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On September 21, 1949, the First Plenary Session of the Chinese People’s Political Consultative Conference was held and Gong Tong Gang Ling (the Common Program) was adopted as the provisional constitution and used as the fundamental law of the state at the beginning of the founding of the People’s Republic of China (PRC). Under its guidance, the legal system was established at the beginning of the founding of the People’s Republic of China by making a series of legislation, which had guaranteed the operation of the state apparatus, the stability of the social order, and the normal work and life of the people. Gong Tong Gang Ling (the Common Program) not only played the role of the provisional constitution, but also laid a solid foundation for the legal civilization of the new China.

Before the Opium War, the jurisdiction of the Qing government was integrated and independent. According to Da Qing Lv Li (the Laws and Precedents of Great Qing), the legal cases involving foreigners were settled according to the provision of “Hua Wai Ren You Fan” (the invasion by foreigners).

An epoch-making meeting was opened by the Chinese Communist Party from December 18 to 22 in 1978, which was known as the 3rd Plenary Session of the 11th National Congress of the Chinese Communist Party. This meeting attracted enthusiastic responses. At this meeting, leftism was abandoned and the focus of the work of the party was shifted to socialist construction according to its resolution. At this meeting, importance was also attached to the construction of legal system and it was announced in the communique that “the civic rights stipulated in the constitution are inviolable, so it must be guaranteed. In order to ensure people’s democracy, the socialist legal system must be strengthened, institutionalized and legalized, because it will not only make the legal system more stable, sustaining and authoritative, but also ensure that the law may be enforced strictly and that the law breakers may be punished. From now on, the legislative work shall be put on the agenda of the National People’s Congress and its standing committee. In addition, the independence of judicial and procuratorial organs shall be maintained so that they should be loyal to the law and the system, be loyal to the people’s interests and be loyal to facts and truth. It must be ensured that the people are equal before the law and that no one has the privilege above the law.” This meeting not only announced the arrival of a new era of socialist legal system and pointed out the overall direction of constructing a socialist legal state of “Fa Zhi” (the ruling of law), but also greatly inspired and encouraged the Chinese people.

The law of the Qing Dynasty which was centered on Da Qing Lv Li (The Laws and Precedents of Great Qing) had shown a complete pattern of Chinese feudal law; however, it had fallen behind the social development after being applied for almost two hundred years, so it must be changed. After the Opium War, it was no longer able to regulate the new social relationship by the outdated law.

In April 1927, the clique headed by Chiang Kai-shek betrayed the national revolution and established a national government in Nanjing, which was generally called “Nanjing National Government”. Nanjing National Government boasted following the instructions of Mr. Sun Yat-sen, set up the political system of “the separation of powers”, and implemented the one-party dictatorship of Kuomintang under the name of “Xun Zheng” (Political Tutelage).

In Ancient China, the absolute monarchy centered on the king had been established ever since China entered into the class society and the states were founded; therefore, it was of a long standing. It was recorded in the documents of Shang (1600 B.C.–1046 B.C.) and Zhou dynasties (1046 B.C.–771 B.C.) that the words of “Yu Yi Ren” (Tian Zi: the son of Heaven or the emperor) was particularly used by the king to refer to himself and to symbolize his supreme position and absolute privilege. All the national activities, such as punitive expeditions, sacrifices, etc., were named “Wang Shi” (the king’s affairs) to suggest that the king was the state, and that the king and the state were an organic whole. In the oracle inscriptions of the Shang Dynasty on tortoise shells or animal bones, the words like “Wang Ming” (the king’s commands), “Wang Ling” (the king’s orders), and “Wang Hu” (the king’s words) could be found repeatedly, which had indicated that the national affairs were conducted according to the orders of king who not only had the supreme administrative and military power, but the supreme legislative and judicial power.

The modern transition of Chinese law does not start from the legal reform in the late Qing Dynasty as people have commonly assumed, nor is it the result of the endeavor of some of the ministers like Shen Jiaben who are in charge of the legal revision. In fact, it has been made possible for this great historical process to be fully accomplished only by the long time exploration and striving of several generations of social elites like Lin Zexu, Wei Yuan, Li Hongzhang, Kang Youwei and Sun Yat-sen. It is only after repeated argumentation and laborious struggles that the direction and the road of the transition have been chosen and some of the people with lofty ideals even have sacrificed their lives for it. In the process of the modern transition of Chinese law, “Yang Wu Pai” (The Westernization Group), “Wei Xin Pai” (the later Reformists) and the bourgeois democrats all have made their contributions.

