Undang-undang China

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Undang-undang China adalah salah satu tradisi undang-undang tertua di dunia. Pada abad ke-20 dan ke-21, undang-undang di China telah menjadi campuran kompleks kecapaian China tradisional China dan pengaruh Barat.

Untuk kebanyakn sejarah China, sistem hukumnya telah diasaskan falsafah Konfucian kawalan sosial melalui pendidikan akhlak, dan juga emfasis Legalist pada undang-undang dikod dan criminal sanction. Berikutnya Revolusi 1911, Republik China menggunakan kod legal gaya Barat dalam tradisi hukum sivil (khususnya pengaruh Jerman). Pertubuhan Republik Rakyat China pada 1949 membawa dengannya ;ebih sistem pengaruh Soviet hukum sosialis. Meskipun, tradisi yang terdahulu dari sejarah China telah mengekal pengaruh mereka, walaupun ke hari ini.

Undang-undang di Republik Rakyat China kini mengalami pembaharuan beransur-ansur, dan juga banyak elemen dalam dan luar negara mengemfasiskan keperluan untuk memperkuatkan kedaulatan undang-undang di China, dan perdagangan antarabangsa dan globalisasi mendorong penukarang dalam pelbagai bidang undang-undang dalam negeri China.

Tradisi hukum China[sunting | sunting sumber]

Gagasan undang-undang[sunting | sunting sumber]

Perkataan untuk undang-undang dalam bahasa Cina klasik ialah . Sifat Cina untuk menandakan makna "adil", "lurus" dan "keadilan", berasal dari airnya radical. Ia juga menjalankan segi "piawai, ukuran, dan model".[1] Derk Bodde and Clarence Morris held that the concept of had an association with yi (義: "social rightness").[2] Yan Fu, dalam terjemahan bahasa Cinanya dari De l'esprit des lois Montesquieu diterbitkan pada 1913, memberi amaran kepada para pembacanya tentang perbezaan di antara China dan undang-undang Barat: "Perkataan 'undang-undnag' dalam bahasa-bahasa Barat mempunyai empat terjemahan berlainan i "rites", "decorum"), (法: "undang-undang manusia") dan zhì (制: "kawalan").[3]

Sebuah istilah yang mendahului was xíng (刑), yang terdahulunya mungkin merujukkan pada pancungan. Xíng kemudian berkembang menjadi suatu istilah umum untuk undang-undang yang berkaitan dengan hukuman jenayah. Sejarah awal Shang Shu merakam bentuk-bentuk terawal "lima hukuman": bercacah, pencacatan, pengembirian, pengudungan, dan kematian. Sekali undang-undang ditulis menjadi wujud, makna xíng telah dipanjangkan untuk memasuki bukan hanya hukuman tetapi juga mana-manan larangan negara yang pelanggarannya akan menyebabkan dalam hukuman. Pada zaman moden, xíng dapat difahami dari segi hukum banduan atau hukum jenayah. Suatu contoh kegunaan klasik xíng adalah xíng bu (刑部: "Jabatan Hukuman") untuk jabatan undang-undang atau keadilan di kemaharajaan China.

Dua sekolah falsafah Cina utama dibincang di bawah, Konfusianisme dan Legalism, secara kuat mempengaruhi gagasan undang-undang di China. Secara ringkas, di bawah Konfusianisme, negara seharusnya mengetuai rakyat dengan sifat baik dan oleh itu mencipta suatu erti kemaluan yang akan mencegah kelakuan buruk. Di bawah Legalism, undang-undang seharusnya di awam mengisytiharkan piawai kelakuan dibelakangi oleh pemaksaan negara. Ketegangan di antara dua sistem ini yang Konfusianisme tergantung pada tradisi yang membuat pemimpin ketua rumah tangga seluruh China sementara Legalism membuat undang-undang piawai yang maharaja jua terpaksa mematuh. Faktor umum adalah bahawa kedua-dua yang tersebut ke peringkat berlainan suatu tanggapan paternalistik negara, yang mengetahui lebih daripada rakyatnya dan membuat undnag-undang untuk melindungi mereka. Konsep ini berterusan di sepanjang zaman imperial, ke dalam zaman republik, dan masih dapat dilihat bertindak hari ini.

