The Great Qing Legal Code (or Great Ching Legal Code), also known as the Qing Code (Ching Code) or, in
Hong Kong law
The law of the Hong Kong Special Administrative Region has its foundation in the English common law system, inherited from being a former British colony and dependent territory. There are several sources of law, the primary ones being statute ...
, as the ''Ta Tsing Leu Lee'' (大清律例), was the
legal code
A code of law, also called a law code or legal code, is a systematic collection of statutes. It is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the cod ...
of the
Qing empire (1644–1912). The code was based on the
Ming
The Ming dynasty (), officially the Great Ming, was an imperial dynasty of China, ruling from 1368 to 1644 following the collapse of the Mongol-led Yuan dynasty. The Ming dynasty was the last orthodox dynasty of China ruled by the Han peop ...
legal code, the Great Ming Code, which was kept largely intact. Compared to the Ming code which had no more than several hundred
statutes and sub-statutes, the Qing code contained 1,907 statutes from over 30 times of revisions between 1644 and 1912. One of the first of these revisions was in 1660, completed by
Wei Zhouzuo and Bahana.
The Qing code was the last legal code of
imperial China. By the end of Qing dynasty, it had been the only legal code enforced in China for nearly 270 years. Even with the fall of imperial Qing in 1912, the Confucian
philosophy of social control enshrined in the Qing code remain influential in the
German
German(s) may refer to:
* Germany (of or related to)
** Germania (historical use)
* Germans, citizens of Germany, people of German ancestry, or native speakers of the German language
** For citizens of Germany, see also German nationality law
**Ge ...
-based system of the
Republic of China, and later, the
Soviet
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, it was nominally a federal union of fifteen nation ...
-based system of the
People's Republic of China
China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's most populous country, with a population exceeding 1.4 billion, slightly ahead of India. China spans the equivalent of five time zones and ...
. Part of the Qing code were used in
British Hong Kong until 1971.
The code was the end result of a complex legal culture and occupied the central position of the Qing legal system. It showed a high level of continuity with the
Tang Legal Code which indicated that there was an active legal tradition at the highest level of Imperial Chinese bureaucracy that had existed for at least a thousand years.
Structure
The Great Qing Code is made up of 436 articles divided into seven parts which are then further subdivided into chapters. The first part (Names and General Rules) is a General Part similar to the General Part of the
BGB. The first part contains the general legal rules, principles and concepts that are applied to the rest of the Code. The other six parts are named after the
Six Ministries
The Three Departments and Six Ministries () system was the primary administrative structure in imperial China from the Sui dynasty (581–618) to the Yuan dynasty (1271–1368). It was also used by Balhae (698–926) and Goryeo (918–1392) an ...
of government and each part contains laws that are perceived as applicable to each ministry.
* First part (Names and General Rules), Articles 1 through 46 - includes but not limited to laws on the Five Punishments (art. 1) and the Ten Great Wrongs (art. 2)
* Second part (Laws relating to the Board of Personnel), Articles 47 through 74 - includes but not limited to laws on the System of Offices (ch. 1) and Official Rules for Carrying Public Administration (ch. 2)
* Third part (Laws relating to the Board of Revenue), Articles 75 though 156 - includes but not limited to laws on Marriage (ch. 3 - 4; art. 101 - 107) and Taxes (ch.7; art. 141 - 148)
* Fourth part (Laws relating to the Board of Rites), Articles 157 through 182 - includes laws on Sacrifices (Ch. 1) and Rules of Demeanor (Ch. 2)
* Fifth part (Laws relating to the Board of War), Articles 183 through 253 - includes but not limited to laws on Guarding the Palace (ch. 1, art. 183 - 198) and Military Affairs (ch.2; art. 199 - 219)
* Sixth part (Laws relating to the Board of Punishments), Articles 254 to 423 - includes but not limited to laws on Homicide (ch. 8 - 10; art. 282 - 301)
* Seventh part (Laws relating to the Board of Works), Articles 424 to 436 - includes laws relating to Construction (ch. 1) and Dikes (ch. 2)
Five Punishments
The five punishments in the code contained in Article 1 are:
* The punishment of beating with the light bamboo.
* The punishment of beating with the heavy bamboo
* Penal Servitude
* The punishment of Exile
* The penalty of Death.
Nature of the Code
A traditional Chinese legal system was largely in place during the Qing dynasty. The process of the amalgamation of a
Confucian
Confucianism, also known as Ruism or Ru classicism, is a system of thought and behavior originating in ancient China. Variously described as tradition, a philosophy, a religion, a humanistic or rationalistic religion, a way of governing, or ...
world-view and a legal code was considered complete by the ''
Tang Code
The ''Tang Code'' () was a penal code that was established and used during the Tang Dynasty in China. Supplemented by civil statutes and regulations, it became the basis for later dynastic codes not only in China but elsewhere in East Asia. The Cod ...
