Modern Chinese Legal History
Modern Chinese legal history is characterised by the reception of Western legal models, their adaptation to Chinese conditions, and the tension between imported legal forms and indigenous traditions of rule by law. From the late Qing reforms through the Republican period to the construction of the socialist legal system and the post-Mao codification, Chinese law has undergone several fundamental transformations, each redefining the relationship between law, the state, and society.
Late Qing Legal Reforms (1902–1911)
The late Qing legal reforms, initiated after the Boxer Rebellion and the humiliation of foreign extraterritoriality, represented the first systematic attempt to modernise Chinese law on Western models. The Qing government, facing internal rebellion, foreign pressure, and the demand for the abolition of extraterritoriality (the right of foreign powers to try their nationals in China under their own laws), appointed Wu Tingfang and Shen Jiaben in 1902 as commissioners to reform the legal system. Their mandate was comprehensive: to revise the Qing Code, draft new codes, establish modern courts, and create a judicial examination system.
Shen Jiaben (1840–1913), the central figure of the late Qing legal reform, undertook the monumental task of translating and studying Western legal codes to serve as models for Chinese legislation. The reform commission translated Japanese, German, French, English, and Russian codes and legal texts, with Japanese law serving as the primary conduit for German legal influence. The decision to adopt the German legal model, mediated through the Japanese reception of German law in the Meiji period, reflected the judgment that the German legal system — with its systematic codification, Romanist foundations, and civil-law methodology — was best suited to Chinese conditions.
The reforms produced the first modern Chinese legal codes, most of which were promulgated after the Qing collapse and implemented by the Republican government. The Draft Criminal Code (Xinglü Cao’an) of 1907 abolished the traditional “five punishments” (mutilation, tattooing, and other corporal penalties) and established a modern penal system based on imprisonment, fines, and deprivation of rights. The Draft Commercial Code (Shanglü Cao’an) of 1908 introduced Western commercial law concepts, including corporate law, negotiable instruments, and maritime law. The Draft Civil Code (Minlü Cao’an) of 1911, though never enacted by the Qing, was the first Chinese attempt at a comprehensive civil codification.
The reform of judicial institutions was equally significant. The Law on Court Organisation (Fayuan Bianzhi Fa) of 1909 established a four-tier court system: local courts (difang shenpanting), district courts (difang fayuan), high courts (gaodeng fayuan), and the Supreme Court (da li yuan). The reforms introduced the principle of judicial independence, the separation of judicial and administrative functions (previously the local magistrate was both administrator and judge), the requirement of professional legal education for judges, a system of judicial examinations, and the institution of the procuracy (jiancha ting). By 1911, over 3,000 new-style courts had been established, and a modern judicial profession was beginning to emerge.
The Republican Period: The Six Codes
The Republic of China (1912–1949) inherited the late Qing reform projects and completed the first comprehensive Western-style legal codification in Chinese history. The Beiyang government (1912–1928), though politically fragmented, continued the work of codification, promulgating the Criminal Code (1912, substantially the late Qing draft), the Regulation on Civil Procedure (1912), and continuing the use of the Qing Code’s civil provisions as supplemented by judicial interpretation.
The Nationalist government under the Kuomintang (KMT), after establishing its capital in Nanjing in 1927, undertook the most systematic legislative programme in Chinese history to that point. The result was the Six Codes of the Republic of China (Zhonghua Minguo Liufa Quanshu), a comprehensive codification modelled on the German and Japanese legal systems:
The Civil Code (Minfa), promulgated in five books between 1929 and 1931, was based on the German Bürgerliches Gesetzbuch (BGB) in its Pandectist structure: General Principles (book 1), Obligations (book 2), Property Rights (book 3), Family (book 4), and Succession (book 5). The Family and Succession books, however, incorporated substantial Chinese traditional elements, preserving patriarchal authority and the patrilineal family structure while introducing modern principles such as the requirement of mutual consent for marriage, the right of divorce, and the legal capacity of married women.