As the founder of Confucianism, Confucius was the pioneer and instigator of “no litigation”. He once declared solemnly that “in hearing litigation, I am the same as anyone else. What is necessary, however, is to enable people to have no litigation”. His disciple, You Zi, also said, “The function of ‘Li’ (rites) is to achieve harmony, which was praised by all of the previous emperors.” From this, it could be seen that a harmonious society with no conflicts was pursued by Confucianism. With the domination of Confucian thoughts, it had become the feature of Chinese traditional culture for thousands of years to cherish harmony, to maintain neutrality and to advocate the Doctrine of the Mean, while “no litigation” had always been the ultimate aim pursued by rulers. It was praised in the Confucian classics that the era of Yao and Shun was a time with no litigation because Shun himself was an expert in settling lawsuits and terminating conflicts. It was recorded in “Wu Di Ben Ji” (Chronicles of Five Emperors) in Shi Ji (The Records of the Grand Historian) that in Shun’s time, “the farmers in the Mount Li always argued about the boundary of the farmlands while the fishermen on the fishing spots”. To settle these problems, Shun had personally farmed in Mount Li and fished in Lei Marsh to teach people by his own behaviors and speeches, and in the end, “the border disputes in Mount Li were settled by people’s compromise, while the disputes about fishing spots were settled by people’s concessions on Lei Marsh”. Due to this, Emperor Yao at the time had recognized the value of Shun and abdicated the throne to him. According to “Zhou Ben Ji” (Chronicles of Chou) in Shi Ji (The Records of the Grand Historian), when Emperor Wen ruled the Zhou State, he “was resolute in his kindness, reverent to the old and compassionate to the young, and he was a sage who had paid homage to the people”. Thus, the whole state was influenced by him, and in Zhou state it had become a custom for “the farmers to yield lands on the boundary paths and for people to show respect to their elders”, therefore, “people were living harmoniously and the ruler was praised by everyone”. Consequently, the feudal lords had all come to Zhou State to “have the cases settled without bias” when they were in disputes. For instance, people in Yu and Jui State had come to Zhou State for the settlement of their disputes, and they were edified by the customs of “yielding on the boundary and respecting the elders” in Zhou state. Finally, they all felt ashamed and said, “‘we are striving what have been considered shameful by the people of Zhou. Then why are we going to meet them? This will only bring humiliation to us.’ In the end, they returned, made concessions to each other and ended the disputes”. The main reason why the reigning of Cheng and Kang had been praised in the history books was that “the world (during their reigning) was peaceful, so corporal punishments was abolished and was not applied for more than forty years.”

Humanism was the philosophic foundation of the ancient Chinese legal system and legal culture.

During the Xia (2070 B.C.–1600 B.C.) and Shang dynasties (1600 B.C.–1046 B.C.), the national law and “Tian” (heaven) were closely connected, thus, the primitive religion had permeated the field of politics and to some extent, governed the national activities, with the result that the unique views of “Tian Dao” (The Way of Heaven), politics and law were formed. After Shang Dynasty was wiped out by Zhou, although some adjustments were made in the views of the people in Shang dynasty about “Tian Dao” (The Way of Heaven), the belief that God was the spirit of ancestors was negated, and the belief that only the most virtuous would be supported and made kings by “Tian” (heaven) was accepted, which was described in the sentence that “‘Huang Tian’ (heaven) is has no partial affections and it only helps the virtuous”. Undoubtedly, although a political color of realism was added by such adjustments, it had still propagated the supreme authority of “Tian” (heaven), and attributed the ruling by the people of Zhou as “Tian Ming” (mandated by Heaven).

Making convictions by law and making judgments by analogy were totally contradictory with each other in form; however, they had actually existed in the development of Chinese ancient law and run through the thousands of years of progress of legal system, although there were different emphases for different historical stages. For this reason, the development of the legal system had been restricted by the adjustment and evolution of this contradictory relationship, which had formed the unique tradition of the Chinese law.

