Inside China's Legal System

ISBN-13: 9780857094605 / Angielski / Twarda / 2013 / 390 str.

Chang Wang; Nathan Madson

Opis

China's legal system is vast and complex, and robust scholarship on the subject is difficult to obtain. Inside China's Legal System provides readers with a comprehensive look at the system including how it works in practice, theoretical and historical underpinnings, and how it might evolve. The first section of the book explains the Communist Party's utilitarian approach to law: rule by law. The second section discusses Confucian and Legalist views on morality, law and punishment, and the influence such traditional Chinese thinking has on contemporary Chinese law. The third section focuses on the roles of key players (including judges, prosecutors, lawyers, and legal academics) in the Chinese legal system. The fourth section offers Chinese legal case studies in civil, criminal, administrative, and international law. The book concludes with a comparison of China's fundamental governing and legal principles with those of the United States, in such areas as checks and balances, separation of powers, and due process.

• Uses extensive legal materials and historical documents generally unavailable to Western based academics
• Gives insider knowledge, including first-hand experience teaching law, and close involvement with judges, attorneys, and law professors in China
• Analyses legal issues from historical and cultural perspectives holistically

Spis treści

• Dedication
• List of abbreviations
• Acknowledgments
• Foreword 1
• Foreword 2
• About the authors
• Introduction: justice with a Chinese face
  • A 'socialist system of laws with Chinese characteristics'
  • Historical reforms in Chinese law
  • Comparing Chinese and American legal systems
  • American perspectives on Chinese law
  • Human rights commentary and the Chinese response
  • Questions raised by the Chinese legal system
  • Positive developments
  • This book
• Part I: Historical views
  • 1: Philosophical underpinnings of the Chinese legal system
    • Abstract
    • Confucianism
    • Confucius's view of law
    • Confucius's view of history
    • Critical thinking on Confucius
    • The resurgence of Confucianism in China
    • Mencius
    • Legalism
    • Qin and the first emperor
    • Hidden rules and law in imperial China
    • Law versus morality
    • Penal codes
    • No lawyers or legal profession
  • 2: China and the Western influence
    • Abstract
    • '100 years of humiliation'
    • Unequal treaties between 1842 and 1949 and extraterritoriality
    • Nationalism
    • The Foreign Affairs Movement and the ti-yong dichotomy
    • The failed '100 days reform' in 1898 and late Qing reforms
    • Republic of China
    • 'The People's Republic'
    • Anti-Rightist Movement, Great Leap Forward and Great Famine
    • Cultural Revolution
    • The trial of the Gang of Four
    • The case of Yu Luoke
    • The case of Zhang Zhixin
    • Tiananmen
• Part II: The players
  • 3: The judiciary
    • Abstract
    • The party and the judiciary
    • Non-independent judiciary
    • Structure
    • Supreme People's Court
    • Are fayuan courts?
    • 'Judges'
    • Judicial examination
    • Judicial corruption
    • Procuratorates
    • Access to court information
  • 4: The police
    • Abstract
    • Definitions
    • Overview
    • Governing law
    • Re-education through labor
    • Maintaining stability or weiwen
    • 'Guobao' and 'drinking tea'
    • Internet police
    • Detention, torture and extrajudicial killings
    • Yang Jia case
    • Wen Qiang case
    • Wang Lijun case
  • 5: The lawyers
    • Abstract
    • Lawyers as a 'bad element'
    • History of the legal profession in China
    • Lawyers in the PRC
    • Legal education
    • Regulating lawyers
    • New rules for the punishment of lawyers
    • 'They came for lawyers'
    • Lawyers, law professors and troublemakers: Zhang Sizhi, Jiang Ping, Pu Zhiqiang
    • Li Zhuang case
• Part III: Case studies
  • 6: Civil laws and cases
    • Abstract
    • General principles of civil law
    • Selected civil laws
    • Commercial law
    • Civil procedure
    • Representative cases
  • 7: Criminal laws and criminal cases
    • Abstract
    • Criminal law
    • Criminal procedure
    • Criminal Procedure Law amendments
    • The case of Liu Xiaobo
    • Representative cases in criminal law
    • The CPC and criminal law
  • 8: The curious case of Ai Weiwei and administrative law
    • Abstract
    • Timeline
    • Procedure
    • The 'tax' case
    • Administrative law in China
    • Petition
• Part IV: Conclusion
  • Afterword
    • Is constitutionalism incommensurable with Chinese socialism?
    • Important updates
    • Conclusion
• Appendix 1: Constitution of the People's Republic of China
  • Preamble
  • Chapter I: General Principles
  • Chapter II: The Fundamental Rights and Duties of Citizens
  • Chapter III: The Structure of the State
  • Chapter IV: The National Flag, the National Anthem, the National Emblem and the Capital
• Appendix 2: The socialist legal system with Chinese characteristics
  • Foreword
  • I Establishment of the socialist system of laws with Chinese characteristics
  • II Composition of the socialist system of laws with Chinese characteristics
  • III Features of the socialist system of laws with Chinese characteristics
  • IV Improvement of the socialist system of laws with Chinese characteristics
  • Concluding remarks
• Appendix 3: Charter '08
  • I Foreword
  • II Our fundamental principles
  • III What we advocate
• Selected readings and resources for further research in Chinese law and history
• Index

O autorze

Chang Wang is associate professor of law at College of Comparative Law, China University of Political Science and Law in Beijing, as well as Chief Research and Academic Officer for China for Thomson Reuters. He also serves as adjunct professor of law at the University of Minnesota Law School and William Mitchell College of Law in the United States, guest professor of law at the University of Lucerne Faculty of Law in Switzerland, and Guest Lecturer on American Law and Culture at Beijing Royal School in China. Chang holds a B.F.A. in Filmmaking from Beijing Film Academy, an M.A. in Comparative Literature and Comparative Cultural Studies from Peking (Beijing) University, an M.A. in American Art History from University of Illinois at Urbana-Champaign, and a Juris Doctor from the University of Minnesota Law School. Chang has been admitted into law practice in Minnesota, the District of Columbia, and federal courts. He has published a book on comparative cultural studies and more than 100 academic articles on law, critical theory, and art history. Nathan H. Madson is an attorney living in St. Paul, Minnesota. He has an extensive background in international and domestic human rights, working and volunteering with such organizations as the Queer Legal Aid Society, The Center for Victims of Torture, The Advocates for Human Rights, OutFront Minnesota, and the U.S. Committee for Refugees and Immigrants. Nathan has guest lectured on Chinese law and Chinese ethnic minorities at the University of Minnesota Law School and the William Mitchell College of Law, USA. In addition, his research includes non-normative methods of legal and public policy reform. Nathan received his B.A. in International Affairs from The George Washington University and his Juris Doctor from the University of Minnesota Law School, USA. He has been admitted into law practice in Minnesota.