• China is the third largest country geographically.
  • China’s population exceeds 1.25 billion.
  • Following the dissolution of the Soviet Union, China’s government has become the largest and most powerful communist government.
  • China is divided administratively into
    • 23 provinces,
    • 5 autonomous regions, and
    • 4 municipalities.
  • China’s history is rich and extensive, spanning several thousands of years.
  • The Chinese people have a strong sense of etiquette, ceremony, and pride in their ancient history and culture.
  • To the west, China will continue to
    • be a land of economic opportunity,
    • emerge as a global power,
    • need to take action on pollution, and
    • exert vast influence globally.
  • China’s legal history is typically divided into
    • traditional China, and
    • modern China.
  • China’s history spans of 5,000 years and 19 dynasties.
  • Confucianism suggested:
    • people should restrain their behaviour in accordance with the principle of Li, and
    • emperors should control the people using moral rules rather than punishment.
  • Legalism promoted the use of law rather than force to control the state and the people.
  • Until the early 1900s China had a legal system with
    • detailed legal codes,
    • legislative procedures,
    • rules specifying the hierarchy of different legislative sources, and
    • a multi-level court system.
  • Procedural rules covered all aspects of litigation:
    • filing of complaints,
    • pre-trial investigation,
    • the trial itself,
    • the issuance of judgments, and
    • the appeal process.
  • Wars since 1830s:
    • 1839–1842 — First Opium War against Britain.
    • 1856–1860 — Second Opium War against Britain and France.
    • 1894–1895 — First Sino-Japanese War.
    • 1911 — Civil unrest; collapse of the Qing Dynasty; Republic of China established.
    • 1919 — post-World War I New Culture Movement.
    • 1927–1937 — Start of the Chinese Civil War.
    • 1937–1945 — Second Sino-Japanese War; World War II
    • 1946–1949 — Chinese Civil War resumes; People’s Republic of China (‘PRC’) established.
  • Post-1949 communist China:
    • 1953–1956 — Central planning.
    • 1957–1961 — Decentralisation and the Great Leap Forward.
    • 1962–1965 — Period of readjustment.
    • 1966–1967 — Cultural Revolution.
  • Mao Zedong (chairman of the Communist Party of China) advocated ‘rule of man’:
    • He believed it was more effective than the rule of law.
    • Rule of man meant that China was ruled according to the decisions and policies of the Communist Party.
    • In the early years of the PRC a ‘collective process’ based on multi-party coalition principles was maintained in the drafting of the Constitution, basic laws and principal policies.
  • Cultural Revolution (1966–1976):
    • The 1954 Constitution centred policy initiation and decision making powers on the President.
      • This challenged the traditional political and military authority of the Chairman of the CPC.
    • Consequently President Liu Shaoqi was targeted during the Cultural Revolution.
    • The role of President was removed from the state system until 1983.
    • During the Cultural Revolution all legal institutions were abolished.
      • China was governed by CPC policies rather than by laws.
  • Under Chairman Mao China was isolated from the western world.
  • In 1972 US President Richard Nixon visited China (Sino-US Communiqué).
  • In 1979 Deng Xiaoping, the effective leader of China at the time, visited the United States.
  • In 1979 a formal Sino-American diplomatic relationship was established.
  • Post-Cultural Revolution reforms:
    • More liberal political atmosphere.
    • Discussion of the ‘criteria of truth’
    • Rebirth of private ownership and private enterprise.
    • Gradual and increasing acceptance of the rule of law instead of the rule of man.
  • In 1980 special economic zones were opened for foreign investment.

Traditional China

  • Traditional China’s legal history and structure is characterised in various ways, including
    • feudalism,
    • imperialism, and
    • rule under emperors.
  • The oldest surviving legal code is the 7th century Tang Code.
  • The Tang Code was the foundation for later codes promulgated in the Song, Yuan, Ming and Qing dynasties.
  • These codes regulated matters congruent with the area of modern criminal law.
  • There was no distinction between criminal and civil law; penal sanctions were sometimes applied to acts that are today consider the domain of civil law.
  • Civil disputes (eg, family matters and land interests) were generally settled through mediation.
    • Dispute resolution was conducted by village leaders or elders who applied customary rules and moral concepts.
  • In traditional China the emperor had executive, legislative and judicial powers.
    • There was no rule of law; laws created by the emperor were not binding on the emperor themselves.
    • The emperor had judicial power to
      • determine guilty,
      • dictate sentences, and
      • modify judgements of lower judicial authorities.

Modern China

  • Modernisation of the legal system began during the Qing Empire in the early-20th century.
  • It was evident that China’s legal system was primitive compared to other nations (eg, its harsh criminal procedure and lack of commercial law).
  • In 1904 the Law Reform Bureau was created to translate foreign legal codes and draft new laws.
  • In 1908 modernisation continued with the promulgation of an Imperial Constitutional Outline.
  • Before any of these laws could be implemented the Qing Empire was overthrown in 1911; later governments did however implement some of the drafted reforms.
  • The Communist Party of China (‘CPC’) was established in 1921.
  • The founding of the CPC was followed by the politically turbulent ‘New Democratic Revolution’:
    • Second Revolutionary Civil War (1927–1937).
    • War of Resistance Against Japan (1937–1945).
    • Third Revolutionary Civil War (1945–1949).
  • In 1949 the CPC founded the People’s Republic of China (‘PRC’).

