Cover page

Table of Contents


Series page

Title page

Copyright page



Tables and Figures



Author's Note


1: Development of the Socialist Legal System

I. Historical Foundations for PRC Law

II. Transition to Law in the PRC

III. Law and Political Conflict

IV. Post-Mao Legal Reform Under Deng Xiaoping

V. Local and Global Contexts for China's Socialist Legal System


2: Political Stability

I. The Centrality of Party Leadership

II. Constitutional Arrangements

III. Legal Institutions

IV. Protecting Stability: Law and Social Control


3: Economic Prosperity

I. Local Conditions and Practices

II. Approaches to Law and Development

III. Support for Development: Contract and Property Law

IV. Managing Development: Taxation and Regional Development


4: Social Development

I. Traditional Party/State Priorities

II. Emerging Priorities in Social Development


5: International Engagement

I. Changing Perspectives on International Law

II. Foreign Business Relations

III. Participation in International Governance Regimes





China Today

Creative Industries in China, Michael Keane

Urban China, Xuefei Ren

China's Environmental Challenges, Judith Shapiro

Title page

For my students, from whom I have learned so much


Tables and Figures


1.1: Comparison of Jiangxi Soviet, Jin Cha Ji Border Region, and PRC Laws
1.2: Judicial Case Loads in 2010
1.3: CIETAC Arbitral Case Loads – Cases Accepted by CIETAC (Foreign-Related and Domestic)
2.1:  NPC Organization
2.2: State Council/Administrative Agencies
2.3: Licensed Lawyers in China
5.1: WTO Complaints in Comparative Perspective



