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37 Advocate (Vancouver) 317 (1979)
Divorce Chinese Style: Confucius v. Mao

handle is hein.barjournals/advvba0037 and id is 317 raw text is: Tim Advocate .317 Divorce Chinese Style: Confucius v. Mao by R. M. Elliot** One of our group's major objectives during the visit to China last spring was to see Chinese law in action. Given a choice, we would, of course, have preferred a criminal trial, but the choice was not ours to make. The standard fare offered by the Chinese is a divorce case and it was the standard fare that we were given, albeit with a slight twist. While most foreigners in China see the court of first instance in operation, we were taken to witness proceedings at the appellate level. However, as will become apparent from the description which follows, it is doubtful that things would have been much different had this twist not been added. The Chinese describe their system as a two trial system - what we saw was simply the second or higher level trial. The only significant difference between the two proceedings seems to be that, whereas at the first the bench consists of one judge and two people's assessors, at the second it consists of three judges. This article is intended primarily to describe, as fully and as objectively as possible, what transpired at the trial we witnessed.* It is hoped that through this description the reader will be able to gain some under- standing of the way in which the courts in China function, at least in civil cases. In order to facilitate this understanding, I have included a few introductory remarks about the institutional setting of the case, the law governing divorce in China and, as they were described to us by our hosts, the factual background to the case. By way of conclusion, and in order to give some perspective to the reader's thoughts about the Chi- nese legal system, a few general observations will be made on three of the more notable features of the proceedings. The Institutional Setting China's courts are divided into four basic levels. At the apex is the Supreme People's Court which sits in Peking. The most recent (1978) Constitution of the People's Republic of China provides that this court is responsible and accountable to the country's supreme legislative body, the National People's Congress, and that it supervises the administration of justice by people's courts. These operate both at the provincial level and, in the case of the three centrally controlled municipalities of Tient- sin, Peking and Shanghai, at the municipal level. Third from the top come the Intermediate People's Courts. The bottom level is occupied by the Thea uthor is indebted to two other members of the group, Kit Rigg and Tom English, for supplying him w% ith their notes on the proceedings. Without the help of these notes the description of the trial would have been much less detailed. * Mr. Elliot is an assistant professor at the Faculty of Law UBC.

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