Chinese law lecture notes, Appunti di Diritto

Scarica Chinese law lecture notes e più Appunti in PDF di Diritto solo su Docsity! Notes 1 󾓭 Notes Istituto di Diritto Cinese a cura di Ivan Cardillo ISSN 2612-4963 https://dirittocinese.com/ 14/02/22 EXAM: paper on a topic we choose We have to approach China with a scientific point of view, not an emotional one. It’s a complex country with more than 1 billion inhabitants and many different views. The first interaction between China and the Wetsern world happened when Jesuists first came to China. Their main aim was to convert the inhabitants to catholicism, but they temselves were influenced by the chinese culture. In fact the chinese religious books were accurately ordered and the bible itself was very well structured, so the Jesuits used this model to give an order to the western Bible. Voltaire was a lover of China too. In the 16th century Giovanni Botero, an italian priest and diplomat, talks about the astonishment he experienced after discovering the greatness of the chinese population, admiring the way of life and the prosperity. In the 18th and 19th centuries, China was always in the minds of great thinkers such as Hegel. Jean-Pierre Abel-Rémusat(1788-1882) was the first professor to teach chinese language in a french college. 💡 Translation means to move from a place to another, when we move a word we have to pay attention to the environment to prevent misunderstanings. Translation is a way to define words, to close within borders something reducing its complexity. It’s negative. The complexity has to be preserved. Berman says that we should build a communifying language to communicate since there is no remedy for translation. When we look at the written law in China, the texts are the same as in the west. The Japanese did the same things, in 1988 they traveled to Germany, translated the german code and enacted it in Japan, even before the german code became effective in Germany → this is what we call transplant. Chinese laws are similar to western laws in different ways since China interacted with many different countries, it’s a melting pot of influences that produced something new. China is a laboratory of ideas, the challenge is how to create an identity. Holmes, an english scholar, created the integrity approach by integrating together foreign laws. This needs to be done in order to find the indentity. Jospeph Nedham, an english scholar, was so in love with China that he wrote several books on the chinese contribution to civilisation and human kind. These discoveries are not dead, they are part of a narrative. Notes 2 ❗ Attualità → Two years ago trump met Xi jing Pin in the forbidden city (part of Bejing where there is the house of the emperor. Bejing is organised in 5 concentric rings, the central ring is a square with the grave of Mao Zedong in the centre, the palace of government, the national museum with a permanent room dedicated to the japanaese invasion, and the gate to the forbidden city). It was the first time a foreign representative entered the forbidden city. Why is Archeological discovery so important for the chinese? Archeological discovery is key to find proof of the existence of the shang dinasty in the pre-historic era. This is so important that there is a specific law that prevents foreigners from visiting the sites. Chinese law between Tradition and Modernity When chinese students learn about the introduction to law, they use our same approach, starting from the latin word “Ius”, but what about the chinese history of law? Modernity and tradition are in crisis, there is a huge gap between the two: 1. the first gap is the language: Mao Zedong reformed the language in the middle of the 20th century, so nowadays chinese people cannot understand old chinese works. Translation would be the only option but we saw that it brings many misinterpretations even if we are talking about two variations of the same language. People nowadays may be able to read the old language but they wouldn’t be able to understand it fully and apply it. 15/02/22 absent 17/02/22 Characteristics of Chinese law The political system was authoritarian, there was no dichotomy, just an emperor with all powers. Confucianism never discussed the soul of the people tian ming → mandate of heaven / tian zi → son of heaven The old chinese coin, circular with a hole in the middle, usually the characters express the dinasty, represents the cosmological order of the world → The coin represents the human being: the sky is the outer circle, it expresses the round shape of the heaven that completaly embraces whoever enters, the eart is the square and represents yang, it supports. Yin (dark part, mountain part in the shade) and Yang (light part, mountain side touched by the sun) coexist simoultaneosly and are complementary to each other. The entire chinese philosophy is about finding the balance between yin and yang. The emperor was considered son of the heaven and he could harmonize life of society. Human life was regulated trough the time of nature, not the other way around. Nature is at the centre e.g. In spring it was forbidden to kill female animals. The law was not carrying any religious meaning, it was secular, and this is what is very different from western traditions. There was no religious dogma. In the west the idea of secular law was first introduced with enlightment ideas, before that all legislation was influenced by christian religion. secularization of