Société de Législation Comparée, 59:409. China since Chou times has pursued the rule of magisterial supremacy as opposed to the Western doctrine of the supremacy of law in government whereby government was made independent of the personal goodness and capacity of the ruler. These two schools of thought were already contending for a following in the time of Confucius. The school which elevated li, or humane traditionalism, triumphed. Thus Escarra remarks, “II n'est pas necessaire qu'il gouverne; il suffit qu'il demeure immobile dans sa perfection....”.

17 Hu Shih, 1–5, declares that the key to Chinese thought since Sung times lies in the various interpretations given to the Chinese phrase ko-wu found in the Ta-hsüeh (The great learning). Does it mean “to investigate things” (naturalistic knowledge); or does it mean “to rectify the mind in order to have intuitive knowledge” (humanistic knowledge)? Because Chinese reflection and philosophy turned from natural objects and confined itself to problems of moral and political philosophy it developed no natural science. Ko-wu was taken only in its latter meaning; Chinese thought became exclusively centered on man.

18 The modicum of preparation of members of presidential missions sent to China both under Roosevelt and Truman is well known. Also one might wonder if they were appreciably more successful than those sent by England a century earlier.

19 This lia should not be confused with the entirely different li mentioned earlier, meaning rite, ceremony, worship due ancestors, or courtesy. See Giles, H. A., A Chinese-English dictionary (Shanghai, 1912)Google Scholar for detailed use of ch'ing (character 2187) and li (character 6879). For Chinese terms used in this article see characters at end of article.

20 Jean Escarra, together with several Jesuit priests has gathered together the decisions of the Chinese supreme court. A summary of the facts and rulings are given in Chinese and French as follows: covering the years 1912–23 in Recueil des sommaires de la republique de Chine (Peking, 1924–26), 3 vols.; covering the years 1928–37 continued in I'Année judiciaire chinoise (jurisprudence de la cour supreme de Nanking) (Tientsin, 1933–38), 10 vols. The word “jurisprudence” in the foregoing titles is used in its continental sense of law as enforced by courts, officials, and daily practice; not in its English sense of history of jural thought or legal philosophy.

21 Escarra, Le droit chinois, 409, declares that the central Confucian doctrine causes the “state” and “law” to depend upon the personal goodness and capacity of the ruler who by his knowledge of universal law keeps the material world in order; see also footnote 16 above.

22 Ibid., 74–75.

23 Ibid., 70.

24 Smith, Munroe, A general view of European legal history (New York, 1927), 332–36.Google Scholar The author points out that whenever law making and interpretation are left in the hands of social face-to-face groups, there is no “general will,” and law reverts to local custom. The description is perhaps not too inadept an analysis of Chinese jural relations throughout most of their history, except that these “localized laws” possessed a unified setting, namely, a common Confucian tradition.

25 Escarra, 69.

26 A curious parallelism seems to have arisen here between Chinese and modern French thinking. A work by Wahl, Jean, Vers le concret (Paris, 1932)Google Scholar, caused a great stir in continental circles somewhat over a decade ago. This same trend in French philosophy has been carried still further after World War II by current existentialism.

27 Masson-Oursel, P., “Etudes de logique comparé Evolution de la logique chinoise,” Revue philosophique, 84 (July 1917), 59–76.Google Scholar The French professor of comparative religions observes that since the Chinese language has a minimum of grammar with meaning dependent on the position of the characters, the result is. a broad and dry expository style whose precise meaning turns upon the method of interpretation of the larger text. Thus, though the Chinese language may be serviceable enough to express with some precision its own indigenous concepts of law, its inherent structure imposes certain limitations on the full representation of European jural notions. To the present writer the Chinese language appears to be simultaneously too concrete and too vague for ordinary legal expression and rule making.

28 The writer did not have access to Granet's work at the time of writing, so Pensée chinoise (Paris, 1934), 589é90Google Scholar, as cited in Escarra, Le droit chinois, 70, was used.

29 Ibid.,

30 Ibid.

31 Ibid, 76.

32 Matter expounded earlier in connection with footnote 32.

33 Escarra, 77.

34 These time limits are accepted since they are those of the basic article used by Mr. Shih Shang-k'uan as noted in footnote 3.

35 Shih, 1.

36 As already indicated the republic of China after 1911 deliberately copied the jural systems of France and Germany. Accordingly the Chinese accepted the principal legal distinctions of these two countries; that is, the difference between loi and règlemcnt of France, and gesetz and ausfuhrungsgesetz, of Germany, which difference between general law, fa-lu, and enforcing regulations or orders, t'iao-li, or ming-ling, was carefully incorporated in the some fifteen draft constitutions, organic laws, or programs for China between 1908 and 1916.

