Exploring the Impact of Traditional Chinese Property Culture and Filial Piety in Hong Kong, Taiwanese, and Chinese Law

Today, the three Greater Chinese jurisdictions of Hong Kong, Taiwan, and China all embrace Westernised property law principles, prioritising individual and private property ownership. However, in ancient China, property held collective value as ‘family property,’ recognised by both law and tradition. This approach was rooted in Confucian values, emphasising the family’s central societal role. Property ownership was intricately woven into networks of human relationships, serving to uphold collective identity and preserve a moral order centred on filial piety. On the surface, this traditional Chinese legal culture appears to have been lost. The three jurisdictions stemming from this shared cultural heritage—China, Hong Kong, and Taiwan—have developed Westernised legal systems amid varying socio-political contexts. Nevertheless, it is intriguing to observe that traditional Chinese property culture has persisted in some unique ways. These jurisdictions seamlessly integrate historical, cultural, and political influences from both Chinese and Western legal traditions, adeptly balancing societal norms and expectations. They have employed Western legal concepts, including common law principles, to preserve and advance traditional Confucian-influenced rules and practices.

Confucian ethics and social order revolve around kinship, particularly the cardinal virtue of filial piety, which emphasises deference and care for parents, lineage continuity, and ancestor veneration. According to Confucian beliefs, property should be used to venerate ancestors, support parents, and provide for spouses and children. This perception of property aligns with the ancient Chinese social structure, under which families (which could easily span three or more generations) resided together and shared common property such as land and houses. Resources were collectively owned and engaged with within a hierarchical structure, with the family head having the sole authority to use them for the family’s collective benefit.

Traditional practices like these were fundamental elements of China’s legal system until the nineteenth century, when colonial powers began expanding their influence to the ‘Middle Kingdom.’ Hong Kong became a British colony and adopted a common law system. Taiwan, ceded to Japan by China’s imperial Qing government, experienced a transition from traditional Chinese law to modern Japanese law, which was notably influenced by German legal codes. China itself initiated legal reforms during the Qing dynasty’s decline, and the monarchy’s eventual fall marked the end of imperial China’s legal codes. However, the development of Westernised legal systems did not eradicate the influence of Chinese traditional legal culture and Confucian ethics. Even with significant legal transformations, traditional practices and cultural values continue to influence Chinese societies, particularly in family relationships and property matters.

The integration of traditional Chinese practices into Hong Kong’s common law framework has been a long process. When Hong Kong first became a British colony, efforts were made to preserve local customs, particularly in the rural New Territories region, leading to the recognition of those practices as ‘Chinese customary law.’ Legal recognition was extended to traditional institutions of communal land ownership known as tso and tong. Under the terms of such institutions, land is collectively owned, with male descendants, both current and future, acknowledged as beneficiaries who have a vested interest in the land under the institution’s name. Family rules typically mandate that the beneficiaries channel the income generated from the property to aid family welfare and support religious activities honouring common ancestors. Despite conflicts with principles such as the rule against perpetuities, Hong Kong courts have recognised these traditional institutions as trusts due to their similarities with the English trust, drawing on common law principles.

In addition to codification of traditional practices, the influence of traditional Confucian values permeates Hong Kong’s legal landscape, especially in property disputes within families. In England and Wales, familial property disputes are often resolved through informal trusts giving effect to the presumed intentions of the parties. This has traditionally excluded cases where parents are presumed to intend to gift property when funding their child’s acquisition (i.e., presumption of advancement). However, in Hong Kong, courts may factor in Confucian values like filial piety when family members financially assist each other in property purchases. For instance, in an important case, a father transferred legal ownership of the family home to his son, who claimed the father’s intention was to gift him the property due to traditional values. When the daughter contested this and cited her financial contributions to the property’s expenses, the court considered it as intended filial practice and did not support her claim for beneficial ownership, highlighting societal expectations regarding children’s financial support for their parents. Therefore, subject to evidence, Hong Kong courts may interpret financial contributions from children to parents as intending to fulfil a filial duty, impacting the determination of property ownership. They may hesitate to see parental contributions to property in their children’s name as simple gifts, despite the presumption of advancement. Notwithstanding the lack of a ‘family property’ concept in Hong Kong’s common law framework, courts’ decisions have at times prioritised cultural interpretations over legal doctrines, revealing a complex interplay between English common law, Chinese customary practices, and Confucian values.