The Criminal Code (Xingfa) of 1935 adopted the General Part / Special Part structure of German criminal law, incorporating the principle of legality (nullum crimen sine lege — Article 1: “No act shall be punished unless expressly provided by law at the time of its commission”), the classification of crimes into felonies and misdemeanours, and a modern system of punishments including death, life imprisonment, fixed-term imprisonment, fines, and deprivation of civil rights. The Code of Criminal Procedure (Xingshi Susong Fa) of 1935 established the inquisitorial-adversarial hybrid procedure characteristic of continental European systems.
The Code of Civil Procedure (Minshi Susong Fa) of 1935, the Administrative Code (Xingzheng Fa) — which was a compilation of existing administrative regulations rather than a comprehensive codification — and the Commercial Code (Shangfa), supplemented by separate company, negotiable instruments, insurance, and maritime laws, completed the Six Codes.
A distinctive feature of Republican legal development was the judicial interpretation system of the Judicial Yuan (Sifa Yuan). The Judicial Yuan, established as one of the five branches of government under Sun Yat-sen’s Five-Power Constitution, exercised the power of uniform interpretation of statutes through its Council of Grand Justices. The Grand Justices issued authoritative interpretations (jieshi) that functioned as binding precedents, adapting the codes to changing social conditions and filling gaps in the legislative framework. Between 1929 and 1949, the Judicial Yuan issued over 4,000 interpretations, creating a substantial body of judicial doctrine.
Revolutionary Legal Development in Communist-Controlled Areas
Parallel to the Nationalist legal system, the Chinese Communist Party (CCP) developed its own legal institutions in the areas under its control. The Chinese Soviet Republic (Zhonghua Suweiai Gongheguo), established in Jiangxi province in 1931, enacted the Marriage Law of 1931, which abolished the traditional feudal marriage system, prohibited arranged marriages, concubinage, and child brides, established free marriage based on mutual consent, and recognised the right of divorce. The Land Law of 1931 confiscated landlord land and redistributed it to poor peasants and the Red Army.
The Yan’an period (1935–1947) saw the development of a distinctive “mass line” approach to law that emphasised popular participation, mediation, and substantive justice over formal procedure. The “rule of law” vs. “rule by man” debate in Yan’an (1943–1944) pitted the “legalists” — who advocated for codified laws, predictable procedures, and judicial independence — against the “mass line” advocates, who argued that law must serve the revolutionary class struggle and that formal legality was a bourgeois fetter on revolutionary justice. The latter view predominated, establishing the principle that “the Party commands the gun and the law” (dang zhihui qiang he fa).
The Yan’an system of justice emphasised mediation (tiaojie) as the primary method of dispute resolution, with formal adjudication as a last resort. The “Ma Xiwu adjudication method” — named after the president of the Supreme Court of the Shaan-Gan-Ning Border Region, who went into villages to hear cases on the spot, investigated facts directly, consulted with local Party cadres, and educated the masses through adjudication — exemplified the mass-line approach to justice. The Ma Xiwu method rejected the formal legal procedures of the KMT codes in favour of substantive justice, popular participation, and the integration of adjudication with political education.
The Maoist Period
The establishment of the People’s Republic of China on 1 October 1949 initiated a radical break with the legal past. The Common Programme of the Chinese People’s Political Consultative Conference, adopted on 29 September 1949 as the provisional constitution, abolished the KMT Six Codes (the “Kuomintang’s reactionary law” was formally abrogated by the Directive on the Abolition of the Six Codes and the Establishment of Judicial Principles in February 1949). The newly established Supreme People’s Court instructed lower courts to be guided by “policies, laws, and decrees of the new democracy” and to apply the “principles of the Common Programme and the policies and laws of the people’s government.”
The 1954 Constitution of the People’s Republic of China, adopted on 20 September 1954, established the basic structure of the state and defined the legal system: the National People’s Congress as the highest organ of state power, the State Council as the executive, the Supreme People’s Court as the highest judicial organ, and the Supreme People’s Procuratorate as the legal supervisory organ. The Constitution declared that “all citizens are equal before the law” (Article 85) and guaranteed fundamental rights including freedom of speech, press, assembly, association, and religion.
The period 1954–1957 saw the development of the first socialist legal institutions, including the first criminal procedure legislation, the first regulations on lawyers and notaries, and the establishment of a formal court hierarchy. The “Hundred Flowers” campaign of 1956–1957 briefly encouraged legal scholars to criticise the Party’s influence over the judiciary and advocate for legal professionalism. However, the Anti-Rightist Campaign of 1957 reversed these developments: legal professionals who had advocated for “rule of law” were purged, law schools were closed, the procuracy was subordinated to the Party, and the legal system was disestablished.