37 Lynn, Jermyn Chi-hung, Political parties in China (Peking, 1930), 70–84Google Scholar and Leang-li, T'ang, Inner history of the Chinese revolution (New York, 1930), chapts. 12 and 14.Google Scholar

38 Shin, 2.

39 Hokombe, Arthur N., The Chinese revolution (Cambridge, 1930) gives the English text of the constitution as appendix C, pp. 356–70.Google Scholar

40 Holcombe, 360–62, articles 27–42 of constitution of the Kuomintang.

41 Shin, footnote 1.

42 Linebarger, Paul M. A., The China of Chiang K'ai-shek (Boston, 1943), 16, 46, and chart opposite 331.Google Scholar

43 Shih, footnote 2, enumerates seventeen organs of the National Government.

44 Shih, 3.

45 English translation of Organic Law of National Government, dated October 4, 1928, is given in appendix E of Holcombe; see also Wei, 241. The entire body of organic statutes of 1928 with alternate pages of Chinese and French translation can be found in Jobez, Robert, Organisation du gouvernement nationaliste (Shanghai, 1929).Google Scholar

46 Holcombe, 374.

47 Shih, 3–4. An English translation of the Revised Organic Statute promulgated December 30, 1931, evidently a revision a year later of the law cited, is given in the China handbook 1937–43 (New York: Macmillan, 1943), 88–90; Wei, 256–62.Google Scholar

48 See footnote 45.

49 Shih, 4, states that details are to be found in “Outlines of legislative procedure” passed by the Standing Committee of the Central Executive Committee June 23, 1932, and two revisions of July 1932 and April 20, 1933.

50 See material relating to footnote 36 above.

51 Shih, 4.

52 Ibid., 5.

53 Ibid., 4–5.

54 It was the personal opinion of Dr. John C. H. Wu (Wu Chin-hsiung), head of one of the committees in the Legislative Yüan, expressed in 1946 to the writer in Chungking, that once “the will” of the Executive yüan had been ascertained, the role of the Legislative Yüan was largely pro forma in framing legislation.

55 Linebarger, 54–55, points out how the Council of State, Kuo-min cheng-fu, acts purely as a solemnizing body for legislation and appointments.

56 Shih, 6.

57 Ibid., 5, articles 12–14 of “Rules governing resolutions of Legislative Yüan”; the organization of Legislative yüan is detailed in the China handbook 1937–13, 93–94.

58 Shih, 6. Examples of constitutive acts are “Provincial organic general outlines of the military council, March 11, 1932”; “Provisional constitution of Republic of China during period of tutelage,” etc.

59 Shih, 7–8.

60 S. Y. T'ang, the translator of Shih's article, notes that a better word than “outlines” might be “principle.”.

61 Shih, 7. The meaning of the technical terms describing Chinese ordinances as translated by S. Y. T'ang coincide fairly closely with Escarra's exposition as given in Le droit chinois, 123–24. Escarra's translation is in French: T'iao-li — regulation; une acte qui… vient de suite aprés la loi; règlement. Kang-ling — outlines, principles; ta-kang — general outlines, general principles; principes généraux. Kuei-ch'eng — bylaws; réglement special d'un service public, d'un établissement. Kuei-tse — rules; mesures de detail… prisés par [un bureau], Hsi-tse — detailed rules; réglement de detail. Chang-ch'eng — constitution; la charte de commission [pour service publique]. Pan-fa — measure; modéles, formes, mode d'execution.

Escarra enumerates an additional eight types of rules, not given in Shih's article, which are short of law, as follows: t'ung-tsem — règles générales; chien-changn — règlement, règles re-sumées; fa-ch'engo — formule, modéle; p'an-lip — decisions, directives... sens technique de précédent judiciaire; yüan-tseq — principes directeurs; tsung-tser — principes généraux; pan-lis — règies; tse-ch'engt — statut d'un service public ou privé.

62 Escarra, , Bulletin mensuel de la Société de Legislation Comparée, 59 (July-September 1930), 416.Google Scholar

63 Borchard, Edwin M., Guide to law and legal literature of Germany (Washington, DC, 1912), 72–73Google Scholar, footnote 5, lists this work as The German civil code, translated and annotated by Wang Chung-hui, London, 1907.

64 Nitobe, I., Western influence in modern Japan (Chicago, 1931), 71–86Google Scholar, article by Kenzo Takayanayi. especially pp. 74–75.

65 Yu-hao, Tseng, Modern Chinese legal and political philosophy(Shanghai, 1930), 198Google Scholar, quoting from an article by Chung-hui, Wang in the Chinese social & political science review, June 1917.Google Scholar

66 Escarra, , Le droit chinois, 123–24.Google Scholar

67 This ambiguity was noted both by Dr. Y. C. Ho, Dean of the National Central University Law School, Nanking, and by Robert T. Byran, Jr., a veteran American lawyer of Shanghai in discussion with the writer at the American Embassy. During World War II the printing of various legislative acts was frequently incomplete, failing to disclose the originating body and process of enactment. In such cases, therefore, the lawyer was presented with a major ambiguity in legislative intent.

