Ancient Chinese Concepts of Public Law and the Influence of the Dogmatics of Soviet Public Law on Chinese Civil Law
DOI:
https://doi.org/10.21638/spbu25.2024.406Abstract
The state-legal ideals of ancient China were of a public-law nature, private law being of subsidiary importance at that time. At a time when the imperial system was being targeted by Western powers and the subject of heated debate in Chinese society, it was necessary to take decisive steps to change the existing law. That is why jurists, including Shen Jiaben (1840–1913), the most famous jurist of the period, began to develop appropriate legal reforms, borrowing Western legal doctrines and legislation, and thus for the first time overcoming the old style of Qing legislation, which did not distinguish between civil and criminal law. Almost at the same time, the Russian Empire began the journey towards the creation of the Civil Code. The process of spreading law went not only from West to East, but also from North to South — the latter refers to China’s borrowing of Soviet law. The Soviet theory of civil law as public law helped China, after many years of hesitation, to complete socialist construction along Soviet lines. Subsequently, China chose its own path where private law was given an important place, as evidenced by the adoption of its own Civil Code in 2021. The article reveals the peculiarities of the formation of the ancient Chinese concept of public law. The study also provides an insight into the prerequisites and nature of China’s borrowing of Soviet legal doctrine. The author concludes that public law has played an important role in different times — but even today, when the theory of civil law is well developed, Soviet civil law doctrine, public law in nature, continues to exert an influence that should be approached rationally.
Keywords:
Chinese law, public law dogma, constitutionalization of private law, sociological theory of law, Soviet law, legal transplant
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References
Chen Su. (ed.). 2017. Commentary on the General Principles of the Civil Law. Vol. 1. Beijing, Law Press. (In Chinese)
Duguit, Léon. 1919. General transformations of civil law since the Napoleonic Code. French. Sivers M. M. (ed.). Moscow, Gosudarstvennoe izdatel’stvo Publ. (In Russian)
Gambarov, Yuri S. 1879. Obligations from the point of view of public law. Iuridicheskii vestnik 8: 192–220. (In Russian)
Gambarov, Yuri S. 1879. Public interest in civil law. Iuridicheskii vestnik 5: 673–721. (In Russian)
Gambarov, Yuri S. 1879. The right of ownership from the point of view of the social theory of law. Iuridicheskii vestnik 7: 42–78. (In Russian)
Goikhbarg, Alexander G. 1924. Economic Law of the Russian Soviet Federative Socialist Republic. Vol. 1. Civil Code. Moscow, Gosudarstvennoe izdatel’stvo Publ. (In Russian)
Goikhbarg, Alexander G. 1924. Fundamentals of private property law. Moscow, Krasnaia Nov’ Publ. (In Russian)
He Qinhua. 2001. Transplantation and localization of law. Beijing, Law Press. (In Chinese)
He Qinhua, Li Xiuqing, Chen Yi. (eds). 2002. Overview of the New Chinese Civil Code Draft. Vol. 1. Beijing, Law Press. (In Chinese)
He Qinhua, Li Xiuqing, Chen Yi. (eds). 2003. Overview of the New Chinese Civil Code Draft. Vol. 2. Beijing, Law Press. (In Chinese)
Hou Lei. 2010. The Celestial Empire is the universal domain and public systems — the dogma of public law of ancient Chinese legists. Humanitarian Journal 1: 48–52. (In Chinese)
Ioffe, Olimpiad S. 2000. Selected works on civil law: From the history of civilistic thought. Civil legal relation. Critique of the theory of economic law. Moscow, Statut Publ. (In Russian)