written law political nature / authoritarian political system hostile law Notes 5 There is an emphasis on the right thing to do, people that don’t comply will be called out and shmaed publicly. In confucianism law and right have a close relationship, in fact law could not stand alone without rites, and rites could not prevail without laws. In ancient China the legislation, administration and execution of justice are all subject to the guidance of confucian ideals of government by rights. Law maintained the spiritual order and property, while confucian humanism and miral ethics underpinned the justice of law. The confucianist school is different from the legal school, based on merit and demerit. Li = comprehends a person standing on the left, on bottom right we have a table meaning holding and sustaining, and on the top right we have an object for sacrifice. The right part stands for support for sacrifice. Confucianism developed the idea of worship and it worked really well to give an order to society. Confucianism comes from Confucius, the first philosopher that developed the basic ideas if the philosophy. It was transformed in time (neo-confucianism) but the name was kept because the foundation remained the same. The texts of confucianism vary but we can mention the five classics and the four books, it’s important to mention that confucius himself never wrote books about his philosophy, it was only after some time that men studied his rules and wrote them down. Confucianism developed a very precise architecture of social relationships and basic values that underlined these relationships. The three conrnerstones are the sovereign guides the subjects, the father guides the son and the husband guides the wife. Today article one of the consitution states that the communist party guides people. There is a current use of a stronger entity guiding a weaker entity. The five constant virtues are benevolence, wisdom, trust and rites (what is trust? Xin. The left part stands for men, the right side stands for words, a person standing side to side with their words is a erson we can trust). The aim is that of preservation. Confucious also established the five relationships: between father and son, ruler and minister, husband and wife, younger brother and older brother and between friends. The first four relationships are based on hierarchy, but not the last one which is egalitarian, among equals. During the Han dinasty the first three relationships were referref as the san-kang. The communist party attacked the confucian order because it recalled old imperial China, but in reality confucianism is assimilated by society and people are born into it, so the values remain and are respected. The china dream corresponds to the rejunification of chinese law. The confucian insitute resides around the world and spreads chinese culture. 25/02/22 absent legism, confucianism during imperial china 28/02/22 The chinese law’s modern transition In the 20th century we have huge changes in china. The government finished in 1911 and chnages of the law began happening. This was the last attempt to modernise the country, to give a modern shape to the tradition. “Reforms all started witht he changes of law”. Shen Jiaben is the minister of the departemnt for revision of laws, first president of china’s supreme court, first president of Bejing’s Law society, chief counselor of the constitutional compilation Bureau, vice president of the prparatory congress (in anticipation of a constitutional convention 1910-1911) and vice minister of justice (1970-1911). he was one of the people that really took a step to modrnise china. We are Notes 6 at the end of the Quing dinasty and it’s a period of legal reform. Thanks to modernisation nowadays experts of confucian law are regarded as history teachers rather than law teachers. In 1905 Cixi issued an imperial edict to investigate constituional politics by sending five officials in the west to study western constitutions, they went both in Europe and in the USA (Chicago). One of the matters that needed to be modernised was the relationship between father and son. Some of the scholars that went to the west had been trained on western systems and sought for solutions. The West was seen in different ways by different monarchs . From the beinning pf the 20th century, china needed to become a prosperous and stron country, Lian Qichao writes a book in 1923 “the brief introduction to the modernisation of china in fifty years“. Modern china larned from western countries in search to make the country greater: first period: tool → westernization movement (1860s-1890s) second period: institution → “the hundred days reform” (1898), tried to form a consitutional monarchy third period: culture → the new cultural movement or the chinese (cultural) renaissance (1915-1923). During this period of time young people were attracted by ideas of the west, and this resulted in 1921, with the foundation of the communist movement in China. In 1949 we have the foundation of the People’s republic on China. The ideas of the west are a set values that were really fascinating to young chinese people. Rule of law is a combination of tool, institution and culture. When Yan Fu dealt with he rule of law he related to four aspects in contemproary china: tradition, modern, china, west. To look at the future meant to look at the west, the reform of traditional china meant the westernization of the country. We could also put it the