68 Lincbarger, , 161–70, 174–75; Edgar Snow, Red star over China (New York: 1939), 147–76.Google Scholar

69 The author does not possess the official documents to authenticate this point. It was common knowledge, however, among the Chinese legal profession during 1927–37 that the t'iao-li of the period was passed with intent of “temporary law” to be duly superseded when quieter times arrived. This opinion was expressed to the author by Chinese lawyers who resided both in Nanking and in Canton during the period.

70 Shih, 8. The Standard Statute for Enactment of Laws & Regulations, promulgated May 14, 1929, declares the following require statutory bills: (1) amendment or repeal of statute, (2) additional action called for in the law, (3) matters affecting organs of government or rights and duties of people.

71 Ibid.

72 Ibid., 10.

73 Shih, 9–10, surmises two possible reasons to be: (1) the Legislative Yüan was in session most of year, hence there was no difficulty in passing laws at any time, (2) the Supreme National Defense Committee had power to enact special legislation.

74 Done at the fifth session of CEC; see China handbook 1937–45 with 1946 supplement (New York, 1947), 60–61Google Scholar. The SNDC appears to be successor to the Central Political Council which coordinated top KMT and National Government activities from 1924 to 1938 (China handbook 1937–43, 84–85).

75 Shih,9.

76 The act of the ninth plenary session of CEC December 22, 1941, merely stabilized as normal the president's right to rule by “emergency orders” recognized by article 44 of the Draft Constitution of May 5, 1936; Shih, 9–10.

77 In eleven out of the twelve constitutions proposed or adopted by China between 1908 and 1946, there was a “bill of rights.” Living still under the influence of Confucian philosophy it was unthinkable to the Chinese jurists who drafted these successive constitutions that governmental powers should be inherently limited. Accordingly, the rights and privileges allowed to citizens in the constitution were always offset by the enumeration of duties and obligations or by the phrase that rights were to be enjoyed “in accordance with law.” (See Pan Wei-tung, appendices, and Constitution of December 25, 1946, printed by Chinese news service,1947.)

Anglo-American restraint of governmental power, however, is still to be attained in modern China. The Chinese habeas corpus act in “Regulation for safeguarding the freedom of human person,” July 15, 1944, which was to become effective August 1, 1944, demonstrates this point. The eleven articles of the law given in China handbook 1937–45,265–66, indicates that all the National Government has accorded the arrested party is the right that (a) the accused and his relatives shall be duly informed of the charge (art. 3), (b) an appeal may be made to the superior level of the arresting agency to review the charge (art. 6). It should be noted that no right for judicial review of the act of a governmental agency is provided unless the order of arrest issues itself from a court. The claim that this is a habeas corpus procedure in the Anglo-American tradition would appear to be premature.

78 When the writer departed from China in July 1946 the National Government was passing interim legislation to care for the reoccupation of liberated areas. It is to be presumed the wartime grant of powers continued at least until then, and probably down to 1947.

79 Shih, 14.

80 Ibid., 12–15.

81 Pan Wei-lung, 295, and Constitution of 1946 printed by the Chinese News Service; Escar-ra, Le droil chinois,284, describes this activity of the Judicial Yüan..

82 Chinese law review, 1933–46Google Scholar (in Chinese), contains a running summary of all decisions of the administrative court. The National Government did not erect the administrative court till November 17, 1932, and it did not come into operation until 1933; see Escarra, Le droit chinois,311–10.

83 Escarra, , Le droit chinois, 87–90Google Scholar. The French jurist indicates that the Chinese terms fa, lü, and ling have long individual histories stretching back into Chou limes. Consult also his footnote 25 on page 16. Details of Chinese legal past are to be found in Shen Chia-pen's collected works, Shen chi-i hsien-sheng i-shu(40 volumes), cited on p. 495 of Escarra's bibliography.

84 There is of course the exception hereto created by wartime grant of powers noted above in connection with footnote 76.

85 Taken from an English translation made at the American Embassy of the Chinese text of the Standard Law for the Enactment of Laws and Regulations of 1943.

86 Ibid.

87 Shih, 14; the detailed definitions are: kuei-ch'eng— organic bylaws; bylaws for handling office affairs; kuei-tse — enforcement of laws or orders; rules for meeting; rules for administration; hsi-tse— detailed enforcing rules; detailed rules for handling affairs; pan-fa— methods designated or enacted for carrying out rules; enforcement measures.

