Formation of Civil Law in China in 1912–1929

Abstract

In the article, the authors based on unpublished earlier in Russian language materials, study the process of civil law formation as an independent branch of law in China, paying special attention to the beginning of the 20th century, when the Chinese legal system entered the modernization period. That period is characterized by the existence of a phenomenon of the absence of regulatory and legal material that regulates property and personal non-property social relations that form the basis of civil law, with the activities of the Supreme Court of the Republic of China. The court's presidents, having received a brilliant legal education, by relying on general principles of law, applying established legal customs, interpreting the old Qing legislation and doctrinal interpretation of draft laws, managed to create a unique law enforcement practice. In the framework of the legal system that takes most of the legal positions and constructions from the Roman-German legal family, the judicial precedent, without being formally declared as a source of law, actually took the predominant position in the hierarchy of sources for a decade and a half before it was adopted in 1929-1931, the first and only civil code of China. This situation became possible due to the fact that the leadership of the Qing Empire, long trying to keep the country in international isolation, as a result, was forced not only to open cities and ports for foreigners but also to actually take full advantage of the European right, mostly German, French and Belgian, etc. However, blind copying of legal norms did not give the desired result, and the political struggle after the abolition of the monarchy and the abrogation of the previous legislation created a legal vacuum that needed to be filled in by the judiciary and other law enforcement agencies. That allowed the Supreme Court of China not only to ensure the uniformity of judicial practice but also to become a lawmaking body, adapting the existing legal norms to the needs of contemporary reality. The Supreme Court summarized and systematized its own decisions for the first 7 years of activity, from 1912 to 1918, publishing them in the form of a collection of abstracts. In 1920 the collection was partially translated into English, and in 1924, into French. In 1923 it was supplemented with new jurisprudence and translated into Russian, but not published. And, despite the fact that the legal system of the PRC does not consider itself to any extent the successor of the legal system of the Republic of China, the study of the sources of law of the period 1912-1949 is a prerequisite for the fulfillment of the main function of any science — the growth of new knowledge, and in relation to legal science — understanding of legal traditions and approaches to solving problems and regulating social relations, which are also characteristic of modern Chinese society.