Republican China Legal System (1912-1949)

The Republican Legal Framework

The legal system of Republican China (1912-1949) represented the first sustained effort to construct a modern, codified legal order in Chinese history. Following the abdication of the Qing dynasty in 1912, the Republic of China (ROC) undertook the systematic reception of Western — particularly German and Japanese — civil law models, while maintaining elements of Chinese legal tradition.

The constitutional framework of the Republic was shaped by a series of constitutional documents: the Provisional Constitution of the Republic of China (1912), the Constitutional Compact (1914), the Constitution of the Republic of China (1923, the “Cao Kun Constitution”), the Provisional Constitution of the Political Tutelage Period (1931), and finally the Constitution of the Republic of China (1947). The 1947 Constitution, which remains in force in Taiwan, established a five-power constitutional structure adding the Examination Yuan and the Control Yuan to the traditional three branches of government.

The Six Codes

The centrepiece of Republican legal reform was the Six Codes (Liu Fa Quan Shu), a comprehensive codification of law modelled on the Japanese Six Codes system, which itself was derived from the continental European civil law tradition. The Six Codes comprised:

The Civil Code (Minfa), promulgated between 1929 and 1931 in five books (General Principles, Obligations, Rights over Things, Family, and Succession). The Civil Code was heavily influenced by the German Civil Code (BGB) and the Japanese Civil Code, adopting the pandectist structure and the general principles — obligation, property, family, and succession — of the German tradition. The Code also incorporated elements of Chinese custom, particularly in family law, where provisions on the family head system and ancestral property reflected Chinese tradition.

The Code of Civil Procedure (Minshi Susong Fa), first promulgated in 1930 and revised in 1935, established the procedural framework for civil litigation. The Code adopted the principle of party control, the collegiate bench system for appellate courts, and the three-instance court structure.

The Criminal Code (Xingfa), promulgated in 1928 and comprehensively revised in 1935, replaced the Qing dynasty’s Great Qing Legal Code. The 1935 Criminal Code adopted the German-inspired tripartite crime structure, the principle of legality, and a system of punishments including the death penalty, life imprisonment, fixed-term imprisonment, and fines.

The Code of Criminal Procedure (Xingshi Susong Fa), promulgated in 1928 and revised in 1935, established the procedural framework for criminal litigation. The Code adopted the inquisitorial model with the judge playing an active role in evidence investigation.

The Administrative Code began as separate administrative laws, culminating in the Administrative Procedure Law (1933) and the Administrative Litigation Law (1933).

The Commercial Code was developed through separate commercial statutes — the Company Law (1929), the Negotiable Instruments Law (1929), the Maritime Law (1929), and the Insurance Law (1929) — rather than a unified commercial code.

Judicial Reforms

The Republican period saw the establishment of a modern court system. The Organic Law of the Courts (Fayuan Zuzhi Fa), promulgated in 1932, established a four-level court hierarchy: the Supreme Court (apex), the High Courts (provincial level), the District Courts (prefectural level), and the Summary Courts (county level). The Organic Law abolished the Qing dynasty’s administrative-judicial integration and separated judicial from administrative functions.

The Supreme Court of the Republic of China (Zhonghua Minguo Zuigao Fayuan), established in Nanjing in 1928, exercised appellate jurisdiction and issued judicial interpretations that guided the application of the Six Codes. The Supreme Court’s interpretations, compiled in the Supreme Court Interpretations, occupied a quasi-binding role in the development of Republican law.

Judicial independence was formally guaranteed by the 1947 Constitution (Article 80), which provided that judges exercise judicial power independently and are bound only by law. In practice, judicial independence was compromised by the exigencies of civil war (1927-1949), the Japanese invasion (1937-1945), and the Kuomintang’s one-party rule and use of military courts for political offences.

Legal Profession

The legal profession in Republican China developed rapidly. The Law on Lawyers (Lüshi Fa), promulgated in 1941, established the qualifications, rights, and duties of lawyers. Lawyers were required to hold a law degree from a recognised university, to have completed a period of practical training, to pass the bar examination, and to be registered with the local bar association.

The bar associations, established at the district and provincial levels, exercised self-regulatory authority over the profession. The Chinese Bar Association (Zhonghua Minguo Lüshi Gonghui), founded in 1948, was the national professional organisation.

