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Law of the People's Republic of China is the legal regime of the People's Republic of China, incorporating the separate legal traditions and systems of Mainland China, Hong Kong and Macao.

Between 1954 and 1978, there was not very much effort within the People's Republic of China to create a legal system. The Communist leadership led by Mao Zedong believed that creating a legal system would restrict the power of the Communist Party of China and create elites which would ultimately harm the socialist revolution.

This policy was changed in 1979, and the PRC has formed an increasingly sophisticated legal system. Though the PRC legal system is a large civil law system, reflecting the influence of Continental Europe legal systems especially German civil law system in the 19th and early 20th centuries.

By contrast, Hong Kong still retains the common law system inherited as a former British colony; and Macao employs a legal system based on that of Portuguese civil law. They have their own court of final appeals and extradition respectively, which are not within the legal jurisdiction of most courts within People's Republic of China, which is only effective within mainland China. Under the system of One Country, Two Systems, their judicial system was kept intact and maintain their independence.

Development of law

China has a tradition of adoption of civil law system. During the Qing Dynasty, for modernization of Chinese law system, Chinese government had hired Japanese legal experts to copy law systems from Japan, which was stemmed from German civil law system. After the establishment of Republic of China in 1911, the Chinese government maintained the civil law system. Although the CCP abolished all legal systems of ROC after 1949, its legal system was deeply influenced by legal system of Soviet Union, which could be regarded as civil law system too.

The development of the current legal system dates from the early-1980's, after the end of the Cultural Revolution. The system has developed slowly and incrementally leading to much incoherence.

Sources of law

The highest and ultimate source of legal norms in the PRC is the Constitution of the People's Republic of China. It establishes the framework and principles of government, and lists the fundamental rights and duties of the Chinese citizens.

Unlike some civil law jurisdictions, China does not systematically lay down general principles in constitution that all administrative regulations and rules must follow. Whereas, in the later promulgated Law of Legislation, it stipulates principles of legislation and the validity and priority of law, rule and administrative regulations. Constitutional provisions, basic laws and laws enacted by the National People's Congress and its standing committee, regulations issued by the State Council and its departments, local laws and regulations, autonomous zone regulations, legal explanations, and treaty norms, are all in theory incorporated into domestic law immediately upon promulgation.

International treaties signed are in practice automatically incorporated into PRC law, they are superior to the relevant stipulations of PRC laws. However, the PRC reserves the right to make reservations to a provision of a treaty.

Unlike common law jurisdictions, there is no strict precedential concept for case law and no principle of Stare Decisis. However, in practice lower people's courts judges often attempt to follow the interpretations of the laws decided by the Supreme People's Court. Moreover, higher courts can use the finality of their judgments on appeals as having a binding effect on the lower court that issued the first judgment or order. With the pursuit for constitutional politics movement, the Supreme People’s Court is required to play a more important role than ever.

PRC courts do not have the power of judicial review. In cases where there is a conflict of laws, the process to resolve this conflict is outlined in the Legislation Law of the People's Republic of China, in which an interpretation is requested by the legislative body that is responsible for the law. This process has been criticized both by Western and Chinese legal scholars for being unwieldy and for not allowing for judicial independence and separation of powers. At the same time, the counterargument has been made that resolving legal conflicts is primarily a legislative activity and not a judicial one.

Varieties of law

PRC governmental directives exist in a hierarchy which is defined by the Legislation Law of the People's Republic of China. The hierarchy of regulations are

Major areas of law consist of substantive laws and procedure laws. The former includes administrative law, criminal law, civil law or business law and economic law. These are separated into different branches. For example, contract law is considered a branch of civil law. The latter includes civil procedure law, criminal procedure law and administrative procedure law as well.