Structure of Government

Executive

  • Positions and powers of the President and Vice President are established in «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China] arts 79–84.
    • The National People’s Congress (‘NPC’) elects the presidential positions to a five-year term, limited to two consecutive terms: art 79.
    • Powers and duties of the President under arts 80–81 include:
      • Promulgation of statutes.
      • Appointment and removal of various State Council members.
      • Issuance of pardons.
      • Proclamations of martial law and states of war.
      • Receiving foreign diplomats.
      • Ratifying or abrogating treaties.
    • The Vice President aids the President in these duties, and may carry out functions delegated by the President: art 82.
  • The State Council is the government of the PRC: «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China] arts 85–98.
    • It is the highest organ of state administration: art 85.
    • The State Council consists of:
      • Premiers.
      • Vice-Premiers.
      • State Councillors.
      • Ministers in charge of 22 ministries.
      • Ministers in charge of 4 Commissions.
      • The Auditor-General.
      • The Secretary-General.
    • The State Council has a term of five years: art 86.
    • Some of the State Council’s functions and powers under art 89 are:
      • Adoption of administrative measures, rules and orders.
      • Submission of proposals to the NPC.
      • Creation and execution of a plan for national economic and social development.
      • Conducting foreign affairs.
      • Concluding treaties.
      • Protecting of the rights of Chinese nationals abroad.
      • Exercising any other functions delegated to it by the NPC.

Legislative

  • The NPC is the highest organ of state power: «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China] art 57.
    • It is partially composed of a permanent Standing Committee: arts 57, 65–69.
    • It is a unicameral body with the authority to establish the laws of China pursuant to art 58.
    • Deputies are elected to their positions within the NPC for five-year terms: art 60.
      • There can be up to 3000 Deputies; currently there are 2985.
      • Deputies are elected indirectly.
    • Some powers of the NPC under arts 62–63 are:
      • Amending the Constitution.
      • Enacting laws.
      • Electing the President and Vice President of the PRC.
      • Electing the President of the Supreme People’s Court.
      • Deciding questions of war and peace.
      • Various removal powers.
    • When the NPC is not in session the Standing Committee can enact amendments to laws passed: art 89.
  • Legislation is also created by provincial, municipal, autonomous area and city people’s congresses.
    • The structure, authority and duties of these Local People’s Congresses (‘LPCs’) are provided for in the Constitution: arts 95–111.
    • All local regulations passed by LPCs must accord with the Constitution, laws passed by the NPC and superior congresses in the hierarchy.
  • The legislative process typically includes the following stages:
    • Presentation.
    • Examination.
    • Passage.
    • Publication.
  • There are also 10 National Administrative Offices of Taxation, Industry and Commerce, and Intellectual Property among others with delegated legislative powers.
  • The People’s Bank of China and State Audit Office have delegated legislative powers.
  • Types of legislative instruments:
    • The Constitution.
    • Basic laws.
    • Administrative regulations.
    • Administrative measures.
    • Local regulations and self-governing or specific regulations.
  • Legislative instruments from 1978–2004:
    • Over 200 NPC and Standing Committee laws.
    • Over 650 State Council regulations.
    • Over 8100 provincial People’s Congresses’ regulations.

Judiciary

  • The judicial system is established in «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China] arts 123–135.
  • It consists of the:
    • People’s Courts.
    • Supreme People’s Court.
    • People’s Procuratorates.
    • Supreme People’s Procuratorate.
    • Military Procuratorates.
    • Special People’s Procuratorates.
  • People’s Procuratorates are state organs for legal supervision.
  • In 1983 the NPC made amendments to the «中华人民共和国人民检察院组织法» [Organic Law of the People’s Procuratorates] (People’s Republic of China) National People’s Congress, 1 July 1979 to enumerate the powers and functions of the procuratorates.
    • The functions are similar to the public prosecutors in common law jurisdictions; overseeing investigations and deciding which cases to prosecute.
    • The oversight of prosecuratorates extend further to include:
      • supervision of the People’s Courts,
      • execution of judgments, and
      • activities of prisons.
  • The Chinese court structure is hierarchical, from highest to lowest:
    • Supreme People’s Court.
    • 31 Higher People’s Courts located in the provinces.
    • 376 Intermediate People’s Courts
    • 3300 Basic People’s Courts further subdivided into 20,000 smaller People’s Tribunals located in towns and villages.
  • There are also a number of specialised courts that deal with areas such as:
    • railway transportation,
    • forest affairs,
    • the People’s Liberation Army, and
    • maritime issues.
  • Jurisdiction is allocated through the:
    • «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China]
    • «中华人民共和国人民法院组织法» [Organic Law of the People’s Courts] (People’s Republic of China) National People’s Congress, 1 July 1979.
    • «中华人民共和国刑事诉讼法» [Criminal Procedure Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, 1 July 1979.
    • «中华人民共和国民事诉讼法» [Civil Procedure Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, 9 April 1991.
    • «中华人民共和国行政诉讼法» [Administrative Procedure Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, 4 April 1989.
  • Litigants are usually limited to one appeal.
    • Appeals are often reviewed anew on both law and facts.
    • Appellate review can be requested through appeals or protests (in criminal cases).
      • Appeals are lodged by the parties to the case.
      • Protests are filed by the procuratorate in criminal cases if there is believed to be an error of law or facts.
    • In civil cases the procuratorate has no power to file a direct protest in civil cases, but can initiate adjudication supervision via a protest.
      • This is a type of discretionary decision review in certain situations in criminal cases.

Court structure and jurisdictions

  • Supreme People’s Court:
    • Original jurisdiction over:
      • Cases assigned by law.
      • Cases it decides it ought to try.
    • Appellate jurisdiction over:
      • Appeals from the Higher People’s Court.
      • Appeals from Special People’s Courts.
  • Higher People’s Court:
    • First instance jurisdiction over:
      • Cases assigned by law.
      • Cases transferred from lower courts.
      • Major criminal cases with significant provincial impact.
    • Appellate jurisdiction over appeals and protests against judgments and orders of lower courts.
  • Intermediate People’s Court:
    • First instance jurisdiction over:
      • Cases transferred from the Basic People’s Court.
      • Major cases dealing with foreign parties.
      • Counter-revolutionary cases.
      • Criminal cases subject to sentences of life imprisonment or capital punishment.
      • Cases where foreigners committed crimes.
    • Appellate jurisdiction over appeals and protests from the Basic People’s Court.
  • Basic People’s Court:
    • Local-level first instance jurisdiction over criminal and civil cases.
    • Has no jurisdiction over criminal cases carrying sentences of life imprisonment or capital punishment.
    • Can request to have important cases transferred to a higher court.