Since ancient China had entered the class society along the way from family to state, the clan and lineage relationship had exerted strong influences upon the various aspects of the society and the nation. The high-level combination of patriarchal clan system and politics in especial had led to the particular system of the integration of the family and the state, and the intimates and the nobles. More specifically, the family was the miniature of the state, and the state the amplification of the family. Besides, the constitution, political structure and national activities of the state were all based on the dual principle of lineage and politics. When China entered the feudal society, the political system in which the family and state were integrated was changed, but the family was still the essential unit of the society, and the patriarchal power to manage a clan or a family was still acknowledged by the state. Patriarchs were authorized to exercise some functions of grass-roots administrative organizations, such as pressing for land taxes and maintaining public order. Due to the protection of law and the economic foundation on which it had relied, the family-oriented social structure remained stable for over 2,000 years, and it had become another important backbone of the feudal autocratic regime.

By the joint efforts of the legal elites like Shen Jiaben during the late Qing Dynasty, the new legal system was set up by modeling on the continental legal systems, meanwhile, the out-of-date feudal legal system characterized by “Wu Xing” (the five forms of punishments used in later periods: “Chi”: beating with light sticks; “Zhang”: beating with heavy sticks; “Tu”: imprisonment; “Liu”: life exile; and “Si”: death penalty), “Bi Fu” (legal analogy) and the non-separation of justice and administration had been abolished, and the ancient Chinese legal tradition like the integration of “Li” (rites) and law, “Zhu Fa He Ti” (the integration of various laws), “Zhong Xing Qing Min” (stressing the criminal law and neglecting the civil law) was changed. In addition, the legal principles and systems which had symbolized the modern western legal civilization including “Zui Xing Fa Ding” (a legally prescribed punishment for a specified crime), humanitarian punishment and judicial independence were introduced, which had initiated an important step in the modernization of Chinese legal system. But the modern transition of Chinese law had not been, and in fact, could not have been completed by the law revision during the late Qing Dynasty, because the special social environment, the upheaval political situation both home and abroad, and the resistance of the conservative forces in the Qing imperial court itself had made the law revision during the late Qing Dynasty more difficult, hesitated and irresolute. So some of the legal principles, such as people’s sovereignty, “Fa Zhi” (the ruling of law), equality before the law, the holiness of the private rights, the presumption of innocence, and the system of the protection of human rights had not been made and put into practice. Besides, in the newly revised laws, there were still not only many backward feudal contents, but also the problem of putting the civilized elements of the introduced western legal systems into legal practice. All these had required the succeeding Republic of China to go forward by following the road of modern Chinese legal transition opened up by the law revision during the late Qing Dynasty.

As an epitome of ancient Chinese jurisprudence, “Lv Xue” (the study of statutory laws) had been a miracle in the garden of ancient Chinese legal culture, and the forms and achievements of its development had become a key criterion to measuring the ancient Chinese legal culture. In the ancient Chinese “Lv Xue” (the study of statutory laws), the constraint of religious theology had been cast off in quite an early time, but the direction and level of development were still strictly controlled by the autocratic state. Thus, “Lv Xue” (the study of statutory laws) was basically conducted by the official authorities and the private commentaries on law were only regarded as supplements to the official commentaries. The major task of “Lv Xue” (the study of statutory laws) in ancient China was to expound the legislative intents and legal principles of a nation, to annotate the conceptual terminologies of law, to comment on the origin, the success and failures and the evolution of legal provisions, and to reveal the relationships between “Lv” (criminal laws) and “Li” (precedent) and between other forms of law, in an attempt to achieve a uniform application of law so that a highly unified national legal system and political rule could be maintained.

The problem of legal system began to draw the attention of the world legal field since 1884 when the famous Japanese jurist, Hozumi Nobushige had put forward his proposal that the world legal system should be divided into “Indian Legal Group”, “Chinese Legal Group”, “Islamic Legal Group”, “British Legal Group” and “Roman Legal Group”. In 1923, the world legal system was further divided into 16 groups by American scholar Wigmore, which had included the Chinese legal system. The theory had not only exerted a profound influence, but also provided an important foundation for the research on the Chinese legal system at that time.

