Oleh Shahrizal M Zin. Muat turun fail PDF.
The legal culture in East Asia has its unique distinctive features. The emphasis on the amicable dispute resolution and avoidance of confrontation has its origin in conformity with the Confucian values that influenced political philosophy in pre-communist China. For East Asian countries, the cultural differences regarding dispute settlement raise a serious issue. The legal tradition in those countries is entirely different from the Western ideal of the rule of law. In Chinese legal culture, a dispute is considered an evil in that it disturbs the harmony that governs all of social life. The Chinese believe that it is important to amicably remove the root cause of the potential dispute if it could yield to inevitable long term dispute.
A significant aspect of the Confucian attitude toward dispute resolution is Confucianism’s emphasis on the principle of harmony. For example, even if a party was believed to be in the right, it was better for him or her to be merciful to the wrong party and suffer a little. Forbearance was expected and such behaviour was appreciated and highly praised by Confucius. In Confucianism, a decent man was expected to be gentle, selfless and forbearing. Only an indecent man valued profits. A person preoccupied with his own personal gains and losses was discriminated against by the whole society.
Historical records show that the earliest law in China appeared more than 4000 years ago during the Xia Dynasty, the first dynasty in Chinese history. This long lasting legal history has been labelled the “Chinese legal tradition” and the Chinese legal tradition is distinct from the common and civil law traditions in the West. With these 4000 years of legal tradition, however, China has been criticized as a country with laws but no rule of law. Even scholars who oppose this view may still agree that China was a country with an anti-law tradition. Law has never been central to the Chinese experience. Throughout its history, the concept of law and the notion of the rule of law have never taken centre stage in society until early this century. As early as the West Zhou Period, there were local magistrates known as Tio Ren whose main function was to help settle disputes through amicable means. Since then, mediation has been widely practiced throughout the ancient Chinese feudal society. Profound philosophical and social factor explain the existence and development of mediation in ancient China. The fundamentals of Confucius philosophy that provide the basis for East Asian legal culture are described below.
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