Chinese courts

Central Military Commission

  • The Central Military Commission (‘CMC’) directs the armed forces of China: «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China] arts 93–94.
  • The Constitution does not enumerate the duties and powers of the CMC.
  • The CMC is responsible to the NPC.

Sources of law

The Constitution

  • The current Constitution of the PRC was adopted in 1982.
  • The Constitution is the highest source of law.
  • It establishes the framework of government.
  • It also codifies general principles of government and society, and lists fundamental rights and duties of the Chinese people.
  • Fundamental goals and principles of the preamble:
    • Socialist modernisation.
    • Leadership of the Communist Party of China.
    • Guidance of Marxist-Leninist and Maoist ideologies.
    • Unity of the Chinese nationalities.
    • People’s democratic dictatorship.
    • Steady improvement of socialist institutions.
    • Development of socialist democracy.
    • Improvement of the socialist legal system.
    • Direction of efforts in a self-reliant manner towards modernisation of industry, agriculture, national defence, and science and technology.
    • The turning of China into a socialist country with a high level of culture and democracy.
  • Leadership of the CPC is stressed and solidified.
  • Marxism-Leninism and Maoist ideology is regarded as the proper intellectual framework for development of a socialist state under the people’s democratic dictatorship.
  • More detailed principles:
    • Power of the country lies with the people: art 2.
    • Equality of all nationalities in China: art 4.
    • The rule of law: art 5.
    • State involvement in the economy: arts 14–15.
  • Fundamental rights and duties:
    • Equality of citizens: art 33.
    • Freedoms of speech, press, assembly, association, procession and demonstration: art 35.
    • Right to personal dignity: art 38.
    • Right to criticise state organs: art 41.
    • Duty and right to receive an education: art 46.
    • Duty to practice family planning: art 49.
    • Duty to pay taxes: art 56.

Statutory law and other legislative enactments

  • Legislation of general impact is enacted by the NPC or its Standing Committee.
  • The Standing Committee can also enact regulations, decisions and resolutions (eg, administrative regulations).
  • The State Council and its ministeries and commissions also have rule-making power.
  • Local People’s Congresses can enact local regulations.
  • Local People’s Governments can make local administrative rules.
  • Autonomous regions are permitted to enact autonomy regulations and specific regulations.
  • In Special Administrative Regions (‘SARs’) the Basic Law was developed to deal with those regions.
  • Because SARs had their own legal systems before becoming part of China, the Basic Law of the former system is retained provided it accords with the PRC Constitution.

Treaties

  • There is no constitutional provision for the treatment of international law.
  • In practice the approach has been to automatically incorporate international law as part of domestic PRC law.
  • There is an exception where the PRC has made a reservation in relation to a provision of a treaty; the relevant provision is not implemented.

Case law

  • There is no strict concept of judicial precedent comparable to that of common law.
  • Theoretically each judgment stands on its own and will not bind another court.
  • In practice lower courts often attempt to follow the interpretation of superior courts.
  • Higher courts can use their powers on appeal to essentially bind the lower court that issued the first-instance judgment.

Civil (private) law

  • In 1986 the NPC adopted the «中华人民共和国民法通则» [General Principles of Civil Law of the People’s Republic of China].
    • This clarified the scope of the civil law.
    • Civil law governs the personal and property relationships between citizens and legal persons: art 2.
      • The civil law also includes more specific legislation covering topics such as marriage, land administration, environmental law and intellectual property.
  • Civil procedure is governed by the «中华人民共和国民事诉讼法» [Civil Procedure Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, 9 April 1991.
    • In a court of first instance a case will proceed either ordinarily or summarily.
      • Ordinary procedure involves:
        • Filing a writ with a court.
        • Assessment of the writ by the court to determine if it meets the requirements for bring the action.
        • Filing of the case by the court (if the court does not file the case, this decision can be appealed).
        • Serving of the writ on the defendant by the court.
        • Filing of a defence by the defendant.
        • Pre-trial review of the case and its materials by the court’s adjudicative personnel, including investigation and collection of evidence necessary to determine the case.
        • Pre-trial mediation to attempt voluntary settlement.
        • Issuing of notice that a case will proceed to trial and appearance dates where mediation is unsuccessful.
        • The trial:
          • Investigative stage — the parties and witnesses are questioned by the court; real and documentary evidence is presented.
          • Debate stage — the parties and their counsel make arguments.
          • Judgment stage — the court gives its decision on the matter.
      • Summary procedure allows the Basic People’s Court and its tribunals to decide simple civil matters less formally.
        • The plaintiff’s claim may be presented orally.
        • The parties may request an immediate resolution.
        • Only one adjudicator hears the case.
        • The procedures are far less formal.
    • Appeals can be made by any of the parties.
      • A bench of adjudicators reviews the facts and law of the case.
      • This can involve an open hearing, but it is not required.
      • A mediation may occur at the appellate level.
      • The decision by the court of second instance is final and legally binding.
      • Adjudicative supervision can be initiated by a court, party or procuratorate.

