Lin Li - Interpreting Chinas Legal System

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INTERPRETING

CHINAS

LEGAL SYSTEM

editor

LI Lin

Chinese Academy of Social Sciences, China

Translator

CAO Li

Beijing Institute of Technology, China

Published by

World Scientific Publishing Co. Pte. Ltd.

5 Toh Tuck Link, Singapore 596224

USA office: 27 Warren Street, Suite 401-402, Hackensack, NJ 07601

UK office: 57 Shelton Street, Covent Garden, London WC2H 9HE

Library of Congress Cataloging-in-Publication Data

Names: Li, Lin, J.D., editor.

Title: Interpreting Chinas legal system / edited by Lin Li

(Chinese Academy of Social Sciences, China).

Description: New Jersey : World Scientific, 2018.

Identifiers: LCCN 2017043743 | ISBN 9789813231306 (hc : alk. paper)

Subjects: LCSH: Justice, Administration of--China--History. | Jurisprudence--China--History. |

Law--China--History. | International and municipal law--China.

Classification: LCC KNN122 .I58 2018 | DDC 349.51--dc23

LC record available at https://lccn.loc.gov/2017043743

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.

Originally published in Chinese by China Social Sciences Press

Copyright 2014 China Social Sciences Press

Copyright 2018 by World Scientific Publishing Co. Pte. Ltd.

All rights reserved. This book, or parts thereof, may not be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage and retrieval system now known or to be invented, without written permission from the publisher.

For photocopying of material in this volume, please pay a copying fee through the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, USA. In this case permission to photocopy is not required from the publisher.

For any available supplementary material, please visit

http://www.worldscientific.com/worldscibooks/10.1142/10745#t=suppl

Desk Editors: Chandrima Maitra/Lixi Dong

Typeset by Stallion Press

Email:

Printed in Singapore

About the Author

Li Lin has obtained his PhD in Law and is an Academician of Chinese Academy of Social Sciences (CASS). He is also the Director and Researcher of the Institute of Law of CASS, Vice President of China Law Society, Vice Director of the Academic Board of China Law Society, Executive Vice President of the China Jurisprudence Research Association. Lis main research fields are jurisprudence, legislation, constitutional law and comparative law, especially theory of human rights and rule of law, theory of constitutionalism and democracy. He has written or co-authored more than 30 books and published more than 160 articles and submitted more than 60 confidential research. The representative works are Comparative Research on Legislatures, Comparative Legislative Institutions (co-author), Notions and Behaviors of Legal Systems, Reform of Political System and the Construction of Legal System (co-author), On Administrations in Accordance with Law (co-author), Comparative Constitutional Law (co-author), Contemporary Theories and Practices of Human Rights (co-author), Ruling by Law and the Construction of Socialist Country under the Rule of Law (co-author), Ruling by Law and the Realization of Clean Government (co-author), Ruling by Law and Judicial Reform (co-author), Human Rights and Administration of Justice (co-author), Human Rights and Constitutionalism (co-author), Human Rights and the 21st Century (co-author), The Legislation Towards Constitutionalism, The Rule of Law and the 21st Century (co-author), The Change of Rule of Law and Constitutionalism, The Legislation of Theory and Practice, Political Civilization and Constitutionalism, The Exploration of Towards Human Rights and so on.

About the Translator

Cao Li is associate professor of translation studies and director of the Education Center for Master of Translation and Interpreting Program at Beijing Institute of Technology, China. She is an expert member of the Translators Association of China (TAC). Her research interests include identity, ideology and power in translation, sociology of translation, subjectivity in translation, translation pedagogy and intercultural studies. She has published 6 translated books and over 20 journal articles on translation studies, and is an experienced translator specializing in legal and technical translation.

Contents

Chapter 1

Introduction to Chinas Legal System

Part 1.Definition of Law and Legal System

When it comes to the conception of legal system, there is no way to evade the key word law. A comprehensive grasp of what legal system means in the Chinese context is not possible without a through understanding of what the Chinese mean by law.

1.1.Law and its Sources in Chinese Context

1.1.1.What is Law?

In the western context, different schools of law adhere to diversified or even opposite explanations and views on law. For instance, the Normativismus school the legal positivists in modern western law represented by Herbert Hart holds a common conviction: Law is a set of special rules directly or indirectly utilized by a society to determine what actions shall incur punishment or be executed by force, subject to public power. In the will-oriented school, the French philosopher Jean Jacques Rousseau believes that law is but the record of will

In ancient Chinese, fa or fal (law) was endowed with unique meaning. According to Shuowen Jiezi(Origin of Chinese Characters), the first wordbook in Chinese history, in simplified Chinese stems from the ancient variant This Chinese character is composed of three parts: and signifies water, showing that xin (punishment) should be just; (zhi) is a holy creature in Chinese mythology and said to intensely loathe, unprincipled people; (qu) means leave, showing that those having committed evil deeds can be scared away by zhi. This interpretation implies that in ancient Chinese, law and punishment

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