opposite way and call it the confucianization of western ideas. Xijing Pin put forward the idea of teaching well ancient chinese stories to children, in order to preserve chinese identity. Confucianism was never a unitary specific subject, it was never studied and used in the same way throughout history. Modernisation of chinese law in three main issues: 1. Chinese law → do we really mean law? 2. Modernisation → be sincere, in fact, does it mean westernization? The first contact between the two laws happened between international law and confucian law. 3. Civilization → Is the ultimate purpose of law the expansion of civilization? Antiquity in revolution: law without “legalists” In order to study law we must have the proper sources → Scholar tradition → asserting Confucian victory over “Legalism”: the government was to be done by “benevolent men” instead of “harsh laws”. 40 years of archelogical discoveries: new understanding and new ways from remote past to the present not in term of “fixity” or “tradition”, but of legal dynaminsm, and growing complexitity and technicality Chinese law: not the law of china, but th jus commune of east Asia: China, Korea, Japan, Vietnam,... Chinese law basic characteristics Notes 7 Written law and procedure, invenstigations were carried on through written procedures Complementarity: “statutes”, rules of proprotion and exact match, and “fixity” ordinance, convenience and looseness, changeability → rule of recognition: ritual and social obligations requalified by law e.g. mourning rituals / rule of adjudication → law as orders addressed to entitled legal agents Standard sanction of infringement: “one who commits V, or does not perform W, in X circumnstance .... Procedural rules and laws tipulating how invenstigation, forensic examination, interrogations ecc, must me performed under threat of disciplinary sanctions Crisis and reshaping (2nd-8th century) uncertain specification of functions inflation of legal texts and dubious hierarchy of norms collapse of Han dinasty, end of antique empire: Middle age, division between concurrent kingdoms and dinasties Codification from Tang to Ming dinasty (7th-14th century) Why the Tanglu (and its successors) should be called a code? a penal code? a complex administrative law (ill-known for the Tang to Ming times) from the 8th century the tang system is adapted by Japan, Korea ad Vietnma along with Chinese writing, Buddhism and confucianism Ming and Quing dynamisation of law (14th-19th century) Ming revolution (1368): return to the model of chinese government (tang) after Mongol interregnum Ming legal innovations e.g. complementary institutions, effective polarity, insertion of “case law” within the code: substatutes appended to the relevant statute, and the popularization of law: legal knowledge widespread in the populace by all means available. A new wave of importation of Chinese law by Japan, Korea and Vietnam Quing innovations e.g. systematization, revisons every five years, legal awareness in bureaucratic and literatic elites, disticntion between legal and lillegal advisors of the people: professional milieu that anticipates the “lawyers” position, land egal awareness spread among the populace by various means 01/03/22 China has responsability in the Ukranian war? China was either fooled by Putin or was told of the plans to attack ukraine before the olympics in february. In October Xi Jinpin will most likely start his third mandate, he will be a kind of “Putin”. there is no balance or reciprocity since chinese students can continue their studies in the West but western students weren’t able to finish their studies during the pandemic. Knowledge is a powerful tool, it makes the country stronger and boosts their economy in many fields. The legal system needed to strengthen to support the progress. Originally China wanted to modernize itself trough westernuzation, nowadays China wants to go beack to their traditions. Ming and Quing gradual dynamization of law, first attempt to transorm the system Notes 10 Nowadays the UDFHR is “too western” for China. The contact between China and the West goes back to the roman times, in the middle age there have been relationships of commerce and more. Mediation is a compulsory step for any subject. It’s necessary to mediate between cultures even within China, since it’s very diverse. Civil law issue Philip Huang “civil justice under the Quing” Customary law: a colonial process started by the Japanese Customs and customary law as “civil law between people” Conclusion: young generation of chinese scholars more apt to link “tradition”, the tradition of “reform”, “modernity” and the millennial experience of traditonal law. History of chinese law is not connected witht he present. Three sources of law: tradition socialism west we saw that tradition and west encountered many times, while socialism was adapted to chinese social condition. During the pandemic China did much legal work including refoming the constitutiona nd discovering their history trough archeological discoveries. capital of the east is Tokyo, it was part of chinese culture Article 8, 9, 10, 16 Article 109, 128, 133, 184, 1043 Many are similar to western rules (autonomy of will) 07/03/22 foreign direct investment FDI (domestic products and non on two levels). Public security affects everything in China Chinese Constitution Ideas of independence and sovereignty have changed trough the years. What happens externally is always linked