XV Edition GIZ Law Journal

CHINA

CHINA

plaintiff often had to bribe his way through the many assistants of the county official. 132 Furthermore, law in imperial China was largely understood as Criminal Law. Regulations regarding civil conflicts hardly existed, even less were they actually applied. 133 It was thus neither guaranteed that the official would hear the case, nor that he would find a fair judgement through the application of the law. Conflicts between members of the family or the community were therefore usually settled within these structures. Only if a conflict began to threaten the peaceful functioning of society itself, the case would end up before an official court. 134 This predominant role of mediation through informal justice actors from within the community lasted through most of imperial China up to the Qing dynasty (1644-1911 AD). c. 20th century China During the Republic of China from 1911 to 1949, both the organization of the community and the legal system underwent significant changes. Even though the ruling Kuomintang party (KMT) upheld the baojia-structure of the community 135 , the responsibility for communal conflict resolution went to Mediation Committees, that were installed both in cities and in rural areas. Mediators were no longer determined through traditional hierarchies, but elected by the citizens assembly. Furthermore, the KMT passed legislation that stated the organization, procedural rules and responsibilities of the committees. This legislation was the first attempt of Chinese governments to regulate and formalize the communal conflict resolution work. Also, laws of procedure from this time often limited the scope of extra-judicial mediation procedures and strengthened

manage their respective cases, file legal documents and receive notifications from the court or oversee the enforcement of court decisions online. Since late 2016, Chinese citizens have been able to livestream around 12Mio. public hearings frommore than 1,400 People’s Courts nationwide and access a database of 48 Mio. anonymized court decisions. Add to that the appx. 12 Mio. new cases accepted by Chinese courts annually. 124 There is however another number, that receives much less attention: almost 3.9 Mio. People’s Mediators, organized in 780,000 Mediation Committees, handling 9 Mio. legal cases per year. 125 China’s impressive achievements in poverty alleviation and technological development, just as much as the omnipresence and tight grip of the central government with its autocratic style of leadership, make it somewhat improbable that at the grassroot level there could be an underlying layer of historically grown, partially informal justice mechanisms. 2.2. Historical and cultural background a. Clash of Philosophies The coexistence of formal and informal justice mechanisms may, in part, be explained by the profound impact of two distinct philosophical concepts on Chinese society: Confucianism and Legalism. The latter assumes, very generally speaking, that humans are created unequal and are evil by nature. Therefore, tosafeguardthegoodorderofsocietyandto guide humanbehaviour, laws are just as indispensable

the parties failure to balance their colliding interests and thus a lack of virtue. That, in turn, meant a loss of face (social shame) for both. This understanding of virtuous behaviour has shaped many aspects of Chinese society and still does so today, especially among the rural population and the elderly. Even though Confucianism has become a defining philosophy of Chinese culture, Legalism retained significant influence. Chinese society of the past two millennia is often described as a blend of both philosophies: While officially following and preaching Confucianist ideals, everyday life and social order is nonetheless organized through laws. 130 b. Imperial China Even before the emergence of Confucianism, mediation and conflict resolution through informal justice mechanisms played a major role in Imperial China’s society. The primary instance for conflict resolution within the family was either the head or another high-ranking member of the family. Outside the family, for conflicts within the community, a village elder would usually perform this function (the importance of which can still be observed in present day China’s Rural Committees, which are usually comprised of influential, high-ranking members of the community). The reason for the common acceptance of these IJM’s was not the absence of state institutions, but rather a general mistrust of the population in the fairness and objectiveness of their decisions. Jurisdiction was usually performed at the county level. Even in ancient times, a county official1 131 would have jurisdiction over up to 200,000 county citizens. To have his case heard, a

as their strict enforcement by the sovereign (i.e. the government). 126 Confucius (551-479 BC) proposed and taught a different concept. Discarding the idea of mankind’s evil nature, Confucianism instead suggested that violence and other bad behaviours are the consequence of negative environmental influences and a lack of education. It thus builds upon the idea that human behaviour should not primarily be shaped through laws and regulations, but through moral insight. The latter allowed a person to develop propriety, virtue and righteousness. Any person who developed and exerted these qualities in daily life, may be considered a nobleman. 127 Consequently, any society that is constituted of such noblemen, will form a well-ordered society. Becoming state doctrine during the first unified empire of Qin (221-206 BC), Confucianism really gained grounds during the following Han-Dynasty (206 BC-220 AD). The cultural significance of mediation 128 as a means of conflict resolution has strong roots in the Confucianist thinking: Virtuous individuals will be able to harmonize their interests with those of society; less virtuous individuals need to be morally educated through feelings of shame to behave properly. It is thus that conflicts should be resolved by agreement between the two parties. Should the involved individuals be incapable of finding a solution themselves, they may request a respected member of the family, clan or community to mediate. Mediation in that sense primarily aims at assisting the parties in determining their respective obligations towards another. 129 Seeking a formal, imperative judgement by a public institution (such as courts or public servants) to settle the conflict, however, showed

124 China Statistical Yearbook, http://www.stats.gov.cn/tjsj/ndsj/2017/indexeh.htm (retrieved: 10/10/2018) 125 China Statistical Yearbook (retrieved: 10/10/2018) 126 Xin Ren, Tradition of the Law and Law of the Tradition, p. 20 127 Ren, p. 42 128 Chinese: 调解 (tiaojie)

130 Gerke, Die Schlichtung im chinesischen Recht, p. 21 131 Chin. 官府 (guanfu) 132 Gerke, p. 22 133 Weggel, Chinesische Rechtsgeschichte, p. 170 134 Gerke, p. 21

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129 While being considerably humanist in many of its ideas, Confucianism nonetheless stipulates a concept of clear social ranks and roles. Social relationships need to be properly defined and named. Without clarity about a person’s responsibilities towards any other person, a society based on moral insight cannot function. Thus many Confucianist scholars later accepted laws as a means of determining these roles and proper behaviour.

135 The largely autonomous urban communities were organized in a so-called baojia-structure, which meant a fragmentation of the local community into several sub-units that contained up to 10 families. They were headed by a representative who formed the link to the official government institutions.