88 This term is not to be found in Escarra.

89 Shih, 14–15.

90 Ibid., 14.

91 There remain eight kinds of ming-ling listed by Escarra and given in footnote 61 above. Kang-yao, it should be recollected, is not given by Escarra; hence, the count is an additional nine rather than eight types of rules which might be passed by administrative bodies.

92 Shih, 15.

93 Escarra, 121–22.

94 Consult footnote 9 above.

95 Promulgated January 1, 1935, and effective July 1, 1935. Comments on the wisdom of bringing about this basic change in Chinese mores are made by Liu, Francis S., “Adultery as crime in China,” China law review, 7 (July 1935), 144–47.Google Scholar The issue is discussed further by der Valk, Marc van, An outline of modern Chinese family law (Peking, 1939), 171, 193Google Scholar, quoting the decision of the Central Political Council forwarded to the Legislative Yuan July 23, 1930: “Although it [concubinage] actually exists it is inadmissible that the law should recognize its existence. The concubine's position need not be provided for in legal codes or special laws.” Under historic Chinese codes, especially the Ch'ing code of 1646, a concubine received legal recognition; see Escarra, 104–05, footnote 52. This legal sanction of the “secondary wife” continued down, to the thirties, since only as the “six codes” were adopted were the relevant provisions of the Ch'ing law superseded.

96 Information supplied to the writer by S. Y. T'ang, Dr. Y. C. Ho, and other Chinese lawyers.

97 Text published by Extraterritoriality Commission 1923.

98 British Chamber of Commerce, The Nanking government's laws and regulations (Shanghai, 1929–39), 5:1–15Google Scholar. The English translation of important Chinese commercial laws passed from 1900 to 1935 consists of 27 mimeographed volumes.

99 For text of the law, see Ibid., 5:46–62. The writer's article entitled “Foreign corporations must register in China,” U.S. foreign commerce weekly, July 1, 1944Google Scholar, discusses the registration law of 1931 and its revision in 1943, especially as it affected foreign corporations doing business in China.

100 Théry, Francois, Les sociétés de commerce en Chine (Tientsin, 1929)Google Scholar, discusses the earlier Commercial Association Law of 1914 and the draft of the Company Law of 1929. Since the writer does not have Théry's treatise before him as this is written, the exact enforcement date for the law of 1914 cannot be given.

101 British Chamber of Commerce, op. cit., 16:7–12.

102 Ibid., 7:1–11, gives text. The most comprehensive available article on the topic of business registration in China is by Ngan-min, P. Tchen and Mankiewicz, R. H., “Le registre de commerce en Chine,” Mélanges juridiques de l'université l'Aurore (Paris, 1946), 299–363.Google Scholar

103 For details consult author's article cited in footnote 99.

104 Text procurable from Chinese Legal Section, Far Eastern Unit, Office of International Trade, U. S. Department of Commerce. See also Wiener, Myron, “Registration of foreign companies in China,” U.S. foreign commerce weekly, June 8, 1946.Google Scholar

105 The Italian Giambattista Vico appears to be the first modern European thinker to grasp the notion of “organic unfoldment of history,” exhibiting the interconnection of myth and social institutions of which China as well as Greece are outstanding examples. The reign of “abstractionism” which settled over Western thought after Descartes, Puffendorf, Grotius, et al., never caught on in the Far East where Chinese and Japanese notions of law remained concrete. The opposition of Vico to the trends of late Renaissance thought is well discussed by Vaughan, C. E., Studies in the history of political philosophy before and after Rousseau (Manchester, 1939), 1, chap. 5, especially pp. 210–18, 229–36Google Scholar. In 1948 Vico's Scienza nuova was translated into English by Bergin, T. G. and Fisch, M. H. (Ithaca, N. Y.: Cornell University Press)Google Scholar.

106 Wang Chung-hui, John C. H. Wu (Wu Chin-hsiung), Chinese staff of Soochow University Law School, et al., were largely trained in Western law either in the United States or in major countries of Europe. The best account of Chinese legal educational curricula and institutions is given by Escarra, pt. four. Chinese colleges and universities offering instruction in law are tabulated on pp. 373–83.

107 The jural truism that war and civic disorder do not repeal law but merely suspend its operation was enunciated by Cicero in the first century B.C. The Roman lawyer living in an age, similar to our own, of prolonged war and civil strife reflected extensively on the relation of expediency to public morality; consult bk. 3 of his De officiis.

108 Staunton's translation has already been mentioned in footnote 8; Escarra also analyzes the main features of Manchu code on pp. 100–105 plus footnotes.

109 Though police surveillance was no novelty in either Yüan Shih-k'ai or Kuomintang times, these governments at least did not have the temerity to explicitly specify such power in the “six codes.”.