to the internal matters. We need to talk about anthropological geography that created territorial traps. China has a long history with extraterritoriality. Preamble: Adopted in 1982, amended many times last time in 2018 (article 1 ph. 2 → ladership of communist party is a fundamental principle, the leading role is essential) The communist party is even regarded as a new dinasty in China., the system is the same. lecture by prof. Shapiro on china communism / netflix american factory 1840 afer the boxer revoltion started wanting democracy (mr. d) and freedom. They are democratic in their own way. 1911 revolution, abolished the feudal monarchy, birth of republic of China Notes 11 1921 → communist china 1949 → common program, internal political document of the communist party that acted as a constitution. Proclaim of the people’s republic of China in the preamble it is stated that china has the longest history in the world and that it’s a country made of people of all ethnic groups (55). Han is an etchnic group, but the term is generally used to refer to chinese people in general because most people are of the han group. Chinese is said “hanyu”, but other ethnic groups dont speak it or have different dialects called “putonghua”. The ethnic groups aren’t divided, they are a compact and ruled by the communist party. It’s also mentioned that people are masters of their own country. 1954 → other constitution more articulated, more inspired by the soviet union’s cnstitutions outbreak of cultural revolution 1966 -1978. The red guards were a group of people that were regarded as responsible for all the violent crimes during the revolution. It was an attemot to erase traditional culture. 1975 → revolutionary constituion, expressing the values of the cultural revolution. 1978 → another constitution refusing all the values of the cultural revolution. Fundamental values of legal orders, they re all legitimate but they cannot really coexist, there needs to be negortation and some parties have to make changes Legal education was limited, China went from having 7 law schools to having 600 schools. 08/03/22 2018 → clear statement of the predominance of the communist party, before it it was not clear. At the beginnig we had the marxist-leninist Mao Zedong thought, a mediator between the cultures that gave his own interpretation. Correcting errors as the main aim and as something continous. Policies in China aren’t adopted once for all, there are trial implementations, policies are first tried out in small counties to identify errors and mistakes. To cross the river we walk cautiosly and carefully, we move steo by step looking for the stable stone, policy implementing works like this, but it was the main principle to approach legislative implementation. Laws are to be revised after giving value to the experience. The primary stage of socialism and the contradiction of society → socialism is still in a primary stage, there are capitalistic elements that are legal. Hisorical continuity, acting according to tradition and political abckground. 1978→ Deng Xiaoping: developed the chinese nation (happened in 40 years, in other countries it was done in 200 years or more). He opened up china to the west, the west helped china a lot but got so much back (win win situation). Can a socialist country be rich? In socialist country we are rich when every single citizen is reach and we cannot do it at once, so to achieve the final result we have to allow certain parts of society be rich first, then think about redistribution of money and ake evryone rich. The idea is of common prosperity. Theory of the three reprents (importance of legitimacy and representivity). Scientific outlook Notes 12 Xi Jinping put forward socialism with chinese characteristics, he lft his mark in chinese history. His idea of of re-organizing socialism was a good one. He tried to balance the ideas and did it in continuity with his precedessors. Xi Jinping is doing the same thing of Deng Xiaoping, he is reaffirming and remebering what was the initial mission and in name of what. He is a theoretical leader, he made works on rule of law, international relations and economy. Democratic dictatorship: the people represent people can rule over a minority: Who are the people? It’s a political concept, in some countries minorites are part of “the people”. In a state of war the majority rules over the minority, the minority then becomes the enemy and don’t belong anymore to the “people”. The expression “socialist path”: way that implies destiny. Reform and opening up → Deng Xiaoping, he always ruled the country from behind, contrarily from Xi Jinping. Possible way of an alternative to western liberal democracy → development of socialist society and socialist market economy. After the war we have the privatization of companies, that had to face eastern companies owned by the government. There is a difference of powers and resources → led to a conflict. A lot of chinese companies owned by the government bought private western companies. The market economy is possible in the socialist system, market is not viewed in a capitalist way, it can be socialist. Democracy was used in adifferent way, alomg with the term “socialist”. step by step → crossing the river metaphor “Great modern socialist country”: modern doesn’t mean westernized, modern socialism. Great rejuvination of the chinese nation → The china dream The exploiting class has been eliminated but the struggle continuous