2.1:  Court Structure 


1894–5First Sino–Japanese War.
1904–11Imperial Law Commission (Shen Jiaben). Influence of Japanese and German advisors. Influence of German civil law. Enactment of Company Law (1904); Court Organization Law (1909); Criminal Codes (1911); drafting of Trade Law, Trademark Law, Civil Procedure Law; Civil Code.
1911             Fall of the Qing dynasty. Republic of China (ROC) established under Sun Yat-sen.
1919May 4th Movement, ideological and patriotic awakening for many who later joined the Communist movement.
1921Founding of Communist Party of China.
1923First United Front: Alliance of Nationalist Party (Guomindang – GMD) and Communist Party of China (CPC) against warlords.
1927Split between GMD and CPC; civil war begins.
1927–37“Nanjing Decade” – consolidation of ROC rule. Legislation on Civil Code (1929); Company Law (1929); Criminal Code (1935); Civil Procedure Law (1935); Trademark Law (1936).
1928–35Jiangxi Soviet (CPC Base Area).
1934–5Long March: CPC evades GMD encirclement. Mao Zedong becomes CPC leader.
1936–7Marco Polo Bridge Incident, Japanese Invasion of China.
1937–45Xian incident, 2nd United Front (GMD/CPC alliance against Japan); Nanjing Massacre (December 1937); Communist forces establish Jin Cha Ji/Shen Gan Ning Border Areas.
1945–9Defeat of Japan (1945). Civil war between GMD and CPC resumes.
1949People's Republic of China (PRC) founded (October); ROC removed to Taiwan.
1950–3Korean War.
1950–4CPC law and policy focused on state building. Enactment of Marriage Law (1950), Land Reform Law (1950), Constitution (1954). First meeting of National People's Congress. Political consolidation through campaigns such as San-Fan and Wu-Fan (1951–2).
1953–7First Five-Year Plan; PRC adopts Soviet-style economic planning.
1956–7Hundred Flowers Movement, CPC permits limited political debate. Anti-Rightist Movement, retaliation against critics of CPC leadership.
1958–60Great Leap Forward: An effort to transform China through rapid industrialization and collectivization.
1959Tibetan Uprising in Lhasa; Dalai Lama flees to India (March).
1960–2Three Hard Years, widespread famine with tens of millions of deaths. Mao influence wanes.
1963–5Socialist Education Campaign: Mao reasserts authority.
1966–76Great Proletarian Cultural Revolution; Retaliation against Mao opponents (real and perceived). Mao personality cult.
1972President Richard Nixon visits China; “Shanghai Communiqué” pledges normalization of US–China relations (February).
1976Tangshan earthquake kills hundreds of thousands (July). Death of Mao Zedong (September). Ultra-Leftist Gang of Four (includes Mao's wife Jiang Qing) arrested (October).
1978Deng Xiaoping assumes power; launches legal and economic reforms (3rd Plenum of 11th CPC Central Committee) (November–December). One-child family planning policy introduced.
1979Democracy wall movement suppressed. Wei Jingsheng imprisoned. China enacts “Seven Laws,” first legislation of the post-Mao legal reforms – includes Criminal Law; Criminal Procedure Law; Organization Laws for People's Courts, People's Procuratorates, Local People's Governments and Congresses; Election Laws; and Joint Venture Law. US and China establish formal diplomatic ties; Deng Xiaoping visits Washington. China announces rehabilitation for victims of 1957 Anti-Rightist Campaign.
1981CPC Resolution on Party History repudiates Cultural Revolution. Trial of Gang of Four.
1982Census reports PRC population at more than one billion.
1984Margaret Thatcher co-signs Sino–British Joint Declaration agreeing to return Hong Kong to China in 1997 (December).
1986–7Student demonstrations in Fall 1986 lead to dismissal of reform-minded CPC General Secretary Hu Yaobang in early 1987 and launch of “Anti-Bourgeois Liberalism Campaign.” CPC General Secretary Zhao Ziyang speech to 13th National CPC Congress asserts China in preliminary stage of socialism (October 1987).
1988Economic crisis (inflation, runs on local banks, CPC Special Politburo meeting to cut government spending affects urban employment).
1989Tiananmen Square protests in Beijing and sympathetic protests across China culminate in June 4 military crackdown and subsequent period of repression and policy conservatism.
1992Deng Xiaoping's Southern Inspection Tour re-energizes economic reforms.
1993–2002Jiang Zemin is president of PRC and CPC General Secretary; economic growth agenda continues.
2001PRC accession to the WTO (November).
2002–3SARS outbreak in PRC and Hong Kong.
2003–12Hu Jintao is president of PRC and CPC General Secretary; introduces policies of “harmonious society” to counter challenges of rapid economic growth.
2008Sichuan earthquake kills tens of thousands (May). Summer Olympic Games in Beijing (August). Dissident Liu Xiaobo arrested for “Charter 08,” calling for political and legal reform (December).
2010Shanghai World Exposition; Liu Xiaobo awarded Nobel Peace Prize while in prison.
2012CPC 18th National Congress sees Xi Jinping appointed Party General Secretary. New Politburo Standing Committee reflects influence of Jiang Zemin and decline of Hu Jintao influence.
201312th National People's Congress appoints Xi Jinping President.


I would first like to thank Polity Press for their invitation and particularly David Winters for his steadfast support for the preparation of this volume. Research for this volume was supported by the Major Collaborative Research Initiative (MCRI) program of the Social Sciences and Humanities Research Council of Canada (SSHRC), for which I am deeply thankful. Several graduate students at UBC contributed significantly to the success of this project, including Erika Cedillo-Corral, Maggie Juan Li, Liu Huan, Liu Yue, Matthew Nickelmann, and Hanna Yang. I offer my deepest thanks to two anonymous readers, as well as to Alison Bailey, Timothy Cheek, Stanley Lubman, and Sophia Woodman for reviewing and commenting on the manuscript. The Faculty of Law at UBC has been unfailingly supportive of this project, for which I remain sincerely grateful. In particular, I would like to thank Rozalia Mate and Abbey Barley at the Faculty of Law for their ongoing administrative assistance. I would also like to thank my colleagues at Borden Ladner Gervais LLP for their longstanding encouragement and support. For those whom I may grievously have neglected to mention, I can only offer my apologies and deepest thanks. Naturally I remain responsible for the errors and omissions that no doubt remain.

