Introspective into the principles of the rule of Law in East Asia

This article takes the legal system as a point of view to observe and review the legal traditions and changes in East Asia and their future trends. The overall understanding of East Asian law in the current academic circles generally includes several representative theories such as the New Chinese Law System, East Asian Common Law and East Asian Law System.  The common legal tradition in East Asia has begun to change in modern times, and the Chinese legal system tends to disintegrate as Western France moves eastward. If we take the elements of the legal system as the standard, we can confirm that East Asian law in the sense of the legal system has not yet been formed, including East Asian common law, East Asian legal system, and new Chinese legal system. But at the same time, it is acknowledged that due to the influence of tradition and regionalization, some similarities and convergences have formed in East Asian regional law today, which may herald a certain possible trend of East Asian law in the future.




1. Current East Asian Law Issues

   East Asia is now one of the focuses of global attention. Discussing the current issues of East Asian law is not only a reflection of the East Asian social law consciousness that pursues subjectivity, but also a kind of pulsation in the current era of the common legal tradition of East Asia-the Chinese legal system. For this reason, the paper we can examine the legal traditions and changes in East Asia as well as its future trend based on the theory of usage, so as to have a grasp of East Asian law as a whole.

   There are roughly several theories in the academic circles about the overall understanding of East Asian law: one is the “New Chinese Legal Family” in Mainland China, or “Chinese Legal Family”. Family Recovery)”, the legal history group of the Chinese University of Political Science and Law put forward this point of view.  There are also official statements related to this, such as the great revival of the Chinese nation, which includes the revival of Chinese culture and Chinese legal culture. The other is the “East Asian Common Law” theory proposed by Professor Cui Zhongku of Seoul (Seoul) University in South Korea.  There is also the “possibility of the establishment of the East-Asian Legal System” proposed by Professor Suzuki Ken of Hokkaido University in Japan. Another argument related to this is the “East-Asian Community” theory, which also includes the issue of East Asian law. There may be other theories, but in any case these are representative. How to understand these theories is the main task of this article. For this reason, we must first determine the scope of East Asian Law.

   East Asia is first of all a geographical concept, and at the same time a cultural community in history, which is called the Confucian cultural circle or the Chinese character cultural circle.  In terms of legal culture, the historical East Asian law as a whole is usually referred to as the “Chinese legal system”, and Japanese scholars also call it the “legal system” or “legal system”. The basic situation of the Chinese legal system will be explained later. For the sake of comparison, we might as well clean up the spatial scope of the current East Asian law referred to in the above statements. The scope of the new Chinese legal system and the revival theory of the Chinese legal system currently mainly refers to mainland China, sometimes including the Greater China region of the two sides of the strait, that is, mainland China, Hong Kong, Macau and Taiwan, and occasionally involving The Greater China region dominated by Han people. The scope of East Asian common law seems to be China, Japan, and South Korea. According to Professor Suzuki Ken (Suzuki Ken), the scope of the East Asian law system refers to China, Taiwan, Japan, and South Korea. In addition, the scope of the East Asian Community also includes Southeast Asia such as Vietnam. Combining the scope of the current East Asian law referred to in the above theories, it roughly covers the geographical and cultural East Asia, but it is not completely consistent with the historically significant East Asian law, that is, the Chinese legal system.

   2. Chinese Legal System: East Asian Legal Tradition

   According to the opinions of Chinese scholars, the Chinese legal system refers to the East Asian legal system developed with Chinese law as its parent law, including ancient Chinese law, Korean law, Japanese law, Ryukyu law, Annan law, Siam law, etc.  If defined in terms of time and space, the period from the Qin and Han Dynasties to the Sui and Tang Dynasties in China is the forming period of the Chinese legal system, and its scope includes the East Asian continent, the Korean Peninsula, the Japanese archipelago, the Ryukyu Islands, and parts of the Indochina Peninsula. The period from the Tang and Song Dynasties to the end of Qing Dynasty in China was a period of continuation and internal change of the Chinese legal system, and its scope still included the above-mentioned regions. However, during this period, the laws inherited from China have gradually become localized or simply localized. Reformed and replaced by law.  However, judging from the elements that constitute the legal system (see the “Constitutional Elements of the Legal System” in Part IV of this article for details), the Chinese legal system is still established.