Civil law and Civil Procedure Law

In 1986 the NPC adopted the General Principles of Civil Law of the People's Republic of China, which helped clarify the scope of the civil law. Article 2 of the General Principles of the Civil Law of the PRC (1986) states that the civil law governs the personal and property relationships between natural person and legal person having equal status. It covers a wide range of topics, including the General Principles, marriage law, property law, contract law, copyright law, and trademark law. From point of views of some scholars, business law such as corporation law, bankruptcy law, insurance law and law on negotiable instruments shall be distinguished from civil law.

However, in contrast to other civil law jurisdictions, the PRC has not codified its civil law into a single code yet, and the civil law of the PRC has been developed leading to a large amount of confusion and contradiction within the legal code. With the booming economy of China, a new class with more fortunes are emerging. They are in urgent need for protection of their properties. The legislation of property law and civil code are put in agenda.

Civil procedure law advocate principle of open trial, system in which the second instance being the final, but Chinese courts are notorious for their inefficient and bureaucratic working style. In particular the enforcement of judgements are difficult and tough.

Criminal law and Criminal Procedure Law

The criminal law is based on the Criminal Code (first adopted in 1979 and later amended in 1997), and supplemented by a number of additions for the NPC's Standing Committee. One key provision of the Legislation Law of the People's Republic of China is Article 8 which states that only a national law passed by the NPC can criminalize behavior.

Aside from protecting society from harm, a key goal of the criminal justice system is to reform criminals through education, labor and skills training.

The harshness of criminal law is under heavy criticism, especially the insistence of capital punishment for lots of crimes. China accounts for over 70% of criminals executed in the world per year, which has raised great concern among different human rights groups and international organizations.

The criminal procedure law provides for the defense of defendant. But as the court, police and procurator’s office are all regarded as organs of CCP’s collective dictatorship, there is less supervision and power balance. It is quite hard to avoid torture and malfeasance.

Administrative law and Administrative Procedure Law

The State Council is authorized to promulgate laws and regulations on social law especially in economic regulation which also consist of economic laws .These laws include of environmental protection law ,regulations on taxation, customs; product quality law and so on. For these laws, government and its bodies as one of the parties, they are superior to other parties such as enterprises and individuals for they exercising the power of regulation.

The Administrative Procedure Law of the People's Republic of China (1989) allows legal persons to bring legal challenges against administrative action.

The types of administrative actions that can be challenged must be "concrete actions" which include: administrative punishments (such as detentions and fines), administrative coercive measures, interference with the operations of enterprises, refusal to take action or perform an obligation, unlawful demands for performance of duties, and violations of rights of the person or a property right. The review of state action is carried out in the local people's courts. Court review of agency action is not permitted for state action involving national defense or foreign affairs. Moreover, the court cannot review administrative legislation.

As a matter of fact, although the administrative litigation involving governments are on the rise for citizens would use legal measures to protect their properties from violation of government, it is still quite difficult for the court to make fair judgements or efficient execution of judgements, as the court’s judges are appointed by CCP and finance coming from government.

Lawmaking and legislative authority

There are two types of organs that are empowered to make legislative enactments. The first are referred to as state power organs (国家权力机关) which take their form as the National People's Congress, its standing committee, and local people's congresses of provinces, municipalities, "metropolitans having some degrees of autonomy" designated by the State Council. Certain administrative organs (行政机关), that is the State Council, its departments and commissions, and local people's governments at the same level as the local people's congresses mentioned above, including the governments of provincial capitals, also have the power to make various rules.

In theory, legislation issued by administrative organs is subordinate to that issued by state power organs. Enactments of administrative organs must not conflict with the Constitution or law. In addition, local people's governments must ensure that their enactments comply with those issued by the State Council and its subordinate departments.

The concept of delegation of power has yet to be fully developed in the PRC legal system. For example, because it is not customary to expressly delegate power to administrative bodies to issue specific regulatory documents, they are not drafted pursuant to any specific entrustment of power in the manner of a statutory authorization of the enactment of implementing regulations.