Tidak seperti tamadun utama lain di mana undang-undang tulisan dijalankan dengan mulia dan sering dihargai pada asal-usul ramalan, undang-undang di China awal dilihat dari segi sekular asli dan pada kemunculan permulaannya disambut dengan permusuhan oleh ahli fikir Confucian sebagai penandaan kemerosotan akhlak serius, suatu pelanggaran keakhlakan manusia, dan juga suatu gangguan urutan kosmik keseluruhannya.[4] Mengikut sejarah, kesedaran orang dan penerimaan kebiasaan etik telah dibentuk lebih lanjut oleh pengaruh merebak adat dan kegunaan hak milik dan dengan menanam petunjuk akhlak daripada dengan mana-mana sistem dijadikan undang-undang secara rasmi. Maharaja-maharaja terdahulu sungguhpun mencakup gagasan Legalist sebagai cara menggunakan kawalan ke atas wilayah dan penduduk mereka yang besar dan membesar. Proses ini disatukan dengan kepercayaan Cina tradisional pada urutan kosmos, memegang bahawa kelakuan betul adalah kelakuan selaras dengan jawapan sesuai dimuatkan oleh . Xíng menyatakan kos potensi pada individu menggunakan mereak dan mengenakan denda untuk tindakan ini.[5]

Zaman kemaharajaan dicirikan terutamanya oleh konsep undang-undang sebagai berkhidmat negara, sebagai cara mengenakan kawalan ke atas kewarganegaraan. Sewaktu lewat dinasti Qing ada usaha untuk membaharukan kod-kod undang-undang terutamanya dengna mengimpot kod Jerman sedikit pengubahsuaian. Usaha ini berterusan dan telah diluaskan sewaktu zaman republikan mengakibatkan Perlembagaan Sementara 1912 yang memasuki gagasan kesamaan di bawah undang-undang, hak asasi untuk wanita, dan hak lebih lebar untuk warga negara vis-à-vis kerajaan. Permulaan zaman komunis pada mulanya menggulingkan perkembangan hak individu dengna konsep asas mengembalikan yang pada alat negara. Selepas Revolusi Kebudayaan membinasakan taraf profesional intelektual dan legal, ia mengambil hingga took 1982 untuk gagasan hak individu untuk menimbul semula sebagai pengaruh penting pada undang-undang China.

Perlembagaan kini, dicipta di 1982, menyatakan dalam Rencana V bahawa tiada pertubuhan atau individu adalah di atas undang-undang dan dalam Rencana III membuat Kongres Rakyat dan pentadbiran negara bertanggung jawab kepada rakyat, membuka jalan untuk usaha kemudian untuk membenarkan penguatkuasaan hak asasi individu. Pesej Administrative Litigation Law of 1987 mencipta jalan keluar untuk para individu dari tindakan kerajaan yang sembarangan, suatu lebuh yang terdahulunya tidak ada. Sungguhpun lazim berduduk dalam terhadap tindakan undang-undang, litigasi dalam mahkamah China telah bertambah secara dramatis, terutamanya dalam tahun baru-baru ini. Kelemahan berterusan mahkamah diakibatkan dari bergantung kepada kerajaan tempatan untuk sokongan kewangan dan pihak kuat kuasa menjejaskan keberkesanan remedi-remedi ini tetapu ini juga telah bermula untuk berubah dengan permulaan China untuk menambah latihan undang-undang dan keprofesionalan bidang kehakiman. Satu avenue perayuan individu dari tindakan kerajaan yang berterusan menjadi penting adalah adat xinfang atau petisyen oleh warga negara dan pegawai individu untuk perubahan. Kegunaan berlanjutan lebar xinfang mencerminkan nyata bahawa banyak pegawai masih mampu menghindari hukuman undang-undang dan penghindaran yang menjadi asas sistem undang-undang, dan juga kebolehan pegawai untuk secara peribadi bercampur tangan untuk mengubah akibat yang tidak adil. Baru-baru ini xinfang telah di diinstitusikan ke suatu peringkat dengan kerajaan pusat memandat bahawa setiap peringkat pentadbiran menubuhkan suatu pejabat xinfang untuk mengendalikan petisyen dan melapor mereka ke pangkat-pangkat tinggi. Jawapan ini mengikut penggunaan kuasa peribadi jelas bertentangan dengan gagasan kedaulatan undang-undang, dan lebih dahsyat, sesetengah cendiakiawan telah menyatakan bahawa xinfang kini berfungsi sebagai suatu sistem kutipan bermaklumat untuk kerajaan daripada suatu mekanisme kajian semula berkesan.