Criminal law

  • Chinese criminal law is contained in the «中华人民共和国刑法» [Criminal Law of the People’s Republic of China] (People’s Republic of China) 1 July 1979.
    • The criminal law has two aims:
      • protecting society from harm, and
      • reforming the person convicted of the crime.
    • The Chinese corrections system includes education, labour and skills training.
  • Criminal procedure is governed by the «中华人民共和国刑事诉讼法» [Criminal Procedure Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, 1 July 1979.
    • Criminal cases have five principle stages:
      • Initiation.
      • Investigation.
      • Prosecution.
      • Adjudication.
      • Execution.
    • Initiation and investigation are carried out by the public security organs or procuratorate.
      • The public security organs are often responsible for
        • detaining suspects (no prior authorisation required),
        • executing arrests (authorisation for procuratorate required),
        • initial questioning, and
        • surveillance of residences.
    • Prosecution is initiated by the procuratorate if the facts indicate a crime has been committed.
      • The procuratorate also questions the suspect and issues one of four determinations:
        • the case is to be returned to the public security organ for further investigation,
        • a public prosecution is to be initiated,
        • the suspect is excused from prosecution, or
        • a prosecution will not be initiated.
    • Adjudication by a court of first instance begins if prosecution is initiated.
      • There are five stages of the formal trial:
        • The chief adjudicator opens the trial; the prosecutor reads the indictment.
        • The adjudicators question the defendant and witnesses; other parties may be given permission to ask questions.
        • Oral arguments are presented by the procuratorate, victim, defendant and defender.
        • The chief adjudicator announces that the debate is finished; the defendant has the right to make a final statement.
        • The case is deliberated by the court and the judgment is announced in public.
    • The case may be subject to one subsequent review in a court of second instance via an appeal or protest.
      • The defendant or prosecutor (in a private prosecution) are permitted to initiate an appeal within the limitation period.
      • The procuratorate may file a protest if displeased with the first instance court’s decision.
      • A second instance decision is deemed legally effective, but a decision may be subject to challenge via adjudicatory supervision.

Administrative law

  • Citizens, legal persons and organisations can bring legal challenges against certain administrative decisions under the «中华人民共和国行政诉讼法» [Administrative Procedure Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, 4 April 1989.
  • There are additional administrative laws and rules that deal with particular subjects that are issued by various provincial and local organs.
  • Administrative adjudication takes two forms:
    • Benefit-conferring.
    • Burden-imposing.
  • Administrative actions that can be challenged must be ‘concrete actions’, including:
    • Administrative punishments (eg, detentions and fines).
    • Administrative coercive measures.
    • Interference with the operations of enterprises.
    • Refusals to take action or perform obligations.
    • Unlawful demands for performance of duties.
    • Violations of rights of the person or property rights.
  • Review of state action is carried out in local courts.
  • Court review of administrative action is not permitted in areas of national defence or foreign affairs.
  • The court cannot review administrative legislation or rule-making.

Enforcement of judgments

  • Judgments can be difficult to enforce as a result of
    • enterprises being unable to pay if they are deeply in debt, and
    • interference by local and departmental protectionism.
  • At the end of June 1999 it was claimed more than 850,000 applications for enforcement of decisions were pending, involving 250 billion RMB in claims.
  • Chinese legal culture does not considered the written contract to be the final authority; words and contracts are the beginnings of understanding not sacrosanct agreements.

Dispute resolution

  • Methods of dispute resolution:
    • mediation,
    • arbitration, and
    • litigation.
  • Mediation aligns with the Confucian idea of maintaining harmony.
  • Negotiation and mediation are often compulsory stages before arbitration or litigation in China.
  • Mediation is non-binding.
  • Litigation benefits from (theoretical) judicial independence and expertise.
  • Court rulings are often difficult to enforce; in 2005 only about 60% of rulings were enforced.
  • Study of law in China consists of a three-year university degree.
  • A graduate who has gained at least two years legal experience is eligible to take a bar examination.
  • If an individual has completed academic, experience and bar examination requirements they can apply for a qualifying certificate.
  • A person holding a non-law degree but who has three years experience or has worked as a judge or procurator may apply for qualification following their successful bar examination.
  • In 1986 the then certification system was replaced by the National Bar Examination administered by the Minister of Justice.
  • Since 2001 there has been a unified National Bar Examination for all legal professionals (judges, procuratorates and lawyers).

Notes drawn from: Volker Behr, ‘Development of a New Legal System in the People’s Republic of China’ (2007) 67 Louisiana Law Review 1161.

  • The People’s Republic of China (‘PRC’) is undergoing dramatic economic, sociological and cultural changes.
  • Modern development of the legal system started only about 30 years ago.
  • A desire to join the World Trade Organisation (‘WTO’) rapidly accelerated development.
  • After the Cultural Revolution (1966–1976) the PRC moved from a communist planned economy to a socialist market economy.
  • This transition gradually allowed, protected and then encouraged private economies.
  • The PRC also opened itself up to international trade.
  • As a result of these changes the Chinese economy is developing at a high speed.
  • At the time Behr was writing (2007) trade with and investment in China continued to increase dramatically:
    • Sino-foreign trade exceeded $1 trillion per year.
    • Foreign investment in China reached about $50 billion per year.
  • Economic development demanded an adequate legal system.
  • The Cultural Revolution left a legal vacuum in which a new legal system had to be developed from scratch.
  • A new legal system would have to cover all areas of law related to economics, but was not restricted to such law.