   The Chinese legal system has some common features. To put it simply, in terms of the historical origins of law, in addition to China itself, the laws of the various countries (regions) of the Chinese legal system have all developed on the basis of inheriting Chinese laws, although their respective traditions and customs are different. But Chinese law is their common parent law. In terms of the manifestation of law, law is mainly manifested as a cultural code, in which “law” and “order” are the backbone. In terms of the concept of law, influenced by Confucianism, the principles of heaven, the law of the country, and the human relationship are interlinked, which manifests itself as a concept of “emotion, reason, and law” that is completely different from any other legal system. In terms of the content and nature of the law, it is mainly criminal law and administrative law. Except for marriage and family law, statutory private law is underdeveloped. In the implementation of the law, the administration and the judiciary at the central level have a slight division of labor, and there is no separation between the administration and the judiciary at the central level, and the administrative officials also handle the judiciary. In judicial trials, criminal trials are conducted in accordance with the law and the procedures are strict; mediation is more important than adjudication in civil disputes. In terms of the spirit and value orientation of law, the law maintains the monarchy and pursues social stability and harmonious interpersonal relationships. In terms of the type of knowledge of law, it is different from Western law, which is expressed as a unique “Law”, which is based on ethics and imperial politics and focuses on the academic interpretation of law. 

   3. The Eastward Movement of Western Law: Modern Changes in East Asian Law

   Starting from the mid-19th century, Western legal culture expanded and spread to East Asia under the support of the military and colonial policies of the great powers. The traditional Chinese legal system began to disintegrate, and East Asian law entered a period of modern transformation. This historical process is called “Western Fa East” or “Western Fa East” in Chinese academic circles. The eastward advance of Western France can be divided into two periods. The first period is the beginning of the modern reform of East Asian law. The Chinese legal system began to disintegrate from its sub-laws. First, Japan implemented the “Meiji Restoration” in 1868, abandoning the legal system and inherent laws originating from China, transplanting Western methods on a large scale, and establishing a modern legal system based on European laws. The consequences and significance of this move can be said to be that the Chinese legal system began to disintegrate from its sub-laws.

   Since the second half of the 19th century, the Korean Peninsula has come into contact with Western European legal thoughts and legal systems (civilizational thoughts) mainly through the introduction of Japan and China. Although the people of the Korean Peninsula have made their own efforts towards the modern legal system, but with Japanese interference and China After the defeat in the Sino-Japanese War of Sino-Japanese War, the Korean Peninsula became a Japanese colony, Ryukyu (now Okinawa region) was also incorporated into Japan, and Taiwan was ceded to Japan by the Qing government. In this way, these original territories of the Chinese legal system became the jurisdiction of the Japanese colonial law transplanted from the Western European law. Similarly, Vietnam in the Indo-China Peninsula also broke away from the Chinese legal system under the occupation of French colonists. By the end of the 19th century, the Chinese legal system in the strict sense was actually the only Chinese law as the parent law.

   As the parent law of the Chinese legal system, Chinese law, although there has been a trend of internal contraction since the Tang and Song Dynasties, has not interrupted its continuity. Until the mid-19th century AD, first Western powers and then Japanese imperialism forced the Qing government to sign a series of unequal treaties, establishing their “consular jurisdiction” in China, and China lost part of its judicial sovereignty since ancient times. , The Chinese legal system was hit hard at home. By the end of the 19th century and the beginning of the 20th century, when the sub-laws of the Chinese legal system had completely disintegrated, the Qing court officially “modified the law” under pressure. Although the “modification of laws and regulations” in the late Qing Dynasty was a study of the West, the actual situation is that from the Qing government promulgated the decree “modification of laws and regulations” in 1900, to 1905, the five ministers were sent abroad to investigate. After repeated searches, Japan was selected as a model country for introducing Western legal culture. Therefore, it can be said that China in the late Qing Dynasty inherited the Japaneseized Western legal culture. In terms of the changes in East Asian law in modern times, this is the second phase of the eastward advance of Western France. With the unfolding of this period, Chinese law, the parent law of the Chinese legal system, collapsed as a whole. So far, the Chinese legal system that was once shared by East Asia no longer exists as an entity, but is treated as a historical legal system with legal cultural tradition and heritage significance.