Confucianism dan Legalisme[sunting | sunting sumber]

Confucianism and Legalism are two major Classical legal theories or philosophies developed during the Spring and Autumn period and the Warring States period, a time that saw the most impressive proliferation of new ideas and philosophies in Chinese history. While both theories call for governmental hierarchy, they differ drastically in their views of human potential and the preferred means to achieve political order. Nevertheless, both theories have influenced and continue to influence the development of cultural, social, and legal norms in China.

The basic premise of Confucianism is the idea that human beings are fundamentally good. With this optimistic view on human potential, Confucius advocates for ruling through li – traditional customs, mores, and norms – which allow people to have a sense of shame and become humane people with good character, rather than through government regulations and penal law. The idea is that people will internalize the acceptable norms and only take proper actions. This will not only lead to a harmonious social order, but it will also provide the additional benefit of improving an individual’s inner character and the overall quality of the society. In contrast, codified laws require external compliance, and people may abide by the laws without fully understanding the reason for compliance. As such, a social order achieved through formal laws does not come with the additional benefit of better citizenry. It is worth noting, however, that even Confucius did not advocate for the elimination of formal laws. Rather, according to Confucius, laws should be used minimally and reserved only for those that insist on pursuing one’s self-interests without taking into account the well being of the society.

As Confucius rejects the general use of formal laws to achieve social order, what lies vital to Confucius’ theory is the willing participation by citizens of the society to search for commonly accepted, cooperative solutions. In addition to willing participation of citizens, there must also be grounds or bases upon which commonly acceptable solutions can be arrived at - the concept known as li. Li is commonly understood as a set of culturally and socially valued norms that provide guidance to proper behaviors that will ultimately lead to a harmonious society. These norms are not fixed or unchangeable over time but rather a reflection of what is accepted at a particular time in a particular context. When conflicts arise, the li have to be applied and interpreted to produce a just result and restore the harmony of the society. However, in the absence of any procedural safeguard afforded by codified laws, interpretation of li is subject to abuse.

Recognizing that people in a society hold diverse interests, Confucius charges the ruler with the responsibility to unify these interests and maintain social order. This is not done by dictatorship but by setting an example. Therefore, a ruler needs not to force his people to behave properly. Instead, the ruler needs only to make himself respectful, and the people will be induced and enlightened by his superior virtues to follow his example – an ideal known as wuwei. Nevertheless, the ruler must know and understand the li to be able to create solutions to conflict and problems the society faces. As the people are to follow the moral standards and example set by the ruler, to a large extent, the quality of the ruler determines the quality of the political order.

In contrast to Confucius’ li-based theory, the Legalism advocates the utilization of codified laws and harsh punishment to achieve social order. This is due to the legalists’ belief that all human beings are born evil and self-interested. Therefore, if left unrestrained, people would engage in selfish behavior which will undoubtedly lead to social unrest. To cure this defect and force people to behave morally, the only way, believed the legalists, is to publicly promulgate clearly written laws and impose harsh punishments.

Realizing that the abilities of rulers are often limited and that reliance on the ruler’s ability and judgment often leads to adverse results, the legalists designed a system in which the law is run by the state, not the ruler. This ensures that the laws will be applied impartially without the interference of personal bias of the ruler or ones who are responsible for applying the laws. It also makes it irrelevant whether the ruler has superior abilities. This non-action promoted by the legalists is their understanding of the concept of wuwei, which is different from the Confucians’ understanding of the same concept. Notwithstanding such an understanding, the ruler, like in Confucianism, has the ultimate authority to decide what the law should be. Therefore, like Confucianism, Legalism is subject to abuse as well. In fact, the Qin emperor implemented strict laws and extremely harsh punishments without taking into account mitigating circumstances even for insignificant crimes. For example, books were burned and people holding different ideals were buried alive. While the Qin emperor successfully instilled fear and respect for law into the minds of his people, the harshness of the law led to his quick demise after only 14 years of reigning over China.