Pitman B. Potter

Vancouver, Canada

February 2013

Author's Note

This text concerns the legal system of the People's Republic of China (PRC), and does not examine the laws of Taiwan, Hong Kong, or Macao. While these jurisdictions are considered part of “Greater China” and in the cases of Hong Kong and Macao are within the territorial boundaries of the PRC, common international usage generally equates China with the PRC. Accordingly, we have elected to use the term “China” in the title of this volume to denote the People's Republic of China.


The legal regime is a key element of governance in the People's Republic of China (PRC) today. Law in China remains very much a contested domain of conflicting concepts, policies, and practices. Scholars of Chinese legal studies have generated broad understanding of the PRC legal system and offered useful perspectives on its origins and operation. Jerome Alan Cohen's pioneering work on the PRC criminal justice system and many other topics combined with the work of Stanley Lubman, R. Randall Edwards, and William Jones to provide a scholarly foundation for understanding law in the early PRC.1 Their work continues to influence studies of contemporary Chinese law. Stanley Lubman, for example, has been a key participant in a broad debate over whether the PRC legal system satisfies the criteria of objectivity and autonomy required for the rule of law, or whether it matches notions about a “thin rule of law.”2 With greater possibilities for living, working, and doing research in China, China law scholars have been able more easily to study the operation of the PRC legal system at the local level.3 Detailed studies of many areas of China's civil and commercial law, property, contracts, criminal law and procedure, judicial institutions, international trade and investment, and many other areas have vastly expanded international understanding of the PRC legal system.4 As well, the burgeoning community of PRC scholars conducting research and analysis on China's legal system has contributed to our knowledge in many important ways.5 This volume is informed by much of this work.

Set against an historical tradition where law in China was an instrument of state rule and punishment, law in the PRC today serves primarily as an instrument of rule for the Communist Party of China (CPC). The PRC legal system is aimed first and foremost at protecting the power of the Party/State – that expansive network of bureaucratic and political organs responsible for administration and governance even as they remain subject to the leadership of the CPC. Other priorities include protection of private civil relationships of contract and property, supporting economic development, safeguarding of social interests and human rights, supporting further engagement with international institutions, and international trade and investment relations. The operation of law in China can be understood largely in light of tensions between these priorities and the imperative of Party/State power.

As well, students of law in the PRC need to be aware of the important gaps between laws and regulations on the books and in action. As a policy instrument, law in China is constantly subject to interpretation and intervention by central and local level officials of the Party/State. The application of legal and regulatory requirements to individuals and enterprises often depends on political priorities and relationships rather than on the text of the law itself. Whether in the area of constitutional rights, economic regulation in matters such as contracts and property, or social development issues of labor relations and environmental protection, the realities of legal performance often differ substantially from the content of laws and regulations. The courts too are affected by the political environment in which law operates – judicial decisions are often reviewed and amended by committees chaired by Party officials (so-called “Adjudication Committees”) before going into effect. Local enforcement of laws and regulations enacted for national application is often inconsistent, as local political and policy priorities affect interpretation and implementation. Just as China's interaction with international rule of law standards reflects dynamics of interpretation and application based on local conditions, so too is local implementation of central government edicts (including laws and regulations) subject to variation according to local imperatives. With these complexities in mind, this research and learning guide will provide a general introduction to the PRC legal regime, focusing on opportunities and challenges that change in China brings for the rule of law.

What began in December 1978 as a tentative legal reform program to re-establish government authority following the chaos of the Cultural Revolution (1966–76) has developed into a complex array of legal forms and organizations. The operation of law in China is affected by the fact that many aspects of the PRC legal regime are borrowed from European and North American legal models and yet also are suffused with local legal norms and culture. The legal regime remains heavily instrumentalist – a tool of Party and state policy. As the policy goals to which socialist law is applied have expanded, so too has the legal regime grown in reach and complexity. Law in the PRC remains a work in progress, subject to a range of policy priorities associated with China's socio-economic and political transformation and influenced by competing local and international norms.