In drafting the new laws, the PRC has declined to copy any other legal system wholesale, and the general pattern has been to issue laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more precedential value than in most civil law jurisdiction. In formulate laws, the PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the Republic of China on Taiwan, and the English-based common law used in Hong Kong. The law of the United States has also been very influential particularly in the area of banking and securities law.

National People's Congress

The highest legislative authority is the NPC. It has the right to revise the Constitution and create major legal codes referred to as "basic laws" (基本法律). Apart from this, the NPC also enacts laws (法), rules (条例), and resolutions (决议). The distinction between laws and rules is vague, but it has been suggested that the latter are more limited in scope and may be experimental in nature, although they have the same validity as laws. Resolutions may contain legal norms in the form of amendments or supplements to laws. They are often used to delegate lawmaking authority to the State Council.

The nature of the selection delegates to the NPC has meant that popular input into lawmaking at this level is very limited. Because the delegates range from different fields and backgrounds, only a very part of them are legal professionals or practitioners. Without any formal legal education or knowledge, few of the delegates can make suggestion or give their opinions on legislation. Thus, a fairly wide cross-section of the party and government at both central and local levels is, however, given the opportunity to produce input. Drafting committees such as the State Council Legislative Affairs Bureau (国务院法制局) and the NPC Legislative Affairs Commission (法制委员会) routinely conduct symposiums attended by officials and academics for the purpose of soliciting informed comment. But as a result, the opinions and interests of voters and citizens can't be really taken into consideration. The act of legislation is changed into a game play of interest groups instead.

The State Council

The next tier of the PRC's legislative hierarchy, the State Council, is also elected by the NPC and is head of the nation's executive. It is empowered under Article 89 of the Constitution to "adopt administrative measures (办法), enact administrative rules and regulations (行政法规) and issue decisions (决定) and orders (命令) in accordance with the Constitution and statutes."

There is no legal definition of the subjects to be dealt with by the State Council as opposed to those that are the exclusive realm of the NPC.

Lawmaking at the local level

Of the four levels of local administration in China (provincial, county, township, hamlet), only the provincial level possesses real lawmaking power. The Organic Law of Local People's Congresses and Local People's Governments allows congresses at the provincial, municipal, provincial capital and "quite big city" level to enact their own regulations, called local regulations (地方性法规). Nevertheless drafts of legislation must be approved by the provincial level congress before they can become law.

Hong Kong and Macao

The legal systems of the Hong Kong Special Administrative Region and the Macao Special Administrative Region are excepted from the legal framework of Mainland China by the doctrine of "one country, two systems" established by Deng Xiaoping. The NPC of the PRC enacted the Basic Law of Hong Kong SAR (April 1990) and Basic Law of Macao SAR (March 1993) to ensure state sovereignty and at the same time the special economic position of those two regions. Since both statutes are national laws, no local laws, including ordinances, administrative regulations, and other normative documents, can violate the Basic Law.

The Basic Law of both regions state that the existing capitalist system and the people's way of life shall remain unchanged for 50 years, and the laws previously in force shall be maintained. In Hong Kong, the legal system is based on English Common Law and Macau based on Portuguese civil law.

The Judiciary

The judge and prosecutor still are regarded as public servants. They shall at first pledge their allegiance to CCP instead of keeping independence. It is widely recognized that the quality of judges and prosecutors are lower than lawyers. In 2002, the unified State Judicial Exam (SJE) was introduced, partly to improve the quality of the judiciary. Any person who wants to work as a judge, prosecutor, or become a practicing lawyer or a public notary, will need to pass the SJE to obtain a Certificate of Legal Profession Qualification.