In summary, although both Confucianism and Legalism were developed in a period of turmoil and both were aimed at the re-unification of the country, the two theories went opposite directions with one advocating for and one against the use of formal laws to achieve social order. What the two theories have in common is their concession of the ultimate authority to the ruler, who remained above and beyond the li or law. It is true that neither theory is ideal in achieving a social order. Nevertheless, both theories have had a significant impact on the cultural and legal development in China, and their influence remains visible today.

Confucianisation of law[sunting | sunting sumber]

The significant influence of the Legalist tradition in Chinese law has historically been overlooked. Although the Confucian ideology provided the fundamentals for the substance of traditional law, the Legalist school constructed the important framework of the traditional legal system. The Han dynasty retained the basic legal system established under the Qin but modified some of the harsher aspects in line with the Confucian philosophy of social control.

The Han dynasty formally recognized four sources of law: (律: "codified laws"), ling (令: "the emperor's order"), ke ("statutes inherited from previous dynasties") and bi ("precedents"), among which ling has the highest binding power over the other three. Most legal professionals were not lawyers but generalists trained in philosophy and literature. The local, classically trained, Confucian gentry played a crucial role as arbiters and handled all but the most serious local disputes.

Eventually, the incorporation of the essentials of Confucianist li into legal codes occurred with this Confucian conception dominating ancient Chinese law. Ch'ü concludes that the gradual process of Confucianisation of law was the most significant development in the legal system of China prior to 20th century modernization.[6] The line between ruling by moral influence and ruling by punishment was not always clearly delineated. For example, li could be enforced by moral influence and legal means. The metamorphosis of li into law depended on its widespread and unvaried acceptance by society.

Although the codification of law was largely completed by the Tang Code of CE 624, throughout the centuries the Confucian foundations of the Tang Code were retained, and indeed with some aspects of it strengthened by the later dynasties.

The Confucian notion that morality and self-discipline was more important than legal codes caused many historians, such as Max Weber, until the mid-20th century to conclude that law was not an important part of Imperial Chinese society. This notion, however, has come under extreme criticism and is no longer the conventional wisdom among Sinologists, who have concluded that Imperial China had an elaborate system of both criminal and civil law which was comparable to anything found in Europe.

During the Qing dynasty, criminal justice was based on extremely detailed Great Qing Legal Code. One element of the traditional Chinese criminal justice system is the notion that criminal law has a moral purpose, one of which is to get the convicted to repent and see the error of his ways. In the traditional Chinese legal system, a person could not be convicted of a crime unless he has confessed. This often led to the use of torture, in order to extract the necessary confession. These elements still influence modern Chinese views toward law. All capital offenses were reported to the capital and required the personal approval of the emperor.

There was no civil code separate from the criminal code, which led to the now discredited belief that traditional Chinese law had no civil law. More recent studies have demonstrated that most of the magistrates' legal work was in civil disputes, and that there was an elaborate system of civil law which used the criminal code to establish torts.

Modernization[sunting | sunting sumber]

The introduction and translation of legal texts into Chinese is believed to have been started under the auspices of Lin Zexu in 1839. More systematic introduction of Western law together with other Western sciences started with the establishment of Tongwen Guan in 1862. The major efforts in translation of Western law that continued until the 1920s prepared the building blocks for modern Chinese legal language and Chinese law.[7] Legal translation was very important from 1896 to 1936 during which period the Chinese absorbed and codified their version of Western laws. These efforts were assisted by the medium of the Japanese legal language and law developed in Japan during the Meiji period which involved in large part Japanese translation of European Continental laws.

In the late Qing dynasty there was a concerted effort to establish legal codes based on European models. Because of the German victory in the Franco-Prussian War and because Japan was used as the model for political and legal reform, the law codes which were adopted were modeled closely after that of Germany.