The PRC legal system is worthy of study for many reasons. First is the intrinsic value of understanding legal norms and institutions in the most populous and soon to be largest economy in the world. As well, China's expanding trade and investment relations around the world lend practical value to the study of PRC law. In addition, understanding the structures and performance of the PRC legal system is important for its potential to strengthen understanding of other legal systems from a comparative perspective. Finally, China presents a case study of the development of “socialist law” as a category of legal system distinct from the Continental/civil and Anglo-American/common law models. China's “socialist rule of law” system reveals practices of adaptation and hybridization in response to engagement with the civil and common law models of Europe and North America. China's socialist legal system also reveals important dimensions of the relationship between ideals about the rule of law and imperatives of governance. This in turn invites consideration of notions about independence and autonomy of legal systems generally, and with regard to China in particular. For these reasons at least, the legal system of the People's Republic of China is a compelling focus for study by advanced undergraduate and graduate students in law, political science, and related disciplines.

This research and learning guide aims to provide students with basic information about the PRC legal system and to invite consideration and debate around foundational questions about law in China. Readers should be mindful that the specific content of particular laws and regulations will change over time, as will the organizational arrangements for China's legal institutions. By developing a basic understanding of the foundations of the PRC legal regime, readers of this volume can adapt to future changes in particular rules and organizations.

With these goals in mind, the volume opens with an historical overview and discussion of influences on PRC law today. The historical antecedents for the PRC legal system provide essential context for the current operation of law in China. Attention is given to the legal regime of the Qing Dynasty (1644–1911), where Confucian relational standards of socio-economic and political harmony were combined with punitive legalist doctrines of rigid enforcement and punishment. The legal system of the Republic of China (founded in 1911, removed to Taiwan in 1949) is also addressed, largely as an institutional context for the subsequent emergence of law in the PRC. The historical overview also examines legal arrangements in the CPC revolutionary base areas (particularly Jin Cha Ji Border Area), which provided a foundation for many of the laws of the early years of the PRC. The early history of the PRC is discussed as a source for law in the post-Mao era. With the post-Mao legal reforms of the Deng Xiaoping leadership after 1978, PRC law was linked increasingly with political control and economic and social development.

Accordingly, the book then turns to three thematic challenges that confront the PRC today, namely political stability, economic prosperity, and social development. The chapter on political stability focuses on the role of the PRC legal regime in ensuring and protecting the political authority of the Party/State. This combines normative issues of Party ideology with legislative and operational structures around criminal law and administrative control. The chapter on economic prosperity examines the ways in which the PRC legal regime supports expanded autonomy for commercial activities while still imposing a modicum of state regulatory intervention, as an alternative to the state-planned economy in which economic actors were wholly subordinate to state direction. Applied to the economy, the legal system of the PRC reflects development policies that have shifted from an emphasis on state planning to a qualified emphasis on market relations. This in turn supports a transition in the role of the government over economic affairs from one of direction to one of facilitation, even while reserving certain strategic sectors (e.g. security and defense, natural resources, telecommunications, and infrastructure) to the prerogatives of the Party/State. The chapter on social development examines the ways in which the PRC legal regime facilitates the transition in the policy imperatives of the Party/State from leading social transformation to providing social services. Touching on examples of health policy, education, labor, women's rights, and treatment of minorities, this chapter examines the emerging role of the Party/State as a protector of social wellbeing rather than a leader of revolutionary change.

Underlying all three sectors is the importance of the legal regime as an instrument for policy implementation and in providing legitimacy to the rule of the Party/State. These three thematic chapters explore tensions around dynamics of control and autonomy in local political, economic, and social relations, particularly in the relationship between the imperative of political stability and the needs of economic prosperity and social development. The PRC legal system is an important arena where these tensions are expressed and efforts to resolve them attempted.

Reflecting the expanded presence of China in the world, the final chapter examines issues of China's international engagement. The complex phenomenon of globalization presents opportunities and challenges for China's increased influence in the world. The opportunities to borrow, internalize, and adapt legal norms and institutions have been seized by China's leaders to develop a legal system that on the surface appears generally compatible with international standards and the legal systems of other countries. However, challenges emerge also, particularly as norms of liberalism (particularly standards of liberal democracy) challenge the monopoly on political power held by the Party/State. Many of China's official explanations of the direction of its legal development are grounded in assertions about the non-applicability of international liberal standards of governance. China's closer integration with the world political economy involves tensions between the standards that inform the global system and the prerogatives of the PRC Party/State.