Development of Chinese law up to the Cultural Revolution

  • Traditional Chinese law:
    • Traditional Chinese law in force and practiced in Imperial China can be classified as the centre of a larger family of law.
    • Its influenced reached all over East and South-East Asia.
    • The law was based on a traditional ‘natural’ economy and fostered by Confucian culture.
    • It was ill-equipped to cope with 19th century economic development and could not survive the impact of modern Western capitalist civilisation.
  • Reception of foreign law at the start of the 20th century:
    • From the late-19th to early-20th centuries the Qing Dynasty attempted to reform its legal system to
      • meet the requirements of international developments, and
      • cope with the development of the modern national economy.
    • Continental European law heavily influenced the modernisation of the Chinese legal system.
      • German law was taken as paradigm in the planned development of a modern Chinese civil code.
      • The German Civil Code was recent and accessible via Japan and Korea.
    • Large-scale political changes prevented the realisation of this development of the legal system.
      • P’u Yi, the last emperor, resigned in 1912 and the Chinese Empire entered a long period of revolution and civil war.
  • Legal developments during the civil wars:
    • During the first-half of the 20th century the political system remained fragile and unstable.
    • The Qing Dynasty was followed by a long period of civil wars with warlords battling and being defeated by the Kuomintang (‘National People’s Party’).
    • The Kuomintang established a new government in the Northern Territories attempted to preserve and modernise the old legal system.
      • A new civil code was intended to be introduced, based on the German, Swiss and Japanese codes.
    • Civil wars prevented the realisation of this goal.
    • China was unable to attempt to establish a legal system until 1949.
  • Introduction of a socialist legal system:
    • Mao Zedong proclaimed the PRC on 1 October 1949.
    • The Marxist-Leninist political system was incompatible with the old legal system.
    • The Central Committee of the Chinese Communist Party declared the abolition of the old national codes.
    • The new legal system relied heavily on the Russo-Soviet legal system.
    • Planned economy was the leading economic principle.
    • The economic system was governed by plans and administrative orders.
    • Consequently there was little need to develop a body of law to regulate a market economy.
    • Political changes disrupted this development phase; the Cultural Revolution ground administration of justice to a halt.
  • The Cultural Revolution
    • Struggle for power within the Communist Party of China (‘CPC’) led to the ‘Great Proletarian Cultural Revolution’.
    • In August 1966 Mao Zedong called for the Red Guard (a militant youth movement in China) to challenge CPC officials for their ‘lack of revolutionary zeal’.
    • During 1966–1976 laws were repealed or suspended and law reform was abandoned.
      • Contracts were considered symbols of capitalism; the contract system was abolished and was not replaced for 20 years.
      • Since 1950 the PRC had tried to develop a criminal code; 33 drafts had been completed but none enacted until 1980 — after the Cultural Revolution.
  • After the Cultural Revolution China attempted (for the fourth time that century) to develop a new legal system.
  • China’s economy had declined significantly as a result of the disorder of the Cultural Revolution.
  • The economy was changed from a ‘pure socialist planned economy’ to a ‘socialist market economy’.
  • China moved to become a partner in the global economy.
  • In December 1978 the 3rd session of the XIth Central Committee of the CPC declared ‘socialist modernisation’ to be a major goal in which individual activities were part of that development.
  • The 1982 «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China]:
    • continued to emphasise a planned economy as the basis for socialist public ownership (art 15), but
    • had already cautiously accepted market economies as supplementary to this (art 11), and
    • permitted foreign investment (art 18).
  • The 2004 Constitution:
    • declared individual, private and other non-public economies to be a major component of the socialist market economy and to be protected by the state (art 11), and
    • expressly protected foreign investment (art 18).
  • Legal certainty and predictability of decisions became predominant political goals to assist the evolving domestic market economy.
    • This was to be achieved in a three-step approach.
  • The Central Committee of the CPC asked for the development of a constitutional state.
  • The ‘machinery of legislation’ was put into action:
    • 1979 — the long-pending «中华人民共和国刑法» [Criminal Law] and accompanying «中华人民共和国刑事诉讼法» [Criminal Procedure Law] enacted.
    • 1981 — «中华人民共和国经济合同法» [Economic Contract Law] enacted (later amended in 1993).
    • 1982 — new «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China] accepted.
    • 1986 — «中华人民共和国民法通则» [General Principles of Civil Law] enacted.
    • 1987 — Technical Contracts Law enacted.
    • 1991 — «中华人民共和国民事诉讼法» [Civil Procedure Law] enacted.
    • 1995 — Foreign Economic Contract Law enacted.
  • Within a period of about 10 years the most important areas of law were covered.
  • Despite rapid legislative growth the laws were not necessarily comprehensive:
    • The General Principles of Civil Law were restricted to 156 articles addressing basic civil law problems that traditionally ask for significantly more specific provisions.
      • They also addressed topics typically dealt with at the constitutional level.

Modifying, refining and accomplishing the system

  • Newly enacted legislation was inconsistent with older laws on similar topics.
  • Many areas were not yet addressed at all.
  • Starting in the mid-1980s the existing body of law was modified, refined and accomplished.