'' of AD 624. The code was regarded as a model of precision and clarity in terms of drafting and structure.
Neo-Confucianism
Neo-Confucianism (, often shortened to ''lǐxué'' 理學, literally "School of Principle") is a moral, ethical, and metaphysical Chinese philosophy influenced by Confucianism, and originated with Han Yu (768–824) and Li Ao (772–841) in t ...
continued to be the state orthodoxy under the
Song
A song is a musical composition intended to be performed by the human voice. This is often done at distinct and fixed pitches (melodies) using patterns of sound and silence. Songs contain various forms, such as those including the repetit ...
,
Ming
The Ming dynasty (), officially the Great Ming, was an imperial dynasty of China, ruling from 1368 to 1644 following the collapse of the Mongol-led Yuan dynasty. The Ming dynasty was the last orthodox dynasty of China ruled by the Han peop ...
and
Qing dynasties. Throughout the centuries, the Confucian foundations of the ''Tang Code'' were retained with even some aspects strengthened.
During the Qing dynasty, criminal justice was based on an extremely detailed criminal 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 they confessed. This often led to the use of
torture
Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogational torture, interrogation for information, or intimidating third parties. definitions of tortur ...
, in order to extract the necessary confession. These elements still influence modern Chinese views toward law. All
death sentences
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
were reported to the capital and required the personal approval of the
emperor
An emperor (from la, imperator, via fro, empereor) is a monarch, and usually the sovereignty, sovereign ruler of an empire or another type of imperial realm. Empress, the female equivalent, may indicate an emperor's wife (empress consort), ...
.
There was no
civil code separate from the
criminal code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
, 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 Qing Code to establish
torts
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishabl ...
.
The ''Qing Code'' was in form exclusively a criminal code. Its statutes throughout stated as prohibitions and restrictions, and the violation of which was subjected to a range of punishments by a
legalist state. In practice, however, large sections of the code and its sub-statutes dealt with matters that would properly be characterised as civil law. The populace made extensive use (perhaps a third of all cases) of the local magistrate courts to bring suits or threaten to sue on a whole range of civil disputes, characterized as "minor matters" in the ''Qing Code''. Moreover, in practice, magistrates frequently tempered the application of the code by taking prevalent local custom into account in their decisions. Filed complaints were often settled among the parties before they received a formal court hearing, sometimes under the influence of probable action by the court.
Qing Code and the West
The ''Great Qing Legal Code'' was the first written Chinese work directly translated into
English
English usually refers to:
* English language
* English people
English may also refer to:
Peoples, culture, and language
* ''English'', an adjective for something of, from, or related to England
** English national ide ...
. The translation, known as ''Fundamental Laws of China'' was completed by English traveller
Sir George Staunton in 1810. It was the first time the Qing code had been translated into a European language. The French translation was published in 1812.
The
First
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and rec ...
and
Second Opium Wars between the Qing dynasty and several
Western powers
The Western world, also known as the West, primarily refers to the various nations and states in the regions of Europe, North America, and Oceania. led to the forced signing of several
unequal treaties
Unequal treaty is the name given by the Chinese to a series of treaties signed during the 19th and early 20th centuries, between China (mostly referring to the Qing dynasty) and various Western powers (specifically the British Empire, France, the ...
by the Chinese government, which granted subjects of the foreign nations in question
extraterritoriality
In international law, extraterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations.
Historically, this primarily applied to individuals, as jurisdiction was usually cl ...
in China, which included being exempted from the Great Qing Legal Code. According to historian Ronald C. Po, foreign exemption from Chinese laws as a result of the unequal treaties "substantially challenged" Chinese control over its maritime border.
In the late Qing dynasty, there was a concerted effort to establish legal codes based on
Europe
Europe is a large peninsula conventionally considered a continent in its own right because of its great physical size and the weight of its history and traditions. Europe is also considered a subcontinent of Eurasia and it is located entirel ...
an models as a part of the
Self-Strengthening Movement
The Self-Strengthening Movement, also known as the Westernization or Western Affairs Movement (–1895), was a period of radical institutional reforms initiated in China during the late Qing dynasty following the military disasters of the Opium ...
. Due to the German victory in the
Franco-Prussian War and because
Imperial Japan
The also known as the Japanese Empire or Imperial Japan, was a historical nation-state and great power that existed from the Meiji Restoration in 1868 until the enactment of the post-World War II 1947 constitution and subsequent forma ...
was used as the model for political and legal reform, the adopted legal code was modelled closely on that of
Germany
Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
.