The people of china must fight against those domestic and foreign forces and elements that are hostile to and undermine our country’s socialist system. Taiwan is part of the “sacred” (not common) territory, it is a duty of all the Chinese people, including our fellow Chinese in Taiwan to achieve the great reunification of the motherland. Idea of united front → fought against the japanese forces that invaded china. The united front is represented by the chinese consultative conference, where all representatives sit. This body inherits the principles of all forces united in a front. China’s revolution would have been impossible without the support of the world’s people, China’s future is closely bound up with the future of the world Five principles: 1. mutual respect for sovereignty and territorial integrity 2. mutual nonagression 3. mutual noninterference in internal affairs, 4. follows a mutually beneficial strategy of opening up, works to develop diplomatic relations and economic and cultural exchanges with other countries 5. promotes the building of a human community with a shared future Article 1 → socialist state / people’s democratic dictatorship Article 2 → added in 2018, all power belongs to the people Notes 15 China’s FDI legal framework: two national laws. They are national by nature, implented by the national people’s congress. 1. Civil Code: european framework, adopted in may 2020 and effective since january 2021. 2. FOreign investment law (FIL), adopted in arch 2019 and became effeciv e at he smae time. The legal landscape has transformed innto to big eras: the pre 2020 era and the post 2020 era. Life Cycle of FDI legal regime → soclaist planned economy: china was closed to foreign trade, there were no commercial transactions, eberything was owned and distriuted by the central governent, There was no legal systems for corporte and commercial activities. This changed in 1979, reform and open up plicy: the starting point is the first ilestone. This caused many foreigners to come and there were problems with the lack of company, contract, commercila law. China responded with the EJV law. This meant market reform, domestic business fìreforms and more. When china became part of the WTO and its documents, so supranantional documents became part of chinese law. This created reforms in domestic busisneses. The two tracks became one witht the use of foreign investment law. evolution of chinese regulation form 1979 to 2021. The three laws Era: → EJV, CJV, 1986 Wholly foreign owned enterprises law. Dual track regulation → national treatment became an important principle to be protected after the WTO. Pre 2020 era: National policy on FDI - Four categories (prohibited - restricted - encouraged - permitted) - incomplete national treatment (before and after WTO). The approval regime is very complicated and lengthy process, look at the chart for inspo. Post 2020 era: The FIL era→ Legal framework is changed, the new foundations are the civil codes, the FIL and other domestic laws. With the market entry regulation the regulatory regime ahs changed from the approval regime to the registrations regime, all we need to do is register comanies and buisnesses. FIL important milestone. There is a paradigm shift in EDI regulation. FIL and related domestic laws. The registration regime. there is anw document tht first started in free trade law: there are very open rules for foreign investment. The negative lsit is a legal definition that was given in the foreign investment law act article 4, it measn list of special administrative matters for foreign investment, theese rules can be fully apllied if the foreign investment is fully under its jurisdiction, or in case of mizìxed registration we have an approval process. By default everyhting can skip the approval stage, the registartion is only done in default. Graph on china’s market access negative list: number of items subjects of approval, more sectors are no longer subject to approval, it a gradual process. After 2021 there are no restricitions e.g BMW payed 4.2 billions to take control of chinese JV. They negotited and aquired the chinese manifactural party. In terms of market entry from the liberlization of china, due to the lessening of restricitions in the trade area. There isa nother side of the regime: economically the door widened, form a critical respective the regime has been tightening in terms of national security scrutiny. For this reason we have the implmentation of national security review of regime in 2011, in foreign investment there is a security review process. In 2015 we have a progress with the national secuity law of 2015. Dece,ber 2020 china set up an office formed by the MOFCOM and NSR that jointly issued measures of security review for foreign investment. Emerging national security regime: national security process on foreign investment. In september 2020 china the national ministery of commerce recognizes speifiic foreign entities that are to be condiredred unreliabe, they are prohibited or limited form invesiìting in china. (unreliable entity list of MOFCOM). Notes 16 In 2021 china promulgated dtata security law. How can foreign investors feel safe investin ginchina, if it’s still a higly politically influenced ystem that produces political laws? 15/03/22 Article 30: country’s land → provinces, autonomous regions and cities under central government jurisdiction. The country is china, the sytems duffer, it includes also Hong Kong