The Chinese Constitution

  • The 1982 Constitution was of high quality:
    • About 140 constitutions from around the world were reportedly considered in drafting the first post-Cultural Revolution constitution.
    • It enshrined a chapter on basic rights and duties (though restricted to citizens of the PRC), including:
      • Equality before the law, and universal entitlement to rights and obligations to perform duties prescribed in the Constitution: art 33.
      • Universal suffrage and other political rights for those over the age of 18: art 34.
      • Freedoms of speech, press, assembly, association, procession and demonstration: art 35.
      • Freedom of religious belief: art 36.
      • The right and duty to work: art 42.
      • The right and duty to receive education: art 46.
    • The 1982 Constitution also protected the ‘lawful rights and interests of foreigners within Chinese territory’, mandated that foreigners abide by Chinese law when on Chinese territory and provided for political asylum: art 32.
  • The 1982 Constitution hesitatingly shifted from the socialist planned economy to a socialist market economy:
    • The state would practice planned economy on the basis of socialist public ownership to ensure proportionate and coordinate growth of the national economy: art 15(1).
    • The individual economy of urban and rural working people was to complement the socialist public economy, and the state would protect lawful rights and interests while guiding, assisting and supervising the individual economy: art 11.
  • The 1982 Constitution was significantly modified in 1988, 1993 and 2004.
    • These modifications were due to political developments — focusing on the economic system and attitudes to property.
  • The 2004 Constitution is more open to principles of market economies:
    • ‘The State-owned economy, that is, the socialist economy under ownership by the whole people, is the leading force in the national economy. The State ensures the consolidation and growth of the State-owned economy’: art 7.
    • ‘Individual, private and other non-public economies that exist within the limits prescribed by law are major components of the socialist market economy’: art 11(1).
    • ‘The State protects the lawful rights and interests of the non-public sectors of the economy such as the individual and private sectors of the economy. The State encourages, supports and guides the development of the non-public sectors of the economy and, in accordance with law, exercises supervision and control over the non-public sectors of the economy’: art 11(2).
  • The 2004 Constitution fostered the protection of foreign enterprises.
    • ‘All foreign enterprises and other foreign economic organisations in China, as well as joint ventures with Chinese and foreign investment located in China, shall abide by the law of the People’s Republic of China. Their lawful rights and interests are protected by the law of the People’s Republic China’: art 18(2).
  • The protection of private property has also been strengthened:
    • The 1982 Constitution relied heavily on public ownership of all means of production:
      • ‘The basis of the socialist economic system … is socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people’: art 6.
      • ‘Land in cities is owned by the State. Land in the rural and suburban areas is owned by collectives except for those portions which belong to the State in accordance with the law; house sites and privately farmed pots of cropland and hilly land are also owned by collectives’: art 10.
    • But the 1982 Constitution also recognised to a degree the protection of private property:
      • ‘The State protects the rights of citizens to own lawfully earned income, savings, houses and other lawful property. The State protects according to law the right of citizens to inherit private property’: art 13.
    • The 2004 Constitution added protection against expropriation and requisition without compensation.

Criminal law

  • Modifying, refining and completing the new criminal laws initially relied on enactment of additional laws against crimes related to the changing economy, eg:
    • corruption,
    • bribery,
    • hijacking, and
    • intellectual property infringement.
  • Drafting of the new Criminal Law involved consultation of comparative materials.
  • Development of the new Criminal Law was discussed in international symposia.
  • The first post-Cultural Revolution Criminal Law was relatively short and heavily influenced by political and ideological attitudes.
  • The idea of the rule of law became increasingly influential.
  • Former art 1 of the Criminal Law identified as the base of the law the
    • leadership of the CPC,
    • guidance of Marxism-Leninism and Mao Zedong Thought, and
    • people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants.
  • The new art 1 of the Criminal Law addresses the struggle against crime, punishment of crime and protection of citizens: ‘This law is formulated in accordance with the Constitution and in light of the concrete experiences of China launching a struggle against crime and the realities in the country, with a view to punishing crime and protecting the people.
  • ‘Any act deemed by explicit stipulations of law as a crime is to be convicted and given punishment by law and any act that no explicit stipulations of law deems a crime is not to be convicted or given punishment’: art 3.

Civil (private) law

  • Numerous and more detailed civil laws were enacted.
  • The most notable is the 1995 Secured Interests Law which covered (among others):
    • property law in part (which had been minimally regulated under the General Principles of Civil Law),
    • family law,
    • law of succession,
    • corporations law,
    • banking law,
    • insurance law,
    • foreign trade,
    • intellectual property, and
    • labor law.

Consolidation of the system

  • In the mid-1990s a third stage of development began, which may be called consolidation.
  • The Constitution was modified for the fourth time in 2004.
  • The 1997 Criminal Law consolidated the existing Criminal Law and the significant amount of special criminal legislation.
    • It expanded from less than 200 provisions to more than 450 provisions.
    • 150 provisions were modified.
    • About 130 provisions from two dozen special laws were integrated.
  • The most significant consolidation was in the field of civil (private) law.
    • The various contract laws and General Principles of Cvil Law were inconsistent and no longer met the requirements of a growing private sector.
    • Hesitation toward contract law generally had led to narrow drafting.
      • The Economic Contract Law only allowed contracts between legal entities excluding individuals.
      • The contract laws were too vague, leaving dispute resolution to arbitration and courts without addressing what law was to be applied in the individual case.
      • Contracts were unduly restricted by administrative measures.
    • The different contract laws were consolidated into the 1999 Contract Law.
      • This was totally different from its predecessors.
      • The 1999 Contract Law included 428 paragraphs divided into a general part and a special part dealing with 15 specific types of contract.
      • It was based on comparative research that took into account:
        • Continental European codes (eg, the German and Italian Civil Codes),
        • the US Uniform Commercial Code,
        • international conventions (eg, the UN Convention on the International Sale of Goods), and
        • Principles of International Commercial Contracts.
  • Other areas of law have been revised, amended and prepared, including family law, property law, tort law and a unified Civil Code.
  • Economic laws have been revised and expanded.

Accession to the World Trade Organisation

  • Preparation for accession began in 1986.
  • It was evident that to join the WTO China would need a functioning legal system that could open itself up to the world.
  • Corporate law, intellectual property, banking law and other economic laws would need to be developed and modified.
  • In 1990 a copyright law was enacted, and later revised to meet the requirements of the Berne Convention and TRIPS.
  • The 2004 Administrative Measures on Foreign Investment in the Commercial Sector liberalised international trade.

Participation in international law making

  • The PRC plays an increasing role in the development of international conventions that unify the law, although in restricted areas.
  • In 1986 the PRC signed the UN Convention on the International Sale of Goods, which would later strongly influence domestic contract law.
  • In 1987 the PRC acceded to the UN Convention on Recognition and Enforcement of Foreign Arbitral Awards, an important instrument to encourage international commerce.