This book is intended to serve as a research and learning guide for university-level audiences with general but non-specialized knowledge about China. The book relies on primary and secondary literature (a reference section is provided at the end of the volume) as well as the author's own experience and research. Included in the text are excerpts from Chinese laws and other legal materials, offered to illustrate points made in the main text and also to invite readers to begin grappling with the challenges of documentary analysis. Readers are encouraged to parse these documents with care to identify underlying elements of ideology, policy, and interest. Each chapter also includes discussion questions and suggestions for further reading.


1 Jerome Alan Cohen, The Criminal Process in the People's Republic of China (Cambridge, MA: Harvard University Press, 1968); Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford, CA: Stanford University Press, 1999); R. Randle Edwards, “An Overview of Chinese Law and Legal Education,” Annals of the American Academy of Political and Social Science, vol. 476: China in Transition (1984), pp. 48–61; William C. Jones, Basic Principles of Civil Law in China (Armonk, NY: M.E. Sharpe, 1989). The pioneering work of these scholars has been continued, often by their students, such as Albert Chen, Donald Clarke, Alison Connor, James Feinerman, and many, many others.

2 See review by Pitman B. Potter, “Legal Reform in China – Institutions, Culture, and Selective Adaptation,” Law & Social Inquiry, vol. 2, no. 4 (Spring 2004), pp. 465–95. Also see Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford, CA: Stanford University Press, 1999); R. Randall Peerenboom, China's Long March Toward Rule of Law (Cambridge: Cambridge University Press, 2002).

3 See e.g., Neil Diamont, Stanley Lubman, and Kevin O'Brien, eds, Engaging the Law in China: State, Society, and Possibilities for Justice (Stanford, CA: Stanford University Press, 2005); Eva Pils, “Land Disputes, Rights Assertion, and Social Unrest in China: A Case From Sichuan,” Columbia Journal of Asian Law, “Special Issue: Celebrating the Work of Stanley Lubman,” vol. 19, no. 1 (Spring–Fall, 2005), 235–92; Ethan Michelson, “Justice from Above or Below?” The China Quarterly, no. 193 (2008), pp. 43–64; Sida Liu, “Lawyers, State Officials, and Significant Others: Symbiotic Exchange in the Chinese Legal Services Market,” The China Quarterly, no. 206 (June 1, 2011), pp. 276–93.

4 The list of exemplary work by scholars from Asia, Europe, and North America is too vast to include in this text. However, an appreciation for the breadth and depth of current scholarship on Chinese law can be gained from “Special Issue: Celebrating the Work of Stanley Lubman,” Columbia Journal of Asian Law, vol. 19, no. 1 (Spring–Fall, 2005), pp. 1–29; “Special Issue: China's Legal System: New Developments, New Challenges,” The China Quarterly, no. 191 (September 2007); and Michael Mosher and Fu Yu, eds, Doing Business in China (New York: Interjura, looseleaf).