and Macao. Article 51 - 52 - 54 The united front mentioned in the preamble will develop, the Chinese Poeple’s political consutative conference repesents the united front. There are 8 minor democratic parteis into this conference and they are the biggest representation the poeple have. Film: the story of Qiu Ju Democracy in China exists at a few levels: in elections of deputees of the NPC→ election law of china article 2, the elections happen from bottom to top. All citizens have equal voting rights, everyone over 18 can vote. Who votes owns a card. The NPC has the highest power in the country, it has legisaltive power an the mandate lasts 5 years. There’s a permanent committee that always get together, other committees do it once a year. They don’t get together if the NPC is getting together. Self government is real, they take care of social affairs. There’s a commission in the communist party that look over a number of rural areas’ governments to supervision them. They take care of mediation as a form of government and instrument of politics. The presidium is chosen by the NPC and it does all of th practical work, they make a plan of legislative reform and more. Article 62: list of functions of the NPC, one principle is centrality, it acts as a supervsisor in the constitutional field. The basic laws are the fundamental laws of china that are unique to the place they developed (hong kong). They have the power to choose a nomenee but also the power to discard one. Cappelletti - attivista giudiziario Article 70: recent reform , constitution and law committe, no one really knows how they act 17/03/22 In chinese laws the first article has usually the same content, as it always contains an oath to the socialist regime. The chinese laws were made to help manage things, it wasn’t supposed to be clear, strict or enforced, because written laws were something new to communities. Through reforms, the law developed along with society. It was called a “scientific legislation” The state council assesses the social needs and advise. The best law possible is a law that regulates the people well. There are laws connected to the national interesta nd administartive powers can exercise legislative authority. Paper: resources, footnotes, around ten pages with questios, answers and comments. Make reference to other classes. Insert also name and student number Notes 17 databases for case law: China court trial online, 21/03/22 guest lecture of Norman P. Ho Confucianism in chinese law: past and present In the cultural revolution confuciansm was considered an onstacle to development of the chinese society. Many of his artworks were defaced and students of conficianism was attacked. The revival of confucianism is recent, children get thaught chinese traditional culture through confucian philosophy. The best example of the modernisation of confucianism can be found in many speeches of Xi Jinping. Confucious is China’s most important philosopher but lived in an era of chaos, during which China was divided in many states. In his view China had “lost the way”, he tries to find the “right road”. He isn’t an abstract thinker, he wants to come up with a total philosoph to deal with practical problems. What is the right way to do so? The confician way is to try to chnage the people first, to chnage their hearts. Confucious says that ritual is the answer. Before him ritual refers to speficic events that have a set of rules (clothes, manners), confucious sais that ritual also refers any civilesed and ethical conduct. Rituals are in nature morally correct and if people’s hearts would accept them, they wouldn’t be selfish anymore. Rectification of names: people have many names. In a confucian view each name carries moral and ritual obligations, requirements and expectations, and we have to live up to them. Ruling by virtue v. Ruling by laws An ideal - civil litigation is essential. Family issues should be discussed in families. When law and family obligations conflict? The obligation of families are considered more important than legal obligations. e.g. to conceal for my son’s crime is not a crime Mencius’ views on human nature and implications on chinese thought. Poeple by nature are good and capable, therfore humans conduct a morall correct behavior. Challenge from the legalists, they unified China under the Xing dinasty, they prosecute confucianists. The Han dinasty chooses confucianism as its main philosophy, it begins the confucianization of laws, they inject the existing laws with confucian morality. A confician approach to jurisprudence consists in using the spirit of animals to decide cases. This text contained teachings on how to govern. This text would outweight a statute in importance, it would be a higher source of law in the Han dinasty. The Apex of confucianisation was in the Tang dinasty with the tang code of 653 AD. Confucianism’s impact on modern chinese law? Modern chinese law is an amalgam of traditional chinese tradition, soviet law, continental laws and western law. The Tang code Preface is often mentioned by speeches of president Xi Jinping 22/03/22 The most relevant school and doctrine of chinese law in the west resides in France, even though italians first came to china. The people have the power to supervision, there has to be transparency. In many cases the actions of people chnage the judgements of people that were wrongly convicted. The idea is that the public opinion has supremacy. Constitution section 