   4. There is no East Asian law in the sense of legal system.

   Since the eastward advance of Western law caused the disintegration of the Chinese legal system, East Asian law in the sense of the legal system has not yet appeared in East Asia. To clearly understand this point, it is necessary to understand the changes and current situation of the East Asian law since the West Law moved eastward. As mentioned above, the Japanese legal system was modernized after the Meiji Restoration. From the imitation of the European law to the influence of the American law after World War II, the system has been incorporated into the transplanted Western law system. The modernization (civilization) of South Korea’s legal system before and after its independence, from being governed by Japanese modern law to accepting (accepting) European and American law, has also been incorporated into the transplanted Western law system. After independence, North Korea was affected by the socialist legal system of the Soviet model and was incorporated into the socialist legal system. The modernization of China’s legal system from the late Qing Dynasty to the Republic of China has experienced a process from imitating Japan to being influenced by Europe and the United States. Although the “Six Laws” system has been built, it has actually been included in the transplanted western law system. After the founding of the People’s Republic of China, it was influenced by the socialist legal system of the Soviet model. Therefore, the legal system of Mainland China was included in the socialist legal system. After the breakdown of Sino-Soviet relations, mainland China tried to abandon the Soviet-style socialist legal system, but during the “Cultural Revolution” from 1966 to 1976, the legal system in mainland China was destroyed. Since the reform and opening up in 1978, Mainland China has rebuilt a socialist country ruled by law with Chinese characteristics. After so many repetitions and changes, we cannot simply attribute the current Chinese mainland law to the transplanted western law system, nor can it be regarded as the socialist law of the former Soviet Union model. To a certain extent, it is already a new legal system that blends the elements of China, the West, and socialism into one. Vietnam was a French colony before independence, and the national legal system was also included in the western legal system of transplantation. After Vietnam’s independence and reunification, the legal system was once influenced by the Soviet model, and it was included in the socialist legal system. Since the reform and opening up in the 1980s, Vietnam has begun to build a socialist legal system with its own characteristics. The situation is similar to that of the current mainland China.

   From the changes in East Asian law described above, we can see that the laws of East Asian countries were originally transplanted from Europe, America and the former Soviet Union outside East Asia. In the early days of modernization, Japan took the lead in transplanting German law. China followed Japan as a model, South Korea was forced to implement Japanese law, Vietnam was forced to accept French law, and Hong Kong and Macau applied English law and Portuguese law respectively. After the Second World War, Japan, South Korea, and Taiwan began to be affected by American law. North Korea, China, and Vietnam successively adopted the Soviet-style socialist legal system. Hong Kong and Macau continued to apply British and Portuguese laws. If we proceed from the grand tradition of legal culture, Europe, America and the former Soviet Union can be collectively referred to as the West. In this way, we can say that the laws of modern East Asian countries are transplanted to the West. If we take the legal system as the standard and take into account both the ideology and the nature of the law, then the laws of the East Asian countries are the same with some differences. They belong to the European legal system, the socialist legal system, and the common law system. Judging from the status quo, the elements of the laws of East Asian countries are more complex, mixing elements of Roman Germanic (European), Anglo-American, socialist, and East Asian countries themselves.

   Starting from the current reality of East Asian law, it can be said that similarities and differences coexist. With the exception of Hong Kong, China, East Asian laws are all codified statutory laws. This is a common legal phenomenon in East Asia. But each country and region is not inconsistent in the legal system, legislative and judicial system, which is again very different between them. Although in terms of the concept of law, the structure of the law, the origin of the law, the doctrine of the law, and the legal profession, East Asian countries have been jointly influenced by European law and Japanese law, resulting in many similar aspects in the laws of East Asian countries. At the same time there are still many differences. In addition, the East Asian countries have been deeply influenced by Confucian culture in history and belong to the Chinese legal system, but as mentioned earlier, these have collapsed in modern times. Although the influence of legal cultural traditions is still there, it should be said that they are of different depths and differences. Especially from the current fundamental laws/constitutions of the East Asian countries, the values ​​and goals of the laws of each country are very different. This difference can even be said between the countries with the socialist system and the countries with the capitalist system. It is principled. In the foreseeable future, this difference may not disappear. From this point of view, the “identity” in East Asian law is more formal, historical and superficial, while the “difference” is substantive and realistic. Therefore, scholars think there is no East Asian law in the sense of the legal system, including East Asian common law, East Asian legal system, and New Chinese legal system actually do not exist.

 We know that the legal system is a type theory of law. Regarding the legal system, although there will not be a unified concept, there is still a relative consensus. It is generally believed that the legal system refers to a legal system composed of laws of two or more regions with certain common traditions and important characteristics, and is also called a family of laws. Based on the theories of the legal system, the elements of the same legal system are as follows:

(1) The legal system is generally composed of laws of two countries or more than two regions;

(2) Countries or regions within the legal system The laws of law have a common historical source, where the law of origin is the parent law, and the law of the spread is the child law;

(3) the basic concepts of the law are the same or similar;

(4) the types of law sources and their interpretation methods are the same or similar;

( 5) The manifestation of law is the same or similar to the legal structure;

(6) The dominant legal method is the same or similar;

(7) The fundamental and characteristic legal system is the same or similar;

(8) Legal education and legal profession are same or similar;

(9) Same or similar ideology. 

Leave a Reply

Your email address will not be published. Required fields are marked *