The end of the Qing Code and its remaining influence
In the early 20th century, with the advent of the "Constitutional Movement", the imperial government was forced by various pressures to quickly modernise its legal system. While the Qing Code remained law, it was qualified and supplemented in quick succession by the ''
Outline of the Imperial Constitution'' of 1908 and the ''Nineteen Important Constitutional Covenants'' of 1911, as well as various specialist laws, such as the ''Great Qing Copyright Code'' in 1910.
In 1912, the collapse of Qing dynasty ended 268 years of its imperial rule over China and 2000 years of Chinese imperial history came to an end. The Qing court was replaced by the Republic of China government. While some parts of the Qing Code and other late Qing statutes were adopted for "temporary application" by the
Beiyang Government
The Beiyang government (), officially the Republic of China (), sometimes spelled Peiyang Government, refers to the government of the Republic of China which sat in its capital Peking ( Beijing) between 1912 and 1928. It was internationally ...
of the Republic of China, as a general legal position the Qing Code ceased to have effect ''de jure'' due to the dissolution of the Qing state.
Republic of China
The newly founded
Republic of China adopted the existing German-based legal codes, but these codes were not immediately put into practice. Following the overthrow of the Qing dynasty in 1912, China came under the control of rival warlords and had no government strong enough to establish a legal code to replace the Qing code. Finally in 1927,
Chiang Kai-shek's
Kuomintang
The Kuomintang (KMT), also referred to as the Guomindang (GMD), the Nationalist Party of China (NPC) or the Chinese Nationalist Party (CNP), is a major political party in the Republic of China, initially on the Chinese mainland and in Tai ...
government attempted to develop Western-style legal and penal systems. Few of the KMT codes, however, were implemented nationwide. Although government leaders were striving for a Western-inspired system of codified law, the traditional Chinese preference for collective social sanctions over impersonal legalism hindered constitutional and legal development. The spirit of the new laws never penetrated to the grass-roots level or provided hoped-for stability. Ideally, individuals were to be equal before the law, but this premise proved to be more rhetorical than substantive.
Law in the Republic of China on
Taiwan
Taiwan, officially the Republic of China (ROC), is a country in East Asia, at the junction of the East and South China Seas in the northwestern Pacific Ocean, with the People's Republic of China (PRC) to the northwest, Japan to the nort ...
today is based on the German-based legal system carried to Taiwan by the Kuomintang. The influence of the Qing Code manifests itself in the form of an exceptionally detailed penal code, with a large number of offences punishable by
death
Death is the irreversible cessation of all biological functions that sustain an organism. For organisms with a brain, death can also be defined as the irreversible cessation of functioning of the whole brain, including brainstem, and brain ...
. For example, in addition to the offence of
piracy
Piracy is an act of robbery or criminal violence by ship or boat-borne attackers upon another ship or a coastal area, typically with the goal of stealing cargo and other valuable goods. Those who conduct acts of piracy are called pirates, v ...
, there are also ''piracy causing grievous bodily harm'' (punishable by death or life imprisonment pursuant to Section 3 of Article 333 of the ''Criminal Code of the Republic of China'' (
中華民國刑法)), as well as ''piracy causing death'' and ''piracy with arson, rape, kidnapping or murder'' (both entail mandatory death penalty pursuant to Section 3 of Article 333 and Article 334 of the ''Criminal Code''). One legacy from those bygone era is the offence of ''murder of a family member'' (e.g.
patricide
Patricide is (i) the act of killing one's own father, or (ii) a person who kills their own father or stepfather. The word ''patricide'' derives from the Greek word ''pater'' (father) and the Latin suffix ''-cida'' (cutter or killer). Patricid ...
and
matricide
Matricide is the act of killing one's own mother.
Known or suspected matricides
* Amastrine, Amastris, queen of Heraclea, was drowned by her two sons in 284 BC.
* Cleopatra III of Egypt was assassinated in 101 BC by order of her son, Pto ...
). The offence entails life imprisonment or death pursuant to Section 1 of Article 272 of the ''Criminal Code'', even for minors under 18 years old until abolition on July 1, 2006 of Section 2 of Article 63 of the ''Criminal Code'' that allowed for life imprisonment or the death penalty against minors committing crimes under Section 1 of Article 272.
People's Republic of China
In the
People's Republic of China
China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's most populous country, with a population exceeding 1.4 billion, slightly ahead of India. China spans the equivalent of five time zones and ...
, while the legal system was, and to some extent still is, based on
socialist law
Socialist law or Soviet law denotes a general type of legal system which has been (and continues to be) used in socialist and formerly socialist states. It is based on the civil law system, with major modifications and additions from Marxis ...