8 → regulations on courts at different levels (supreme curt, high people tribunals, intermediate people tribunals, basic people tribunals). The courts are organs of the state and have to control the lower courts. Notes 20 National security in chinese constitutionalism since 1949: the people’s republic of china was founded on an interim constitution also called 1949 common programme. In 1949 the leadership of the CCP is much weaker than afterwards, and the parties has more political power on the country. At that moment the state couldn’t be socialist because capitalism was taking over. The common programme has many provisions but some of the most important are the need to go trough a liberation war, to abolish the imperialist priviliges and bureaucratic capitalism, to participate in the international campaign of peace and democracy and antiaggredsion, and finally to defend independence and integrity of sovereignty and territory of china, to safeguard all fruits of chinese people’s revolution and all legal rights and interests. All of these articles draw the feara nd insecurity and identify the enemy right away. In 1954 we have the first socialist constitution of China. This constitution was built using as model the ideals of Stalin. It mentions the people democratic dictatorship, which corresponds to the people dictatorship of the USSR constitution. The term was modified because they didn’t want to copy and paste. In another paragraph we have the mention of the struggle against both internal and external enemy, the need to oppose imperialism and the enemy of the people within each ethnic group, the need to repress all treason and counter-revolution, the need to forbid capitalists from damaging public interests, mainly in national economy, the need to forbid any attempt of uding private properties to do any damage tot he public interests and lastly, the need to defend the fruits of people’s revolution and state-building, to safeguard safety of sovereignty and territory of China. Another constitution was promulgated in 1975 with the constitution of china, also known as the constitution of cultural revolution. This constitution dictated the proletariat dictatorship, the idea of continuous revolution, the contradction of class struggle, the danger of capitalist restoration, the threat from the imperilaism and socialist imperialism to overturn or invade China, the contradiction between the enemy and us, preparing for war and famine. In the matter of national security, the idea is the one of the 1954 constitution, the expression used is the same. The next constitution is the transitional constitution to the reform and was promulgated in 1978. This constitution insisted on the continuous revolution under the proletariat dictatorship, it identified the class struggle, the danger if capitalisr restoration, the threat from the imperialist and socialist imperialists to overturn to invade china and more. The final constitution is the “reforming” constitution of 1982, which mentioned the people’ democratic dictatorship, the class contradicition, hostile enemies and to forbid many things: any repression or discrimination against any ethnic group of people, any occupation to socialist public property, any disturbance to socialist economy order and any damage to socialism in general. To consolidate the national defense, to safeguard the motherland, to protect the peaceful labouring of chinese people, to participate in the state-building effort and to take efforts to serve the People. The anti-secession law and its constitutional foundation: how does constitutional law respond to the secession? The frist thing to mention is article 8 of the anti-secession law of 2005, which basically says that in the vent of the Taiwan independence, secessionist forces schould act under any name or by any means to cause the fact of Taiwan’s secession from China, or thta major incidents entailingTaiwan’s secession from China should occur, or that possibilities fro a peaceful reunification should be completaly exhausted, the state shall emply non-peaceful means ad other necessary measures to protect China’s sovereignty and territorial integrity. “Expressing the sacred” is the term to refer to the territory of China. Since the 1982 constitution of China, Taiwan is considered part of the sacred territory of the people’s republic of China. It is the inviolable duty of all Chinese peope, including our compatriots in Taiwan, to accomplish the great task of reunifying with the motherland. National security ....Evolution of constitutional approaches adopted by the central government (the centre) over the HK SAR: the semi-constitution fully respects the constitutional promise of OCTS. The responding monitions from the four drafting professors on te judicial review case, mentioning the right to abode cases (HK SAR courts tried to decide the decisions of the provisional legislative congress unconstitutional) and the Chong Fung Yuan Case (the HKSAR administration sought for the standing committee of the NPC’s Notes 21 interpretation on the HKSAR basic law). In 2014 we have the Watershed, during which the overall jurisdiction and the constitutional framework for HKSAR became a joint of the 1982 constitution and the HKSAR Basic Law. Through local political reforms, the constitutional patriotism explicitly claimed and firmly required from the centre as the core criteria in political virtues of politicians in HKSAR. → Hong Kong national security