EACS-2016. Book of Abstracts

Law 21st Biennial Conference of the European Association for Chinese Studies 206 Greatrex Roger (Centre for East and South-East Asian Studies, Lund University) Correcting Judicial Error in the Ming Dynasty Key words: Ming dynasty, law, Wang Gai, redirected cases, judicial error The redirection of judicial decisions (bo’an 駁案 ), whereby a higher instance returns a flawed verdict to a lower instance for reconsideration, has a long history in Chinese law. There are a number of compilations of redirected cases for the Qing dynasty, among them the well-known Bo’an xinbian 駁案新編 (1781). The case compilations allow us to understand how and why redirections were made, often with regard to correct sentencing. The situation is different for the Ming dynasty and very few compilations of legal cases have survived. However, one collection of redirected judicial decisions for the mid-fifteenth century exists, namely theWang Gongyi gong bo gao 王恭毅公駁稿 byWang Gai 王槩 (1418–1474), who served briefly, at the end of his career, as Minister of Justice in 1473. The value of the work is that, after giving a clear introduction to the existing sub-regulations for redirection and rectification (bozheng shi 駁正式 ), it provides several hun- dred cases, arranged under ninety-two headings, exemplifying corrections of judicial error. As in many Qing dynasty cases, the redirections compiled by Wang Gai include frequent examples of false accusation (wugao 誣告 ). However, unlike the Qing dynasty cases, Wang Gai includes redirections based on evidentiary issues, misdemeanors perpetrated by court officials, misinterpretation of existing regulations, and judicial negligence, resulting in a number of cases in the quashing of the convictions handed down on innocent defendants. My paper first briefly introduces the sub-regulations for redirection and rectification, before preceding to present and analyse three groups of cases: false accusation and forged documents, illicit sexual conduct (jian 奸 ), and trade in brides, i.e. trafficking. I conclude with a brief comparison of Ming and Qing procedures, followed by some conclusions concerning the entire issue of the redirection of judicial decisions. Noesselt Nele (University Duisburg Essen) Philosophical Foundations of fazhi under the Fifth Generation Key words: rule of law, narrative identity, legal profession, 4th plenum, governance in China The establishment of a fully-fledged legal system, subsumed under the overarching frame of fazhi or yi fa zhi guo has become one of the predominant policy slogans under the fifth generation of Chinese leaders, headed by Xi Jinping. The Fourth Plenary Session of the 18th Central Committee, which was exclusively dedicated to “comprehensively advancing the rule of law” in China, has widely been heralded as the begin of a new era in China’s transition process towards rule of law (and, in the long run, democracy). However, the terminology used in the Fourth Plenum’s official declaration seems to indicate the opposite turn, as the main declared goal is the construction of “socialist” rule of law with “Chinese characteristics”. This revokes memories of the decade-old debates on the assumed discrepancy between “rule of law” versus “rule by law”. Does the terminological reference of the Fourth Plenum thus stand for a return to Marxist legal philosophy and a re-strengthening of the “socialist” identity of the Chinese party-state? Or does the fifth generation promote a new type of legal philosophy that does not directly copy the “Western” notion of rule by law but shows some inclinations towards “democratic” legal norms and standards? By undertaking a decryption and interpretation of the notion of fazhi this paper seeks to excavate the main conceptual ideas associated with fazhi under the fifth generation and to identify the ways this reference to fazhi is inscribed into China’s official governance policies and thus operationalized for political practice. Pissler Benjamin (MPI Hamburg) The Role of the Supreme People’s Court in Law-Making by Means of Judicial Interpretations in the People's Republic of China Key words: law-making in China; People’s Supreme Court; rule of/by law; 4th plenum From a comparative perspective, judicial interpretations issued by the Chinese Supreme People’s Court (SPC) represent a form of law-making that is characterized by several exceptional elements and