The China Venture

forms a sharp contrast to Western civilisations, where the secular and religious powers and the
legal system co-existed and fostered a tradition of plurality and supremacy of law. The
difficulty in today’s China to accept the supremacy of law may be considered as a
consequence of Traditional Chinese Law.
Criminal law formed the backbone of the traditional legal system. As a result, all types of
litigation were subject to criminal procedures and law was generally viewed as a cruel
instrument of suppression. The concept of private law reflecting the spirit of market
exchange s among equal persons has never appeared in the traditional legal system. This again
forms a sharp contrast to Western legal tradition, which is based to a great extent on private
law. The lack of private law in Traditional Chinese Law and the dominance of criminal law
may to a certain extent serve as an explanation of the generally hostile attitude towards
litigation in contemporary China.
Traditional Chinese Law did not know the formal separation of the judicial branch.
Administrative officials exercised both the power of administration and the power of
adjudication. The typical format of a traditional litigation was an inquisitional process backed
by physical torture to obtain a confession. Therefore, the traditional concept was that justice
cannot be found in law, but from the intelligence and honesty of individual officials. This may
serve as an explanation of the still widespread distrust in the official judicial structure. As a
consequence, justice is often searched for outside the formal procedure in today’s China.
The above features overshadow the generally accepted positive values of Traditional Chinese
Law such as the mixed system of codification and precedents, the emphasis on the educational
function of law, the rich experience in legal practice, and the function of law in stabilising
social harmony. Still, the traditional legal system constituted an insurmountable obstacle in
the historical course of transition towards modernisation. It had to be abolished in order to
transit to a new era of Chinese legal development.
2.2.1.2 Modern Chinese Law
In order to cope with the development of the fledgling modern national economy, the Qing
Dynasty promulgated reforms of the legal system in the early 20 th century. The major laws
enacted at that time were all based on German, French and Japanese law. This modelled the
new Chinese legal system according to civil law tradition. The following reasons caused the
introduction of civil rather than common law.
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