Republican China also saw the establishment of modern legal education. Law faculties were established at Peking University, Tsinghua University, Chaoyang University, Soochow University (which offered a comparative law faculty teaching in English), and other leading institutions. Legal education followed the German-Japanese model, with emphasis on doctrinal study of the codes.

Judicial Yuan

The Judicial Yuan (Sifa Yuan), established under the 1947 Constitution, was one of the five Yuan of the ROC government. The Judicial Yuan exercised authority over the judicial system, including the Supreme Court, the Administrative Court, the Commission on the Discipline of Public Functionaries, and the Council of Grand Justices.

The Council of Grand Justices (Da Faguan Huiyi), established under the Judicial Yuan, was the constitutional court, exercising the power of constitutional interpretation and the review of statutes and regulations for constitutional compliance. The Grand Justices were appointed by the President with the consent of the Control Yuan. The Council of Grand Justices decided constitutional cases by petition, and its interpretations were binding on all state organs.

Extraterritoriality Abolition (1943)

The abolition of extraterritoriality was one of the ROC government’s most significant legal achievements. Extraterritoriality — the immunity of foreign nationals from Chinese jurisdiction — had been imposed by the unequal treaties of the 19th century, granting British, American, French, Japanese, and other foreign nationals the right to be tried by their own consular courts rather than Chinese courts.

The ROC government made the abolition of extraterritoriality a central objective of its foreign policy. Progress was made through the Washington Conference (1921-1922), which established a commission to investigate the Chinese judicial system, and through the ROC’s systematic modernisation of its legal system, which provided the substantive justification for treaty revision.

The extraterritoriality treaties were finally abolished in 1943 during World War II. The United States and the United Kingdom signed new treaties with the ROC in January 1943, renouncing extraterritorial rights. Other states followed. The abolition was a significant achievement for Chinese sovereignty and a vindication of the ROC’s legal modernisation programme.

Communist Base Area Legal Experiments

While the ROC government constructed the Six Codes system, the Chinese Communist Party was developing alternative legal institutions in its base areas. The Jiangxi Soviet (1931-1934), the Shaan-Gan-Ning Border Region (1937-1947), and other Communist base areas developed legal systems that rejected the Six Codes as bourgeois and oppressive.

Communist base area law emphasised mass justice (qunzhong sifa), mediation, and the subordination of law to revolutionary policy. The Ma Xiwu adjudication method, named after the President of the Shaan-Gan-Ning Border Region High Court, emphasised dispute resolution through investigation, mass consultation, and mediation rather than formal adjudication.

The base area legal experiments included: the Marriage Regulations (1939, Shaan-Gan-Ning), which abolished arranged marriage, established free choice of marriage, and prohibited concubinage and bride price; the Land Regulations (1947), which abolished landlord ownership and distributed land to peasants; and the Criminal Regulations, which used “counter-revolutionary crime” as the principal criminal category.

Transition to PRC Law

The Communist victory in 1949 led to the complete abolition of the Six Codes by the Common Programme of the Chinese People’s Political Consultative Conference (1949), which declared the Kuomintang’s “reactionary laws and regulations” null and void. The abolition created a legal vacuum that was filled by Party policy, administrative decrees, and the Soviet-inspired legal system of the early PRC.

The Republican legal system, however, left a lasting legacy. The Six Codes continued in force in Taiwan and influenced the development of Chinese legal systems in Hong Kong, Macau, and the mainland. The PRC’s 1979 Criminal Code and 1986 General Principles of Civil Law drew indirectly on the Republican codification tradition, and many Republican-era legal scholars trained in the Six Codes system staffed the post-Mao legal reconstruction.

Conclusion

The Republican China legal system (1912-1949) represented China’s first comprehensive adoption of Western civil law codification. The Six Codes, the modern court system, the Judicial Yuan and its Council of Grand Justices, and the legal profession established the institutional foundations of modern Chinese law. The extraterritoriality abolition restored judicial sovereignty. The Communist base area legal experiments provided an alternative legal tradition emphasising mass justice and Party supremacy. The abolition of the Six Codes in 1949 did not erase the Republican legal legacy, which continued to influence the development of law in all Chinese jurisdictions.