, it incorporates certain aspects of the Qing Code, most notably the notion that offenders should be shamed into repentance - in the form of the practice of parading condemned criminals in public from 1927 (the beginning of the Agrarian Revolutionary War) to 1988, when "the declaration of the
Supreme People's Court
The Supreme People's Court of the People's Republic of China (SPC; ) is the highest court of the People's Republic of China. It hears appeals of cases from the high people's courts and is the trial court for cases about matters of nation ...
, the
Supreme People's Procuratorate
The Supreme People's Procuratorate () is the highest national agency responsible for legal prosecution and investigation in the People's Republic of China. Conceived initially in 1949 as the Supreme People's Prosecutor's Office, the agency was r ...
and the Ministry of Public Security on resolutely stopping the street display of convicted and unconvicted criminals" was issued.
Hong Kong
In Hong Kong, after the establishment of
British rule
The British Raj (; from Hindi ''rāj'': kingdom, realm, state, or empire) was the rule of the British Crown on the Indian subcontinent;
*
* it is also called Crown rule in India,
*
*
*
*
or Direct rule in India,
* Quote: "Mill, who was hims ...
in 1841, the Great Qing Legal Code remained in force for the local Chinese population. Until the end of the 19th Century AD, Chinese offenders were still executed by
decapitation, whereas British offenders would be put to death by
hanging
Hanging is the suspension of a person by a noose or ligature around the neck.Oxford English Dictionary, 2nd ed. Hanging as method of execution is unknown, as method of suicide from 1325. The ''Oxford English Dictionary'' states that hanging ...
. Even deep into the 20th Century and well after the fall of the Qing dynasty in China, Chinese men in Hong Kong could still practice
polygamy
Crimes
Polygamy (from Late Greek (') "state of marriage to many spouses") is the practice of marriage, marrying multiple spouses. When a man is married to more than one wife at the same time, sociologists call this polygyny. When a woman is ...
by virtue of the Qing Code—a situation that was ended only with the passing of the Marriage Reform Ordinance 1970 (Cap.178) which came into force on 7 October 1971. Therefore, the Great Qing Legal Code was actually enforced in some form for a total of 327 years, from 1644 AD to 1971 AD.
Because there are still living
concubines
Concubinage is an interpersonal and sexual relationship between a man and a woman in which the couple does not want, or cannot enter into a full marriage. Concubinage and marriage are often regarded as similar but mutually exclusive.
Concubi ...
married before the Marriage Reform Ordinance (Cap.178), and their rights (of inheritance, and the inheritance rights of their sons and daughters) are respected by the Hong Kong legal system (even after the 1997
handover
In cellular telecommunications, handover, or handoff, is the process of transferring an ongoing call or data session from one channel connected to the core network to another channel. In satellite communications it is the process of transfe ...
), the Great Qing Legal Code is still admissible in evidence when handling legal cases relating to events that occurred before 1971.
See also
*
Chinese law
Chinese law is one of the oldest legal traditions in the world. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches.
For most of the history of China, its legal system h ...
*
Traditional Chinese law
Traditional Chinese law refers to the laws, regulations, and rules used in China up to 1911, when the last imperial dynasty fell. It has undergone continuous development since at least the 11th century BCE. This legal tradition is distinct from ...
*
Law of the People's Republic of China
The Law of the People's Republic of China, officially referred to as the Socialist legal system with Chinese characteristics, is the legal regime of China, with the separate legal traditions and systems of mainland China, Hong Kong, and Macau.
...
*
Law of Taiwan
The law of the Republic of China as applied in Free area of the Republic of China, Taiwan, Penghu, Kinmen and Matsu is based on civil law (legal system), civil law with its origins in the modern Japanese law, Japanese and German law, German legal ...
*
Five Punishments
The Five Punishments () was the collective name for a series of physical penalties meted out by the legal system of pre-modern dynastic China. Over time, the nature of the Five Punishments varied. Before the time of Western Han dynasty Emperor Ha ...
*
Ten Abominations
References
*Notes
Further reading
*Bodde, Derk, and Clarence Morris, eds. ''Law in Imperial China: Exemplified by 190 Ch'ing dynasty Cases.'' Cambridge, MA: Harvard University Press, 1967.
*Jones, William C. ''The Great Qing Code: A New Translation'', Oxford: Clarendon Press; New York: Oxford University Press, 1994.
External links
The Qing Code Wallace Johnson, ed.
*
*
*
{{Qing dynasty topics
Legal codes
Legal history of China
Law in Qing dynasty
Law of Hong Kong