The Cultural Revolution (1966–1976) brought the complete destruction of the legal system. The procuratorate was abolished in 1968. Courts were taken over by revolutionary committees composed of Party cadres, military representatives, and “mass representatives.” Formal legal procedures were replaced by “mass criticism” and “struggle sessions.” The Beijing Law School of Peking University was closed. For a decade, China had virtually no functioning legal institutions: no courts operating under formal law, no procuracy, no legal profession, no law schools, and no published legal codes. The only law was the shifting policy directives of the Party, enforced through extralegal institutions including the Public Security Bureau and the revolutionary committees.
Post-Mao Reconstruction: Building a Socialist Legal System
The death of Mao Zedong in 1976 and the rise of Deng Xiaoping initiated the most dramatic legal reconstruction in Chinese history. The Third Plenum of the Eleventh Central Committee of the CCP in December 1978 declared the shift from class struggle to economic development and the establishment of a “socialist legal system” as national priorities. Deng’s formulation was that “there must be laws to follow, the laws must be observed, their enforcement must be strict, and violations must be prosecuted” (you fa ke yi, you fa bi yi, zhi fa bi yan, wei fa bi jiu).
The 1979 Criminal Law and Criminal Procedure Law, adopted at the Second Session of the Fifth National People’s Congress, were the first modern codes of the PRC. The Criminal Law, containing 192 articles, established the principle of legality, defined crimes and punishments, and provided the legal foundation for the post-Mao criminal justice system. The Criminal Procedure Law, the first comprehensive code of criminal procedure in PRC history, established procedures for investigation, prosecution, trial, and appeal. Both laws came into effect on 1 January 1980.
The 1982 Constitution, adopted on 4 December 1982, replaced the 1975 and 1978 constitutions (the 1975 Constitution had codified the Cultural Revolution’s destruction of legal institutions, while the 1978 Constitution was a transitional document). The 1982 Constitution restored the procuratorate (abolished in 1968), reaffirmed the principle that “all citizens are equal before the law” (Article 33), and established the basic structure of the legal system that continues to the present. The Constitution was amended in 1988 (legalising private enterprise and land use rights), 1993 (establishing the “socialist market economy”), 1999 (the “rule of law” amendment adding “governing the country according to law” to Article 5), 2004 (protecting private property and adding “human rights” to Article 33), and 2018 (abolishing presidential term limits).
The development of a “socialist legal system with Chinese characteristics” after the 1992 announcement of the socialist market economy accelerated codification across all areas of law. The 1999 Contract Law, the 2001 Marriage Law (revised), the 2005 Company Law, the 2007 Property Law, the 2007 Labour Contract Law, the 2010 Tort Liability Law, and the culmination of the codification process in the 2020 Civil Code of the People’s Republic of China — the first comprehensive civil code of the PRC, containing 1,260 articles in seven books — completed the legislative framework for the market economy.
The 2020 Civil Code, adopted on 28 May 2020 by the Third Session of the Thirteenth National People’s Congress and effective from 1 January 2021, represents the codification of decades of civil legislation. Its seven books — General Principles, Property, Contracts, Personality Rights, Marriage and Family, Succession, and Tort Liability — consolidate and systematise the fragmented civil law of the post-Mao period. The inclusion of a separate book on Personality Rights (including rights to name,肖像, reputation, honour, privacy, and personal information) was a particularly distinctive feature. The Civil Code represents the culmination of the post-Mao legal reconstruction and the achievement of the “socialist legal system with Chinese characteristics” declared complete by the CCP Central Committee in 2011.
The challenge of the post-Mao period has been the relationship between the formal legal system and the Party’s political authority. The principle of “the Party commands the law” persists through the Party’s political-legal committees (zhengfawei) at each level of government, which coordinate the work of the courts, procuracy, and public security organs and exercise authority over politically sensitive cases. The tension between the formal autonomy of legal institutions established under the rule-of-law principle and the continuing political subordination of law to Party authority remains the central unresolved question of Chinese legal development.