In the continuous over 4,000 years of Chinese legal history, the internal connections and interrelations of change and development could be clearly seen. It was almost a common practice to have the advantages and disadvantages of the legal systems of preceding dynasties carefully investigated and their experience and lessons drawn at the beginning of legislation by the founding rulers of newly established dynasties, and to form new legislative ideologies and principles or to implement the necessary legal reforms. As the legislative activities of successive dynasties were mostly conducted on the basis of summarizing the past experience and focusing on the present conditions by historical comparison, the legal codes formulated would still be slightly different in contents and innovative in structure compared with the preceding ones, despite their consistency in the fundamental nature. Therefore, the legal history of ancient China could be considered as a legal history of historical comparisons, which had started from the Shang Dynasty in about 1600 B.C. Just as Confucius had said, “The Yin dynasty followed the rites of the Xia: wherein it took from or added to may be known. The Zhou dynasty followed the rites of Yin: wherein it took from or added to may be known.” So, “Li” (rites) in ancient China had a broad coverage, not merely referring to rituals and etiquettes, but also including the laws and regulations of the state. For this reason, Confucius’ inference was really insightful and practical to the reality of Chinese legal history. He had not only revealed the evolutionary relations between “Li” (rites) of Xia, Shang and Zhou dynasties, but also pointed out that the development of “Li” (rites) in the three dynasties was exactly carried on and completed by comparisons. After all, only from the perspective of comparison, can the gains and losses be grasped. Thus, in a sense, Confucius was the first person who had advocated, supported and put the principle of the comparative study of legal history into practice.

In China, the ancient form of the character “Fa” (law, punishment) was “灋”. According to a record in Shuo Wen Jie Zi (Origin of Chinese Characters) written by Xu Shen, “‘Fa’ (灋) means punishment, which seemed as even as the surface of water. The right part of the character is composed of ‘廌’ (an animal in Chinese legend, which can tell right from wrong) and ‘去’ (to remove), which means to remove the things that are not right”; the left part of the character was “氵”, which symbolizes “water” and means that punishments should be as even as the surface of water, or in other words, punishments should be carried out impartially. Therefore, it had not only shown the expectations that the people in the ancient times had about law, but also the value that the law itself was supposed to have, and the standard of self-discipline for the ancient judicial officials. In Western Han Dynasty, Huan Tan said, “The administration of prison is like the administration of water”, and the law should be enforced by justice and impartiality. In Chinese, the character “Fa” (law) was composed of “廌” and “去”, which had implied both justice and righteousness. So, it could be seen from the origin of the Chinese character that “law” had carried a connotation of impartiality and justice by itself.

Among the famous legal systems of the world, the continental legal system, with a long history and great influence, is characterized by its emphasis on the authority of the statute law of the state, its focus on the completeness and the orderliness of the classification of the systems, and its strict restrictions upon the settlement of the lawsuits by judges according to statutes instead of legal precedents. On the contrary, in the Anglo-American legal system (a legal system in England and most of the U.S.) the court decisions are regarded as the common laws which are applied nation-wide, therefore, it is also called the Case Law system. But the statute laws also exist in the Anglo-American legal system and they have become the key bases of criminal judgments by gradually replacing the legal precedents especially since the twentieth century. However, whether civil and criminal substantive laws or procedure laws, in the Anglo-American legal system, they were formed by the induction of legal precedents, so a unified code was lacked. The Chinese legal system is similar to the continental one in the aspect of emphasizing the state statutes and regarding code as the sources of basic laws, moreover, it has also shared a common ground with the Anglo-American legal system in regarding the legal precedents in convictions as the supplements to statutes. However, the Chinese legal system is unique with its own obvious features, which are determined by the state condition, social convention, cultural tradition, national psychological state and the special natures of thinking modes in ancient China. In addition, it is gradually formed in the struggle to meet the needs of survival and development of the Chinese nation. As far as the mutual complementation and integration of statute and legal precedent are concerned, it is one of the features as well as the advantages of the Chinese legal system.

“Li” (rites) is a social phenomenon in ancient China, which can be dated far back to early times, and which had existed throughout the ancient history of China. The concepts and the principles of “Li” are now viewed as the core of Chinese traditional culture, which have been influencing people’s social lives in every aspect, and have been adjusting the relationships not only between individuals, but also between individuals and their families, individuals and their state, and even the relationship between the individual and the universe. The assimilation and integration of “Li” (rites) and law have constituted the most essential characteristics of Chinese legal system and the peculiar Chinese legal culture.

In this paper, we address the problem of designing jointly the linear transmitter and receiver for the downlink of multiuser MIMO system, using minimum the total mean square error criterion (T-MMSE), subject to a total transmit power constraint. We show that the optimum transmitter and receiver under such design criterion could be realized through a joint iterative algorithm. The convergence of the proposed algorithm is proved. The analysis and simulation results have both shown the feasibility of this new method