Attitudes toward the traditional Chinese legal system changed markedly in the late-20th century. Most Chinese and Westerners of the early 20th century regarded the traditional Chinese legal system as backward and barbaric. However, extensive research into China's traditional legal system has caused attitudes to become more favorable in the late-20th and early 21st centuries. Researchers of the early and mid-20th century tended to compare the traditional Chinese legal system to then contemporary systems, finding the former to be backward. However, more recent research compared the 18th century Chinese legal system to European systems of the 18th century, resulting in a far more positive view of traditional Chinese law.

The Department of Punishment was changed to fa bu (法部: "Department of Law") in the early 1900s legal reforms.

Republik China[sunting | sunting sumber]

Law in the Republic of China (Taiwan) is mainly a civil law system. The legal structure is codified into the Six Codes: the Constitution, the Civil Code, the Code of Civil Procedures, the Criminal Code, the Code of Criminal Procedures and in Administrative laws.

Republik Rakyat China[sunting | sunting sumber]

After the Communist victory in 1949, the People's Republic of China quickly abolished the ROC's legal codes and attempted to create a system of socialist law copied from the Soviet Union. With the Sino-Soviet split and the Cultural Revolution, all legal work was suspected of being counter-revolutionary, and the legal system completely collapsed.

Over the past century, there have been numerous constitutions in China.[8] The first attempts towards implementing a constitution in China were made during the final decade of the Qing Dynasty. Several constitutions were subsequently promulgated by various controlling groups between that time and the establishment of the PRC. The PRC had a provisional constitution from its inception until the enactment of its first constitution in 1954. This initial constitution was based on the constitution of the Soviet Union. It was shortly ignored, however, and became without legal force. Although it provided that the National People’s Congress (NPC) would be elected every four years as the highest state power, these guidelines were not adhered to. The second constitution of the PRC was modeled on the ideology of the Cultural Revolution and promulgated in 1975. This constitution subjected the NPC to the Communist Party and removed previous constitutional protections such as equality under the law and private property succession rights. It was also immediately disregarded through breaches of its provisions and in-adherence to guidelines regarding the NPC. The third constitution of the PRC was adopted in 1978. Although this version moved away from the ideologies of the Cultural Revolution, it did retain some remnants of it. It also retained Communist Party control over the state structure. However, reformists subsequently gained power, which lead to the breakdown of this constitution as focus shifted to economic construction and modernization.

With the start of the Deng Xiaoping reforms, the need for reconstructing a legal system to restrain abuses of official authority and revolutionary excesses was seen. In 1982, the National People's Congress adopted a new state constitution that emphasized the rule of law under which even party leaders are theoretically held accountable. This reconstruction was done in piece-meal fashion. Typically, temporary or local regulations would be established and after a few years of experimentation, conflicting regulations and laws would be standardized.

The current Constitution of the PRC was enacted in 1982 and reflects the model of the first PRC constitution.[9] The Constitution provides that leadership is through the working class, which in turn is led by the Communist Party. This Constitution also contains more extensive rights than any of the previous constitutions. The rights include equality before the law, political rights, religious freedom, personal freedom, social and economic rights, cultural and educational rights, and familial rights. These rights, however, are connected to social duties. The duties include safeguarding the unity, security, honor, and interests of the country, observing law and social ethics, paying taxes, and serving in the military. Neither the rights nor duties provided for in the Constitution are exhaustive.

The Constitution provides that the NPC is the supreme organ of state power over a structure of other people’s congresses at various levels.[10] The NPC has power to amend the Constitution by a two-thirds majority, promulgate legislation, elect and remove highest-level officials, determine the budget, and control economic and social development planning. The NPC also includes a Standing Committee that functions much as the NPC does when the NPC is not in session. Although the Standing Committee has had some powers since 1955, its law-making powers were initially provided for in the 1982 Constitution. The NPC sits at the highest level in the hierarchy of governmental structure in the PRC. This national level is followed in descending order by the provincial level (including autonomous regions and municipalities directly under the national level), the prefectural level, the county level, and the townships and towns level. Government members at the lower two levels are directly elected, and those at the higher levels are elected by the lower levels. In addition to the NPC, the provincial people’s congresses possesses legislative power and can pass laws so long as they do not contravene the Constitution or higher legislation or administrative regulations.