Jiang Ping, Zhang Chu. 1998. The essential characteristic of civil law is private law. China Law Journal 6: 30–33. (In Chinese)
Kavelin, Konstantin D. 1879. Rights and duties on property and obligations in application to Russian legislation: experience of systematic review. St. Petersburg, Tipografiia M. M. Stasiulevicha Publ. (In Russian)
Kavelin, Konstantin D. 2003. Selected Works on Civil Law. Moscow, AO “Tsentr IurInfoR” Publ. (In Russian)
Liang Zhiping. 1997. Seeking Harmony in the Natural Order — Research on Traditional Legal Culture in Ancient China. Beijing, Press of the China University of Political Science and Law. (In Chinese)
Liang Huixing. 2010. Commentary on Chinese civil legislation: civil code, property law, tort liability law. Beijing, Law Press. (In Chinese)
Liang Huixing. 2010. General Introduction to Civil Law. Beijing, Law Press. (In Chinese)
The Complete Works of Li Dazhao. 2006. Vol. 2. Beijing, People’s Publishing House. (In Chinese)
Li Mingde, Ma Xiaohong. 1993. Social Characteristics of Ancient Chinese Law. Beijing, Press of the Party School of the Central Committee of the Communist Party of China. (In Chinese)
Lu Yunkun.1996. Social Drama and Normative Reconstruction: Selected Writings of Yan Fu. Shanghai, Shanghai Far East Publishing House. (In Chinese)
Meyer, Dimitri I. 1862. Russian civil law. St. Petersburg, Tipografiia N. Tiblena i К° Publ. (In Russian)
Shershenevich, Gabriel F. 2003. Science of Civil Law in Russia. Moscow, Statut Publ. (In Russian)
Tao Xijin. 1980. Several Issues Concerning the Drafting of the Civil Law — Comrade Tao Xijin’s Speech at the General Meeting of Teachers and Students of Our College (Abstract). Journal of Southwest Institute of Politics and Law 4: 3–7. (In Chinese)
Tong Rou. 1983. Principles of Civil Law. Beijing, Law Press. (In Chinese)
Vyshinsky, Andrei Y. 1955. Questions of the theory of state and law. Zheng Hua et al. (ed.). Beijing, Law Press. (In Chinese)
Wang Jiafu, Su Qing, Xia Shuhua. 1980. What kind of civil law should we make. Legal Studies 1: 11–16. (In Chinese)
Wang Wei. 2021. How is it possible for the law to limit the state: the theoretical lineage and methodological changes in the legal thought of Léon Duguit. Politics and Law Forum 5: 151–162. (In Chinese)
Wang Weiguo. 1983. Socialist civil law is not private law. Law Quarterly 2: 43–46. (In Chinese)
Wang Zhihua. 2018. Chinese revolutions and codification of Chinese civil legislation. Vestnik of Saint Petersburg University. Law 3: 424–425. (In Russian)
Wieacker, Franz. 2006. History of Modern Private Law. Vol. 2. Cheng Aie, Huang Jianhui (eds). Shanghai, Shanghai Sanlian Bookstore. (In Chinese)
Xu Guodong. 2023. Goikhbarg A. G. and the 1922 Soviet Civil Code — Comment on the 98th Anniversary of the Southern Progression of Northern Law. Jingchu Jurisprudence 1: 122–140. (In Chinese)
Yuan Chengdi. 1986. Socialist law should also distinguish between public and private law. Law Quarterly 4: 22–24. (In Chinese)
Zhang Guohua, Li Guilian. 1989. Selected works of Shen Jiaben. Beijing, Peking University Press. (In Chinese)
Zhang Jinpan. 1997. Tradition and Modern Transformation of Chinese Law. Beijing, Law Publishing House. (In Chinese)
Zhang Jinpan. 1998. A comprehensive study of civil law in the Qing Dynasty. Beijing, Press of the China University of Political Science and Law. (In Chinese)
Zhang Yumin. 2010. Review and Prospect of Fifty Years of Drafting the New Chinese Civil Code. Beijing, Law Press. (In Chinese)
Zhu Guangxin. 2020. Civil Legislation and Codification of Civil Code. Beijing, Social Science Literature Publishing House. (In Chinese)
Zhu Shoupeng. 1958. Guangxu Dynasty Donghua Records. Vol. 5. Beijing, China Bookstore. (In Chinese)
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