People's courts

Under the Organic Law of the People's Courts (1983), judicial power is exercised by the courts at four levels:
  • basic people's courts (基层人民法院; also called "local" people's courts): Courts at county or district level. Tribunals may also be set up in accordance with local conditions.
  • intermediate people's courts: Prefecture level courts.
  • higher people's courts: Provincial level courts.
  • the Supreme People's Court (or National Supreme Court, or Supreme Court)

The highest court in the judicial system is the Supreme People's Court in Beijing, directly responsible to the NPC and its Standing Committee. It supervises the administration of justice by the people's courts at various levels. But actually there is a Politics and Law Committee in CCP which is in charge of the direction and cooperation of court, procuratorate, police and ensure CCP’s leadership over judicial issues.

Cases are decided within two instances of trials in the people's courts. This means that from a judgement or orders of first instance of a local people's court, a party may bring an appeal only once to the people's court at the next high level, and the people's procuratorate may protest a court decision to the people's court at the next high level. Additionally, judgments or orders of first instance of the local people's courts at various levels become legally effective if, within the prescribed period for appeal, no party makes an appeal. Any judgments and orders rendered by the National Supreme People's Courts as court of first instance shall become effective immediately.

In accordance with Article 11 of the Organic Law, "the people's courts at all levels shall set up judicial committees within the courts" in order to sum up judicial experience and to discuss important or difficult cases and other issues relating to the judicial works.

Professional and special courts

Other special courts are military courts, maritime courts and railway courts. The military court, established within the People's Liberation Army, is the relatively closed adjudication institution in charge of hearing criminal cases involving servicemen. The maritime courts are located at the major sea and river port cities. They have jurisdiction over maritime cases and maritime trade cases of first instance. It ranks equivalent to an intermediate court in the judiciary hierarchy. The railway transport court deals with criminal cases and economic disputes relating to railway and transportation.

People's procuratorates

Under Article 129 of the Constitution, people's procuratories are "the State organs for legal supervision". Its functions are defined by the Organic Law of the People's Procuratorates (1983).

The Supreme People's Procuratorate is set up at national level. The local people's procuratorates are divided into three tiers as with the people's courts. Procuratorial committees are created inside the people's procuratorates at different levels. According to Article 3 of the Organic Law, "the procuratorial committee shall apply the system of democratic centralism and, under the direction of the chief procurator, hold discussions on important cases and other major issues".

Law enforcement

The Ministry of Public Security is the principal police authority. It is responsible for maintaining social and public order, and also for conducting investigations and arrest of suspects in criminal cases. It maintains public order in accordance with the administrative power granted by law and through the police force. It has so great power that it can even settle civil disputes between citizens.

The Ministry of National Security is the organ for anti-spy , it can exercise the same power as police.

The legal profession

In contrast to the Department of Justice of US as the governing body for police and prosecution, the Ministry of Justice of PRC has less power. Besides governing the prison and Laogai, it mainly focuses on the regulation of legal profession. Historically, the legal profession has been insignificant in the PRC. In the late 1970s, there were no more than a couple of hundred practising lawyers. Since 1979, however, the profession has expanded dramatically. The foundation was laid by the Provisional Law on Lawyering in the PRC in 1980. In its early stages, law offices were called "legal counseling services" (法律顾问处) and lawyers were regarded as "state legal workers". In 1986, the Chinese National Lawyer's Association was established in Beijing, followed by similar organizations around China. In the same year, the Ministry of Justice administered a unified national qualification exam for lawyers. This exam was superseded by the State Judicial Exam (SJE) in 2002. Various structures have been experimented with in the establishment of law offices.

In May 1996, the Lawyers Law was enacted by the NPC. It acknowledged the developmental needs of the legal profession. The definition of a lawyer was finally changed from "state legal worker" to "a professional who legally obtains a Lawyer's Certificate and who provides the society with legal services". The law sets forth qualifications for practicing law; outlines a lawyer's professional capacity, rights and duties; rules for pro bono.

At present, there are more than 8500 law firms in China, staffed by more than 100,000 lawyers. The practice of law has also gradually progressed into new areas such as finance, stock and real estate. Overall however, the size of the Chinese legal profession is still too small to meet the demands of growth and modernization. Moreover, in sensitive cases lawyers still can’t play important roles and defend clients in a free way. Some of them were even tried on accusation of perjury as punishment.