law: the law of the people’s republic of China on safeguarding national security in the HK secial administrative region, the core establishment of the bypass of the common law system whihc is under the basic law of HKSAR and the establishment of commission of national security. National secuirty in the emerging cyber laws: about cyber sovereignty we have the extension of the concept of sovereignty to include all aspects of the cyberspace called “cyber soverignty”. The Government’s desire is to exercise control over the internet within their own boarders, including political, economic, cultural ans technological activities. In international law we have the UN resolution on state responsibility on cyber actions, which only survives as a draft since 2019. In 2016 we have the cybersecurity law requiring network operators to store select data within china. Conclusion: accomodation of national security in the constitutional value system, which remians an open question. Answers could be the socialism and integrity of sovereignty and territory as conventional security targets. There are still tensions between national security, fundamental rights protection and rule of law. 22/11/21 guest lecture by Ivan Cardillo, university of Zhongnan (China) Legal tradition in motion: encounters between China and the West When we enter dialogue with another type of society, we have to know our social identity. IF this is not present, the communication isn't possible → this is the problem with colonialism (transplant of law and society). How do we approach a diferent legal culture? By knowing our own's. This is the concept of "pre- understanding" (=to have an idea in our mind). We have to open to discussion. Most times when these communications happen, one of the most important factors are languages and transaltions. The most relevant people tht worked on this matter are: Notes 22 Yan Fu = transaltor of western works in China, he worked on the transfer of knowledge Montesquieu = wasn't keen to eastern tradition (contrary to Voltaire) The spirit of laws In China, from the midsts of the 19th contury, the problem of assimilating western ideas was internal. The aim of chinese leadership wants to solve western ideas → socialism is a western idea. Montesquieu was right on the fact that Chinese culture is very strong (it cannot be erased, even if they lost in battle, they were the winners) and on the idea that chinese society is strongly based on families (the family is at the center, there are five relationships and duties of obedience organized in a hierarchical way, at the top there is the emperor). In China confucianism is still alive even after the cultural revolution, it's part of the cultural identity of China and comprises socialism. Yan Fu translates "the spirit of laws". He creates a new word based on Mont. book that translates the word "law" in Mont. view, not in its full meaning. In chinese context the word can be translated in reason, rite, law and system. What kind of law does Yan Fu have in mind? Development of chinese law → Yan Fu's transaltion came in between the passing from traditional to modern law. Through chinese dinasties, law kept developing in different ways. The last dinasty was the Quing dinasty in 1902 witht he fall of imperial china. From here now, we talk about modern-contemporary China: transplant transplant the socialist system Characteristics of chinese traditional law → secularization of written law, political nature, hostile law, confucianization of law, family standard. The western view of eastern tradition does not correspond to reality. In the 15th and 16th century, european explorators traveled the world and documented oral cultures. With colonization european culture was transplanted, but with China the case was different. Western explorators found a developed society with written laws, so they seeked out for accomodation of law. The jesuits, whose job was to convert people to catholicism, started making chinese people part of catholicism , they started showing them in paintings and representations. The written language of China made possible the secularization of written laws = the chinese term stands for the action of writing → (12) Among major civilizations, the relationship of religion and law in China is strikingly different: no one at any time has ever hinted that any kind of written law, even the best written law, could have had a divine origin. Confucious always refused to talk about supernatural phenomena. In the "books of Documents", one of the most important chinese legal classics, we have a similar idea to humanism, so to put the human in a fundamental position, law as a people based, people oriented (this is still used on political level, the idea of people at the center is compatible with communism). An emperor is son of the sky and a good emperor only when people are healthy and happy. The Chinese code is called "the harmony of man and nature" and is referred as the "tang code" (from the Tang dinasty). The rules were codified in a system of bahaviors and the "wise" emperor (that lead the people by example), would go in a field and work. The people would miror his actions. Chinese philosophy is based on five elements that are at the basis of the five punishments: death, castration, amputation of one or both feet, amputation of the nose and tatooing (with fire). The idea of law school was different from Irnerio's, they had legal academys. Law is a model, pattern and standard.