The Constitution states its own supremacy.[11] However, it has been theorized that the supremacy of the Communist Party means that the Constitution and law are not supreme, and that this perspective is the result of the Marxist view of law as simply a superstructure combined with a lack of recognition of rule of law in philosophical or historical tradition. Although the Constitution provides for legislative, executive, judicial, and pro-curatorial powers, they are all still subject to Communist Party leadership. Often, important political decisions are made through actions which are not regulated by the Constitution. Additionally, courts may not rely on the Constitution in deciding cases, and they may not review legislation for Constitutionality. Nonetheless the Constitution does provide the linguistic framework for conducting government affairs and describing them in the media.

Since 1979, when the drive to establish a functioning legal system began, more than 300 laws and regulations, most of them in the economic area, have been promulgated. The use of mediation committees, informed groups of citizens who resolve about 90% of the PRC's civil disputes and some minor criminal cases at no cost to the parties, is one innovative device. There are more than 800,000 such committees in both rural and urban areas.

In drafting the new laws, the PRC has declined to copy any other legal system wholesale, and the general pattern has been to issue laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more precedental value than in most civil law jurisdiction. In formulating laws, the PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the Republic of China on Taiwan, and the English-based common law used in Hong Kong.

Legal reform became a government priority in the 1990s. The Chinese government has promoted a reform it often calls "legalisation" (法制化). Legalisation, among other things, has provided the regime with a gloss of legitimacy and has enhanced predictability. There have been major efforts in the rationalization and strengthening of the legal structure and institution building in terms of developing and improving the professionalism of the legislature, judiciary and legal profession. As market reforms have deepened and social inequality has widened, legal forums - ranging from mediation and arbitration commissions to courts - have come to play an increasingly prominent role.

The 1994 Administrative Procedure Law allows citizens to sue officials for abuse of authority or malfeasance. In addition, the criminal law and the criminal procedures laws were amended to introduce significant reforms. The criminal law amendments abolished the crime of "counter- revolutionary" activity. However political dissidents are sometimes charged on the grounds of subverting state security or publishing state secrets. Criminal procedures reforms also encouraged establishment of a more transparent, adversarial trial process. Minor crimes such as prostitution and drug use are sometimes dealt with under re-education through labor laws. The PRC constitution and laws provide for fundamental human rights, including due process, but some have argued that they are often ignored in practice. (See Human rights in the People's Republic of China.)

The basic principles of Chinese legislative drafting include generality and flexibility. Sometimes excessive generality and omissions in Chinese law, coupled with the wide discretionary powers conferred on local authorities to implement laws, undermines the predictability and certainty of law. Furthermore, as Chinese law is intended to be educative, the language of the law is that of the ordinary language comprehensible to the average citizen, although many laws are drafted in broad and indeterminate language.

As a result of a pending trade war with the United States of America over violations of intellectual property rights of American corporations in the early 1990s, the People's Republic of China's trademark law has been modified and now offers significant protections to foreign trademark owners.[12]

After the transfers of sovereignty, Hong Kong and Macau continue to practice English Common Law and Portuguese legal systems respectively, with their own courts of final appeal. In other words, Hong Kong and Macau are outside of the legal jurisdiction of the People's Republic of China, except on constitutional issues.

Due to the growing sophistication of Chinese laws, the expansion of the rule of law, as well as an influx of foreign law firms, China has also begun to develop a legal services market. Foreign lawyers have accompanied foreign capital and their clients to China which has had an immense influence on the promulgation of new Chinese laws based on international norms, especially in regards to intellectual property and corporate and securities law.[12]

On July 1, 1992, in order to meet growing demand, the Chinese government opened the legal services market to foreign law firms allowing them to establish offices in China when the Ministry of Justice and the State Administration of Industry and Commerce (SAOIC) issued the Provisional Regulation of Establishment of Offices by Foreign Law Firms regulation.[13] As a result, many foreign law firms, including the United States' Baker & McKenzie and Paul, Weiss, Rifkind, Wharton & Garrison, along with several British firms, incorporated consulting firms in their home countries or Hong Kong and then set up subsidiaries in Beijing or Shanghai to provide legal services.