Since the entry of PRC into the World Trade Organization, there has been progressive opening up of the legal service sector. A number of foreign law firms have entered the market, mostly specializing in cross-border business transactions, merger and acquisition, and copyright law.

Law firms and lawyers are crying for their autonomy instead of regulation by governmental authority, but Ministry of Justice would be reluctant to give up its power.

Legal education

Over the last two decades, legal education has paralleled the growth of the legal profession. It is one of the most competitive academic disciplines in terms of university and college enrolment, and the number of judicial and legal training institutions continue to grow. The trend has been determined by a strong demand in the market for legal services, and the need to improve the professional quality of judges and prosecutors.

Chinese judicial and legal training facilities are divided into law schools, law universities and justice colleges; and specialized judicial and professional training centres.

Approximately 70% of practicing lawyers have university degrees, and 30% only have college diplomas. In March 2002, over 360,000 university or college graduates took part in a two-day State Judicial Exam (SJE). According to a recent report, only 7% passed.

University level

At present, there are at least 80 law universities or law colleges，and many university-based law schools or law departments in PRC. The best-known ones are called "the Five Institutes and Four Departments (Simplified Chinese: 五院四系)".

    • Since the late 1990s, the above five universities and institutes are no longer administered by the Ministry of Justice. Each university has 500-800 teaching staff and over 5000 law students. Aside from training future lawyers and judges, they provide on-job training programs for those involved with the law.

  • And "the Four Departments" are:
    • People's University of China Department of Law (Simplified Chinese: 中国人民大学法律系), today known as Renmin University of China School of Law (Simplified Chinese: 中国人民大学法学院), in Beijing.
    • Peking University Department of Law (Simplified Chinese: 北京大学法律系), today known as Peking University Law School (Simplified Chinese: 北京大学法学院), in Beijing.
    • Wuhan University Department of Law (Simplified Chinese: 武汉大学法律系), today known as Wuhan University Law School (Simplified Chinese: 武汉大学法学院), in Wuhan.
    • Jilin University Department of Law (Simplified Chinese: 吉林大学法律系), today known as Jilin University School of Law (Simplified Chinese: 吉林大学法学院), in Changchun.

    • The above four universities are all key universities directly under the administration of the Ministry of Education.

College level

A feature of the Chinese legal training system is the network of specialized on-job internal training colleges and centers. The Supreme People's Court administers two training institutes: the National Judges College and the SPC Spare-time University, both located in Beijing. Its trainees are mostly judges or incoming judges. Starting from 2003, however, receiving a diploma from these institutions will no longer be sufficient. Those who want to become a judge need to have a university-level education. There is also a National Prosecutors College, whose trainees are mostly senior prosecutors. These three institutions also have local branches in all the provinces.

A provincial bureau of justice usually manages a justice training centre in a college of justice, which provides college level training for young students or periodic training to practicing lawyers. In addition, there are provincial-level "schools of the administration of political and legal cadres", which provide a legal training program to judges, prosecutors, justice officials and practicing lawyers.

In addition, the national broadcaster CCTV runs a "Television University" which has a long-distance college-level law program. At the provincial level, there are post-secondary justice colleges or junior colleges, which provide legal education mostly to junior supporting staff in legal institutions.

Legal reasoning

In China, laws are usually broadly drafted with much discretion left to implementing authorities. Some laws in the PRC have amounted to little more than statements of principle. Real clarity exists only at the level of administrative rules , circulars or bylaws. Given laws and regulations greater detail would assist the PRC's economic development in the long term, as it increases certainty, encouraging market rational behaviour. However, in the short run, detailed law limits the flexibility to respond to rapid political and economic change. This indicates a fundamental difference in legal philosophy to that which exists in Western legal systems. The official rationale underlying the vagueness of enacted laws can be found in legal texts such as Theories on the Basis of Legal Science (法学基础理论) by Professor Chen Shouyi. Chen considers that law must have stability as the superstructure of society, but be able to change when economic relations change.

