Legal System of PRC as Compared to Hong Kong - Essay Example

Those researchers who deal with history have divided the legal history of China into two categories; traditional and modern. The history and structure of the legal system in traditional China are characterized by feudalism, emperor rule, and imperialism. The modern PRC has three arms of government, Executive, Legislative, and Judicial. It derives its main sources of law from the Constitution, the Statutory Laws passed by the NPC, International Treaties, and Case Law. The principal supervisor of the law in China is the Procuratorate. In Hong Kong, the Department of Justice is headed by the Secretary, and prosecutorial duties are carried out by the prosecution counsel. Differences exist in the way investigations are done, and decisions made to go ahead with prosecution as well as arrival at a suitable penalty. However, the important point to note is that both systems are very observant of strict compliance with the law, and do their best to adhere to this.

Introduction

The History of the Legal System in China

The history of China is long and rich and spans millennia of civilization. Those researchers who deal with history have divided the legal history of China into two categories; traditional and modern. The history and structure of the legal system in traditional China are characterized by feudalism, emperor rule, and imperialism. The existence of legal codes was known in traditional China with the oldest surviving one being the Tang code which was promulgated in the seventh century AD. This was the basis for the development of the subsequent Song, Ming, Yuan, and Qing dynasty codes. These codes and statutes are the guidelines for the regulation of matters relating to criminal law in contemporary legal systems. The distinction between criminal and civil law had not yet been made in jurisprudence and many times penal consequences were effected on acts that would be covered by civil law in contemporary society.

Civil disputes between individuals to do with family or land matters were dealt with using mediation. This was carried out by respected leaders or elders within the village setup who used rules that were customary as well as moral concepts to achieve harmony among affected parties. The emperor had executive, legislative and judicial powers in traditional China and although the laws were binding to all citizens, the emperor remained unbound by them. Being the supreme power when it came to judicial matters, the emperor was at liberty to establish the guilt or innocence of accused parties, determine the penal sentence or change the rulings given by lower courts.

In the early part of the twentieth century, the Qing Empire made an effort to bring up to date the legal system. It became increasingly obvious that some aspects of the legal system, the extreme measures instituted in criminal proceedings, and the dearth of commercial law, for example, were keeping the Chinese legal system from being competitive as compared to other jurisdictions. The Law Reform Bureau was incepted in 1904 and it was tasked with the translation of foreign codes and drafting of new laws. The Imperial Constitutional Outline was promulgated in 1908, but before the new laws could be implemented, the Qing Empire was overthrown in 1911. However, the incoming government did implement some of the laws that were based on drafts produced in the reform movement initiated by the Qing Empire. July 1st, 1921 saw the establishment of the Communist Party of China (CPC) and there followed shortly after, a period of upheaval that was named the ‘New Democratic Revolution’. This revolution embodied three crucial struggles that the CPC underwent. These were the Second Revolutionary Civil War from 1927 to 1937, the War of Resistance against Japan from 1937 to 1945, and the Third Revolutionary Civil War from 1945 to 1949. The People’s Republic of China was founded by the CPC in 1949.