5 A short and woefully incomplete selection of PRC scholars working on issues of contract and property includes Cui Jianyuan, “Tudi shang de quanliqun lungang” [Theoretic outline of the cluster of rights in land], in Zhongguo faxue [Chinese legal studies], no. 2 (1998), pp. 14–20; Gong Xiangrui and Jiang Mingan, “Zai lun gongmin caichanquan de xianfa baohu” [Again, on constitutional protection for citizens' property rights], in Zhongguo faxue [Chinese legal studies], no. 2 (1998), pp. 70–3; Guo Mingrui, “Guanyu woguo wuquan lifa de san dian sikao” [Three perspectives on our country's property legislation], in Zhongguo faxue [Chinese legal studies], no. 2 (1998), pp. 21–6; He Qinhua, “Fa de yizhi yu fa de bentuhua” [Legal transplanting and localization of law], in Zhongguo faxue [Chinese legal studies], no. 3 (2002), pp. 3–15; Jiang Ping, “Drafting the Uniform Contract Law in China,” Columbia Journal of Asian Law, vol. 10, no. 1 (1996), pp. 245–58; Jiang Ping, Zhonghua renmin gongheguo hetong fa [Contract law in the People's Republic of China] (Beijing: Red Flag Press, 1999), pp. 735–8; Liang Huixing, “Zhongguo hetong fa qicao guocheng zhong de zhenglun dian” [Points of contention in the process of drafting China's contract law], Faxue yuekan [Law Science Monthly], no. 2 (1996), pp. 13–15; Liang Huixing, Zhongguo wuquanfa caoan jianyi gao [Outline of opinion on a draft Chinese property law] (Beijing: Social Science Manuscripts Press, 2000), pp. 95–7; Qian Mingxing, Wuquan fa yuan li [Principles of Property Law] (Beijing: Peking University Press, 1994); Wang Liming, “Tongyi hetong fa zhiding zhong de ruogan yinan wenti tantao” [Inquiry into various difficult questions in enacting a unified contract law], Zhengfa luntan [Political Science and Law Tribune], no. 4 (1996), pp. 49–56 and no. 5 (1996), pp. 52–60; Wang Liming, Wuquan fa lun [On property rights law] (Beijing: Chinese University Politics and Law Press, 1997); Zhang Lihong, “The Latest Developments in the Codification of Chinese Civil Law,” Tulane Law Review, vol. 83 (2009), pp. 999–1039; Zhang Mo, Chinese Contract Law: Theory and Practice (Leiden: Brill, 2006).


Development of the Socialist Legal System

The contemporary PRC legal system reflects a range of historical and contemporary influences. Domestic influences provide the foundation for Chinese law, beginning with the traditions of the imperial period. Legal initiatives under the Republic of China (est. 1911), during the revolutionary period, and after the 1949 Communist Revolution, reflected tensions between domestic concerns with increased international influence. The launching of legal reforms in 1978 signaled a new effort at building a legal system, although there have been numerous changes and challenges since then. Understanding the PRC legal system today requires an appreciation for its historical antecedents and contemporary contexts.

I. Historical Foundations for PRC Law

The PRC legal system reflects the influences of historical conditions and changes affecting China over the past several centuries. Particular elements of this include Chinese legal tradition and the law code of the Qing Dynasty (Da Qing Lü Li) that used formal rules and institutions of punitive law (referred to in Chinese as “fa”) to enforce moral principles of Confucian propriety (“li”). This dichotomy between moral education and formal legal punishment continued to influence the development of law under the Republic of China and later in the PRC.

While much of the Qing Code focused on criminal punishments for errant social behavior, many kinds of ordinary social and economic activities were also addressed, including commercial law, contracts, and property.1 As well, the handling of disputes in local practice under the Qing suggested that the guidance of formal legal codes was aimed primarily at expressing ideals of governance while local practice tended to reflect local priorities around relationships and community socialization.2 Features of the Qing Code (and the Ming Code before that), such as severity of punishment; the privileged status of officials; reliance on magistrates as judge, jury, and executioner; and the general lack of attention to formal legal education, were grounded in Confucian norms of hierarchy, propriety, and relational justice.

Confucian foundations of Qing law included notions of “relational justice,” by which the application of law depended on hierarchical relations in society that privileged officials, men, and elders over commoners, women, and youth. Thus, criminal punishment applied not only to conventional crimes such as murder, assault, and theft, but also to behavior that would be classified as civil rather than criminal in many legal systems today, such as breach of agreement, harm to reputation, and interference with commercial relationships As well, the severity of punishment varied according to the relationship between the perpetrator and the victim – punishment was more severe if the act was deemed to violate a Confucian relationship in society.

Traditional perspectives of Qing law also included the notion of “catch-all statutes,” by which officials were granted discretion to implement legal rules. Under this system, officials were indoctrinated in Confucian classics prior to being appointed, and so were presumed to possess the virtue and propriety needed to govern society – whether through law or through other mechanisms of governance. As a result, application of law tended to be flexible and dependent on the discretionary judgment of officials, whose technical training (often acquired on the job or through personal vocation) was considered less important than their Confucian rectitude. This “amateur ideal,” by which government officials were expected to make decisions not based on technical expertise in the subjects of administration but reliant instead on Confucian virtue and propriety, influenced subsequent approaches to law under the Republic of China and later the People's Republic of China.3

