Equity in the Chinese law: Is origin and transformations.

Lin, Xi (2008) Equity in the Chinese law: Is origin and transformations. PhD thesis, London School of Economics and Political Science.

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Abstract

This thesis is about equity in the Chinese law. In the classical Chinese literature, it was referred to as qingli, which means 'social obligations' to balance the rigidity of positive laws. Like its Western counterpart, this equity entails a twofold meaning: (1) the moral principles that have been into the positive laws (which Huang referred to as 'official representation') and (2) in judicial practice, the correction of hardship that arises out of the deficiency as inherent in positive laws. As far as its historical evolution is concerned, this thesis examines three consecutive periods, namely imperial China (221BC to 1911), revolutionary period (1911-76) and reformist era (1978-present). In imperial China, equity followed a path similar to its Roman counterpart in that there was a harsh law first, into which equity was gradually incorporated, until it reached its maturity in the Tang Code of 653 AD. This imperial construct was swept ruthlessly away by the revolutionary thunderstorm in the early 1910s. In the midst of this tempest, the communist effort to seek an alternative to both traditional and imported models culminated in creating a legal system called People's Justice. Equity in this period was reinterpreted as mass participation and mobilisation. However, Mao's idealism not only turned the whole nation into chaos but also devoured its own devoted followers. This was partly the reason why in 1978 the Deng-led government unanimously held that China should relink with the outside world. In this state-led integration to global capitalism, equity underwent its second turn, now defined as local contextualisation of the rapidly formalised and westernised laws. The conclusion duly analyses both predicaments and opportunities for further development of equity in China. It calls for as much a reinvention of traditions as an attention for local contexts to construct a modern equity in China.

Item Type:	Thesis (PhD)
Uncontrolled Keywords:	Law, History, Asia, Australia and Oceania
Sets:	Collections > ProQuest Etheses Departments > Government
URI:	http://etheses.lse.ac.uk/id/eprint/2974

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