Implementation of law

Equality and justice

Since 1978, the government has departed significantly from its focus on class status, and replaced it with a qualified presumption of equality. The principle of legal equality is enshrined in basic laws such as the Economic Contract Law (1982), which provides that contracting parties enjoy equal rights, the General Principles of Civil Law (1987), which ascribes various rights universally to all natural persons, and the Administrative Litigation Law (1989), which allows any citizen to file suit against administrative agencies. However, the doctrine does not extend to the right of labour to engage in collective bargaining or strike action.

The PRC constitution and laws provide principles for fundamental human rights, but there is general agreement, even among members of the government, that many of these rights are just in principle not fully implemented. There is, however, considerable disagreement over which rights require the most attention and how the PRC should address these deficiencies. In particular, the Chinese government tends to argue that major improvements in China's human rights record can be made within the context of leadership of the Communist Party of China, while many both in China and outside of the government argue that any real improvement is impossible without fundamental changes in the political system. (See human rights in the People's Republic of China)

The expansion of the legal profession has been beneficial for legal awareness. As of 2002, there have been established 2,156 legal aid centres staffed by over 7000 full-time legal professionals. According to the Ministry of Justice, this system will continue to expand, given that "establishing a legal aid system" is a priority of the Chinese government as outlined by the 10th Five-Year Plan (adopted April 2002).

Guanxi and corruption

P.B. Potter suggests that personal, client and familial relationships (often called guanxi) override the concept of legal equality and justice in civil and economic relationships. His conclusion is that basic regime tenets of legality are not being assimilated. Guanxi contacts are exploited in order to surmount institutional barriers. The influence of these extra-legal norms harm the impartiality of administrative bodies as well as the judicial system. In some cases, strong feelings of localism cause local courts to refuse to cooperate in enforcing awards, even when the award has been made by an arbitration body in Beijing. However, this negative view of guanxi is not universal, Schramm and Taube argue that guanxi has personalistic systems of social relationships have positive elements in producing social capital and that personalistic norms can co-exist with impersonal legalistic ones.

As a matter of fact, the judicial corruption is a serious problem facing China at present. Citizens are losing their faith on judicial system for its incompetence, inefficient and injustice. If the judicial system can’t keep independent and its members can’t be regarded as professional practitioner instead of public servants, there is little hope of maintenance of equity and justice.

Legal supervision

The Courts lack the power to review administrative acts and the appropriateness of specific administrative acts. They lack status and are subject to influence from the party at each level of government. Although the PRC Constitution espouses the ideal of judicial independence, it is not possible in the absence of an independent judicial tradition.

"Supervision organs" are also ineffective. The Ministry of Supervision lacks status as it is accountable to the State Council and local governments. Only after its merger with the Central Committee for Discipline Inspection of CCP, the top watchdog for anti-graft of CCP do it exercise some degree of influence.

Further reading

English sources

Wang Chengguang and Zhang Xianchu, Introduction to Chinese Law. Hong Kong: Sweet & Maxwell Asia, 1997.

Albert HY Chen, "An Introduction to the Legal System of the People's Republic of China", Hong Kong: Lexis Nexis, 2004.

Chinese sources

Chen Shouyi, Theories on the Basis of Legal Science (法学基础理论). Beijing: Beijing Daxue Chubanshe (Beijing University Press), 1984.

Shen Zongling (ed.), Jurisprudence (法理学). Taipei: Wunan Book Publisher, 1994.

See also

External links

Chinese

English

Law of the People's Republic of China

Luật pháp Trung Quốc | 中華人民共和國法律

 

This article is licensed under the GNU Free Documentation License. It uses material from the "Law of the People's Republic of China".

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