During the later years of the Qing Dynasty, the government attempted a range of legal reforms, including establishment in 1904 of the Imperial Law Commission. Under the leadership of Shen Jiaben, the Commission was tasked with compiling information on legal models in other countries – particularly Japan and Germany, and drafting legislation for application in China. This process was one of several initiatives taken by the declining Qing government to utilize foreign knowledge and technology while preserving the essence of Chinese values and identity. The tension over how to adapt foreign techniques to China without jeopardizing China's culture has often been referred to as the debate between ti (preserving China's essence) and yong (utilizing foreign knowledge).4 This dilemma had played a strong role in the various processes of China's opening to the outside world, at the end of the Qing Dynasty, during the Republican Period (1911–49), and under the PRC, particularly in the post-Mao era.

The work of the Qing Imperial Law Commission included preparation of a Company Law (1904), drafting of an Administrative Court Organization Law (1909) and a Criminal Code (1911), and included efforts to complete legislation in the areas of foreign trade, trademarks, civil procedure, and a Civil Code. These efforts represented an important shift away from practices and principles of discretionary rule that had characterized the Confucian model of law and governance in traditional dynastic China. The Civil Code embodied a transition from punishment to rights as the basis for socio-economic relations, while distinguishing these relationships from criminal acts punishable under the Criminal Code was also a significant step away from traditional practices. While the decaying Qing government was far too weak to ensure the implementation of these laws, many of those working on law reform in the late Qing period continued this work under the Republic of China government.

The establishment of the Republic of China (ROC) in 1911 marked the end of traditional dynastic rule and a major watershed in the transition to modern government. Inspired by the philosophy of Dr Sun Yat-sen, the Nationalist Party of China (Guomindang or GMD) attempted to establish a parliamentary system of governance. Under the doctrine of “political tutelage,” the GMD established a dual system of governance by which state institutions such as legislatures, courts, and administrative agencies operated under the guidance of a parallel structure of supervisory GMD organs. This pattern of dual party and state rule was replicated later by the Communist Party of China (CPC). During the period of ROC rule (1911–49), recurring economic and political crises inhibited efforts to establish an effective national government. Nonetheless, during the ten years of relative peace between 1927 and 1937 (the so-called “Nanjing Decade”), the ROC saw an impressive record of law making. Significant efforts included a Civil Code (1929) that combined civil and commercial regulation following the model of Swiss law, a Company Law and Negotiable Instruments Law (1929), a Criminal Code (1935), a Civil Procedure Law (1935), and a Trademark Law (1936).

Several aspects of law under the Republic of China are noteworthy. The transition away from the “relational justice” norms of Qing China toward more objective treatment of legal actors was embodied in the ROC Civil Code. The introduction of the concept of “legal persons” (individuals) and “natural persons” (associations, companies, and the like) was derived from civil law arrangements of continental Europe and made little if any reference to social relationships as the basis for legal status. In a reversal of Qing orthodoxy, the ROC legal system combined objectivity in the treatment of legal actors with subjectivity in the analysis of legal acts. Thus, ROC law included the role of intent as the basis for juristic acts, in contrast to the more rigid provisions of the Qing Code where every act brought legal (and often punitive) consequences based simply on the act and its presumed effects on the social relationships between the actors involved, rather than the subjective intent of the perpetrator. ROC law also entrenched the distinction between public and private law such that obligations such as contracts were considered private even when enforcement was subject to public institutions. Here again, this was a departure from the patterns of the Qing Code, which tended to conflate public and private relationships such that private disputes and offenses were often subject to criminal punishment.

These developments in ROC law remain influential. In Taiwan today, court decisions issued under the Republic of China beginning in 1911 continue to serve as legal precedent. As well, legal institutions and practice under the Republic of China influenced drafting and interpretation of law in the PRC during its early years and during the legal reform of the post-Mao era. Thus, while ROC law applied effectively only in a few cities along the Yangtse River owing to the relative political and military weakness of the government, legal doctrines and ideals continued to serve as a foundation for the legal arrangements that emerged under the PRC and in Taiwan.