Law making in the People’s Republic of China

  • Law making in a global world requires taking into consideration global law making and developments in law.
  • There are specific obstacles to globalisation for law.
    • Due to law’s national imbedding and ideas of sovereignty, law was among the least global of social phenomena.
    • Some areas of law are less resistant to extrinsic influence.
  • The development of the Chinese legal system provides valuable insight into the questions of law making in a global world.
  • From a technical perspective, post-Cultural Revolution China had to legislate from scratch.
  • A new legal system had to be established and modifications to the economy system presented new challenges.
  • A step-by-step approach to law making is appropriate and advisable for countries in a similar position to China.
  • People desperately need a legal framework and often there is no preexisting framework or the framework is inappropriate for new political and economic situations.
  • The predominant concern in such situations is rapidity — precision, niceness, completeness and consistency are dispensed with out of necessity.
  • The three most urgent legal frameworks are:
    • A fundamental law (ie, constitution).
    • A basic civil law.
    • A basic criminal law.
  • If economic development through foreign trade and investment is a priority, a framework for commercial transactions, trade and investment are needed.
  • Once these are in place the legal system can start to be refined, completed and amended.
  • The final step might be to organise and systemise the inevitably scattered pieces of the beginning.
  • This approach was used by the PRC to handle its entrance into the world of a private economy and global business.
  • The Chinese step-by-step approach is a useful model for other developing countries attempting to establish modern legal systems.

Codification and case law

  • The PRC opted for legislation and a codified legal system.
  • Law is developed by legislation and in central areas China is developing traditional codes.
  • Widespread provisions have been integrated into the Criminal Law and Civil Law in order to better organise the legislation.
  • The German Civil Code was particularly influential as a model for the development of Chinese law.
    • Japanese codes (also influenced by Continental European codes) were simply imported.
    • The origins of modern Chinese legal development are clearly based on the Continental European approach.
  • Over the course of the 20th century European-style legislation was challenged.
    • In the 1940s, just prior to the PRC’s establishment, Chinese law makers had considered implementing a US-based common law system.
    • ‘It may be pointed out that the [continental] system … is unquestionably on the decline as a result of the war, and the influence of the Anglo-American law will make itself more and more felt. … With a view to adjusting her foreign relations, it seems wise for [China] to remold her laws a little, especially commercial laws, and put them … on the same track as [the English, American and Russian legal systems]’: Yu Kwei, ‘Some Judicial Problems Facing China’ (1948) 23 Washington Law Review 363, 372–373.
    • American lawyer Roscoe Pound advised China not to abandon the civil law tradition.
    • The subsequent dependence on the Russo-Soviet legal system (fundamentally a civil law legal system) shifted China back towards the civil law approach of codification.
    • Modern Chinese lawyers who are involved in the law-making process emphasise the Roman law tradition of Chinese law.
  • The decision to codify when developing a legal system from scratch has several benefits:
    • Legislation develops the law much faster than waiting for appropriate cases to be decided.
    • The development of common law requires a strong judiciary and well-trained judges and lawyers.
      • The Chinese judiciary was initially very weak, and judges rarely had a legal education.
    • Legislation can incorporate hundreds of years of tradition.
    • Legislation may be more appropriate to fit emerging political systems.

Transplants and comparative approaches

  • It has been argued that sovereignty and nationhood theories require ‘indigenous’ law making that presents an obstacle to the transplanting of laws and legal thought.
    • This may result in a sovereign relying exclusively on indigenous law making at the expense of quality.
    • This approach has been criticised for a long time.
    • Reception of foreign legal institutions should be based on need not provenance.
  • In the PRC there were no obstacles; legal transplants and comparative analysis were heavily relied upon.
  • Modern Chinese legislation relies heavily on foreign expertise.
  • Copying and transplanting foreign law is a much faster way of developing a legal system than developing one indigenously.
  • The quality can also improve by adopting elaborated and field-tested legal mechanisms.
  • China’s acceptance of legal transplants could be a result of their social attitude toward copying:
    • Copying is part of the traditional education.
    • Copying is desirable and prized.

Using foreign experts

  • Modern Chinese law making has always been heavily influenced by foreign expertise.
  • Early Chinese law reform relied on foreign experts (eg, Japanese and American legal experts).
  • Post-Cultural Revolution China retains this reliance.
  • Foreign experts are helpful in evaluating the advantages and disadvantages of transplants and proposed foreign solutions.

Participation in international law making

  • Participation in international law making may facilitate participation in international transactions.
  • It can also influence domestic-law making by adapting domestic law to internationally-accepted standards.

Summary and beyond

  • Developing a new legal system to match new political and economic decisions requires:
    • an adequate legal framework, and
    • an independent and well-trained judiciary to correctly apply the new law.
  • The development of the Chinese legal system in the last 30 years provides useful resources for developing a new legal system through a legislative framework.
  • Developing a legal system must be done in a step-by-step manner; not everything can be done at once.
  • This may mean initially accepting suboptimal solutions and later improving them.
  • Statutory rather than case law is more appropriate for rapidly developing a new legal system.
  • Legislative frameworks are easier to establish as they do not require a well-trained or independent judiciary.
  • Domestic law-making can be aided by:
    • legal transplants,
    • comparative preparatory work,
    • cooperation with foreign experts, and
    • participation in international law-making.
  • The development of a new legal system in the PRC is unfinished and imperfect but provides a good example of how law-making in a global world may work.

Peerenboom, ‘China and the Rule of Law: Part II’

This is a summary of the essay: Randall Peerenboom, ‘China and the Rule of Law: Part II’ (2006) 1 Perspectives 6.

