The Continuing Progress of the Modern Legal Transition During the Period of the Republic of China

Abstract

By the joint efforts of the legal elites like Shen Jiaben during the late Qing Dynasty, the new legal system was set up by modeling on the continental legal systems, meanwhile, the out-of-date feudal legal system characterized by “Wu Xing” (the five forms of punishments used in later periods: “Chi”: beating with light sticks; “Zhang”: beating with heavy sticks; “Tu”: imprisonment; “Liu”: life exile; and “Si”: death penalty), “Bi Fu” (legal analogy) and the non-separation of justice and administration had been abolished, and the ancient Chinese legal tradition like the integration of “Li” (rites) and law, “Zhu Fa He Ti” (the integration of various laws), “Zhong Xing Qing Min” (stressing the criminal law and neglecting the civil law) was changed. In addition, the legal principles and systems which had symbolized the modern western legal civilization including “Zui Xing Fa Ding” (a legally prescribed punishment for a specified crime), humanitarian punishment and judicial independence were introduced, which had initiated an important step in the modernization of Chinese legal system. But the modern transition of Chinese law had not been, and in fact, could not have been completed by the law revision during the late Qing Dynasty, because the special social environment, the upheaval political situation both home and abroad, and the resistance of the conservative forces in the Qing imperial court itself had made the law revision during the late Qing Dynasty more difficult, hesitated and irresolute. So some of the legal principles, such as people’s sovereignty, “Fa Zhi” (the ruling of law), equality before the law, the holiness of the private rights, the presumption of innocence, and the system of the protection of human rights had not been made and put into practice. Besides, in the newly revised laws, there were still not only many backward feudal contents, but also the problem of putting the civilized elements of the introduced western legal systems into legal practice. All these had required the succeeding Republic of China to go forward by following the road of modern Chinese legal transition opened up by the law revision during the late Qing Dynasty.