The China Venture

First of all, Britain’s predominant international status was dec lining at the beginning of the
20 th century. Secondly, China and Japan are neighbouring countries which share the same
or igin. Also Japan was the nearest modernised and westernised country to China. So it was
convenient for Chinese to go to Japan to study modern Western sciences and knowledge,
including law. As a result, both Chinese legislation and legal theory were substantially
influenced by Japan. Since modern Japanese law was introduced from Germany, Japanese law
was indirectly derived from the Roman law tradition and Chinese law followed the same path.
Thirdly, it was impossible for a country like China, which had a well-established legal system
with more than 4,000 years of history, to introduce common law because of the historical
background and the nature of case law.
In the 1930s the legal modernisation in old China came to its end. By that time, modern
constitutional laws, civil laws, commercial laws, criminal laws, civil procedure laws and
criminal procedure laws were introduced. This also marks the completion of the transition
from the traditional Chinese law system to Roman civil law.
In 1949 the People’s Republic of China (hereafter the PRC) was founded by the Communist
Party of China. The Kuomintang government fled to the province of Taiwan. There, the laws
enacted on the mainland remained implemented. On the mainland however, a new legal
system based on entirely different political, economic and ideological structures was
established.
The legal system in new China was developed by adopting that of the former Soviet Union.
This new system was based on the following principles: in the economic field, public
ownership and a centralised-planned economy; in the political field, people’s democratic
dictatorship and the supremacy of the Party; and in the cultural and ideological field, the
dominance of Marxist theory. 5
In this context the idea arose that the policies of the Party and the State should be more
important than legal rules, and a tendency to neglect or even violate rules and procedures for
the sake of social reform appeared. As a result, law was perceived as something flexible and
manipulatable. To a certain extent, this is still the dominant attitude in contemporary China.
5 See the wording of the first article of the Constitution of the PRC: “The People’s Republic of China is
a socialist state under the people’s democratic dictatorship led by the working class and based on the
alliance of workers and peasants. The socialist system is the basic system of the People’s Republic of
China. Disruption of the socialist state by any organisation or individual is prohibited.”
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