However, there still many regulatory barriers to entry to protect the domestic legal industry. Issues relating to Chinese law must be referred to Chinese law firms and foreign lawyers are also prohibited from interpreting or practicing Chinese law nor representing their clients in court. However, in reality many foreign law firms interpret laws and manage litigation by directing the local firms they must have cooperative relationships with. In this regards China's restrictive legal market can be directly tied to a phobia of people asserting their legal rights in the face of rampant corruption. Information received from the State Council Legislative Office suggests that China may be allowing foreigners to sit the Chinese Lawyers Examination, or have a mutual recognition treaty with other countries to allow foreign lawyers to conduct non-litigation Chinese legal work.

While the trend in China’s legal landscape is to continue to open up the legal market, China’s laws and regulations have helped develop a number of domestic Chinese firms to specializing to meet demand of a booming economy. According to Asia Law and Business magazine China Awards, the top China firms were King & Wood PRC Lawyers, Commerce & Finance Law Offices, Fangda Partners, Haiwen & Partners, Jun He Law Offices and Lehman, Lee & Xu.[14]

Hak undang-undang[sunting | sunting sumber]

China Klasik tidak mempunyai persamaan semantik dengan konsep "hak". Gagasan hak diperkenalkan ke China dari Barat. Terjemahannya sebagai quanli (权利) dicipta oleh William Alexander Parsons Martin pada 1864, dalam terjemahannya Elements of International Law Henry Wheaton.

Nota[sunting | sunting sumber]

  1. See Lang Chippings, "Explicating 'Law': A Comparative Perspective of Chinese and Western Legal Culture" (1989) 3(1) Journal of Chinese Law 55-92.
  2. Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ching Dynasty Cases with Historical, Social, and Judicial Commentaries (Philadelphia: University of Pennsylvania Press, 1973) at 14-15.
  3. Yan Fu, Fayi [法意: "The Spirit of the Laws"] (Beijing: The Commercial Press, 1981) at 2.
  4. Note 4 at 13.
  5. Brian E. McKnight, Law and Order in Sung China (London: Cambridge University Press, 1992) at 6.
  6. Ch'ü T'ung-tsu, Law and Society in Traditional China (Paris: Mouton & Co., 1965) at 280.
  7. Yu Jiang, "Jindai Zhongguo faxue yuci de xingcheng yu fazhan" [近代中国法学语词的形成与发展: "Formation and development of modern Chinese legal language and terms"] in Zhongxi falü chuantong [中西法律传统: "Chinese and Western Legal Tradition"], vol. 1 (Beijing: Zhongguo zhengfa daxue chubanshe, 2001).
  8. Albert Hung-Yee Chen (1992), pp. 42-45.
  9. Albert Hung-Yee Chen (1992), pp. 45-54.
  10. Albert Hung-Yee Chen (1992), pp. 48-55.
  11. Albert Hung-Yee Chen (1992), pp. 40-46.
  12. 12.0 12.1 Alford, William P. (1995). To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization. Stanford, California: Stanford University Press. ISBN 0804722706. http://books.google.com/books?id=NahUmDXLYLwC&printsec=frontcover. 
  13. The Internationalization of China's Legal Services Market
  14. ALB Awards

Rujukan[sunting | sunting sumber]

  • Deborah Cao, Chinese Law: A Language Perspective (Hants, England: Ashgate Publishing, 2004).
  • Albert Hung-Yee Chen, An Introduction to the Legal System of the People's Republic of China (1992).
  • Neil J. Diamant et al. (ed.), Engaging the Law in China: State, Society, and Possibilities for Justice (Stanford: Stanford University Press, 2005).
  • Phillip C. C. Huang, Code, Custom and Legal Practice in China (Stanford: Stanford University Press, 2001).
  • Xin Ren, Tradition of the Law and Law of the Tradition (Westport, Connecticut: Greenwood Press, 1997).
  • Scott Andy, China Briefing Business Guide: Mergers and Acquisition Law in China (Kowloon,Hong Kong: Asia Briefing Media, 2007).

Pautan luar[sunting | sunting sumber]