In Taiwan, the incorporation of traditional practices has changed over time due to colonisation and shifts in governance. One such practice, jisi gongye, comparable to tso and tong in Hong Kong, embodies these traditional institutional arrangements. During Japanese rule, jisi gongye was treated as ‘customary juristic persons’ under Japanese civil law, applying laws meant for legal entities due to the unfamiliarity with the trust concept. However, after the Second World War, when Taiwan came under the Republic of China (ROC) rule, jisi gongye lost its formal recognition. The Taiwanese court of the new regime deemed it did not meet the requirements under ROC civil law, which was based on Japanese and German models, to be considered a legal entity. It was not until 2007 that a new law was enacted, marking a significant change. This law granted jisi gongye legal recognition as a special kind of ‘juristic person.’ The status of jisi gongye in Taiwan has fluctuated over time, reflecting the influence of Westernised legal concepts during different historical periods.

Traditional Chinese values have also influenced legal proceedings in Taiwan, especially in property disputes, mirroring the situation in Hong Kong. When children financially support their parents, these contributions are often seen as intending to fulfil filial duties rather than driven by self-interest. Such support may be regarded as a gift, making it challenging to contest children-to-parent property transfers. In contrast, when a mother claimed that the property under her son’s name was a ‘registration with a borrowed name’ and that she was deceived into transferring the title to him, the Taiwanese court rejected the son’s claim of sole ownership despite his residency and advantageous position. The court, giving precedence to the mother’s argument regarding the property’s sentimental value and intended use for familial ancestral worship, emphasised Confucian-based family property norms over individual ownership claims. This highlights how Confucian values, emphasising family ties and ancestral worship, continue to influence property dispute resolutions in Taiwan, illustrating the complex relationship between cultural heritage and the modern legal system in the jurisdiction.

In mainland China, the rural tradition of jitian, where land was collectively owned by clans for ancestor veneration, is believed to be the historical precursor to tso and tong in Hong Kong, as well as jisi gongye in Taiwan. This tradition eventually disappeared as a result of radical land reforms initiated by the communist government since 1949. Despite this, the enduring influence of traditional Chinese legal culture is still palpable in contemporary China. Similar to Hong Kong and Taiwanese courts, the Chinese courts, in cases involving property transactions within families, exhibit hesitation when it comes to considering parents’ financial contributions as outright gifts when buying property in their children’s name. In contrast, contributions from children to parents are more readily viewed as acts of filial respect and interpreted as gifts. This distinction reflects the enduring influence of filial piety in the contemporary Chinese legal system.

In Western academic discourse surrounding Chinese law, some scholars emphasise the influence of Confucian-based traditional Chinese legal culture, contending that certain Western legal concepts must be compromised or ‘sacrificed’ to align with Chinese social relationships. Conversely, another viewpoint laments the loss of autonomy and creativity in Chinese law, arguing that the modern shift towards Westernisation occurred with little regard for the appropriateness of Western-style laws in the Chinese context. Both arguments imply a competition between Chinese and Western legal systems, where Chinese law seems to be caught between the pull of tradition and the push of Westernisation.

My analysis of the legal practices in the three Greater Chinese jurisdictions highlights the need for a different perspective. Traditional Chinese legal culture prioritises collective interests over individual identity, which clearly contrasts with the emphasis on individual ownership in Westernised property law. However, the contemporary legal systems of Hong Kong, Taiwan, and China have absorbed foreign influences in a creative manner. While each jurisdiction has embraced Westernised legal systems and integrated Western legal principles, they have done so with varying degrees of flexibility and accommodation for traditional practices and cultural values. Thus, contemporary Greater Chinese legal systems are shaped by a complex interplay of historical, cultural, and political factors. Rather than perceiving Chinese and Western legal traditions as competitors, these legal systems have adopted a nuanced approach, integrating elements from both while navigating the complexities of societal norms and expectations.

This blog post is based on an article published in the Asian Journal of Comparative Law.