According to Peerenboom, a ‘thin’ theory of the rule of law that treats the principle as part of a larger socio-political philosophy that is itself part of a larger institutional, cultural and values complex makes for a better benchmark when making cross-cultural comparisons than a ‘thick liberal democratic version’. This is especially true when judging the performance of China’s legal system, because the People’s Republic of China is committed to a socialist rule of law and holding it to liberal democratic standards ‘will lead to the unsurprising conclusion that China lacks the rule of law.’

Peerenboom’s ‘second thesis’ is that for a legal system to observe the rule of law its government and, in the case of China, senior Communist Party (‘CPC’) officials must ‘feel constrained by the law and adapt their behaviour accordingly.’ In China it is questionable whether the rule of law will continue to develop if it begins to seriously impinge on the authority and power of the ruling regime. Nevertheless there is ‘some evidence … of a transition from a rule by law system to a rule of law system.’ A consequence of the growing divide between the CPC and government is reduced interference of the CPC in the daily business of government, and both CPC members and government officials are increasingly required to act within the law ‘and are being held accountable when they do not.’

The CPC remais, however, intolerant toward threats to its existence and shows a disregard of the law where necessary to quash those threats (Peerenboom cites the campaign against Falungong and ‘unrelenting persecution of political dissidents’ and advocates of major political reform as examples). Additionally, and despite improvements in curtailing abuses of power by officials, ‘government officials are often beyond the law’s reach for a variety of reasons, including the weakness of the judiciary.’

The central issue is, Peerenboom asserts, ‘one of power’: ‘How does the legal system obtain sufficient authority to control the Party when the Party has hitherto been above the law?’ For the rule of law to be effective in China, the CPC must voluntarily comply; the control and allocation of power in the single-party state contrasts with a multi-party democracy in which the ‘final check’ on governmental authority is the ability of the electorate to replace the ruling regime. Abiding by the rule of law voluntarily would potentially undermine the tenability of the CPC’s rule and ‘in the end an authoritarian regime must either voluntarily relinquish some of its power or else have it taken away by force.’

This unwillingness to relinquish power creates a tension between the directions of the CPC. The CPC acknowledges that a strong and competent judiciary is necessary to resolve commercial disputes fairly and effectively so as to attract foreign investment and sustain economic growth. Thus reforms have been supported to reduce CPC interference in individual cases, improve the quality of judges and create specialist courts. However structural deficiencies have largely been ignored — ‘such as the institutional arrangement whereby local governments fund basic level courts and local people’s congresses appoint judges [which CPC] leaders are … aware results in local protectionism.’ Peerenboom argues that the reason for ignoring this has been aversion to ‘legal reforms that could create an independent judiciary strong enough to challenge the Party.’ The CPC needs to create a judiciary just strong enough to resist local government pressure and competently decide commercial cases while not being powerful enough to be an impartial adjudicator of political cases.

Peerenboom does express optimism that, in the right circumstances, authoritarian leaders are capable of giving up power and that the conflict between the interests of the CPC and the rule of law will be resolved in favour of the latter. He cites the incorporation of the rule of law into the Constitution as an example of a willingness to accept some limitations on power, and the surrender of some control over the legislature and judiciary. This may result in the National People’s Congress and judiciary seeking increasing power (thus drawing it away from the CPC), spurred on by expectations of citizens and international pressures that the CPC acts within the law and reformist factions within the CPC itself.

Economic reforms have distributed some power to local governments, devolving authority to lower-level governments that are more willing to challenge central administration. The transition from planned economy to a market economy has seen increased importance of civil society and law with a corresponding decrease in the degree of state influence. The consequence of economic growth will likely be a demand for further legal reforms and a convergence of the legal system toward the standards of a thin rule of law.

Peerenboom argues ‘it is quite possible, and indeed probable, that China could realize a thin rule of law without a marked increase in support for democracy and liberal versions of human rights.’ While a thin rule of law would increase the tenability of political reform, Chinese citizens may not be inclined ‘to take advantage of that possibility to push for liberal democracy and greater civil and political rights’; this will depend ‘on their own political values’ and studies indicate ‘weak support for liberal democracy and a liberal version of individual rights in China.’

Although reforms in China have … dramatically increased personal freedom … many of the newly emerging social groups are neither liberal nor predisposed toward democracy. … Members of the newly emergent social groups frequently are more interested in guarding jealously their privileged access to power than in broader political reforms. In the near future … a form of socialist state corporatism and clientelism that serves the interests of the state and the elite is a more likely result of economic reform in China than democracy.

At the same time, certain reforms to the legal system may advance the CPC’s goals without endangering its survival. The rule of law is a way for the CPC to gain legitimacy, ensure stability and rein in local governments. Generally the outcomes of particular cases are not a matter of concern to the CPC. Instead the main interest is that the result in cases are based on law and reached through fair procedures; corruption in the courts discourages respect for the law and in turn the ruling regime. Consequently, the Chinese legal system ‘must meet certain minimal functioning standards.’ With this in mind, there remains ‘considerable political space for further reform, as evidenced by the many ongoing attempts to strengthen the system.

However, the CPC is not the sole barrier to establishing the rule of law: the transition from a centrally planned economy to a market oriented economy has led to rapid changes in the laws, creating inconsistency, and for the purposes of economic flexibility, local officials have wide discretion in applying the law. Local government officials are prone to circumventing and ignoring central laws ‘in their hell-bent pursuit of economic growth.’ In addition, the ‘courts are weak; the various means for checking administrative discretion are not effective; the legislative system is in disarray.’ This is largely due to the relative youth of the legal system (which ‘had to be rebuilt virtually from scratch’) which lacks comprehensive laws and suffers from poor drafting and low-level professionalism of judges, lawyers and administrators.

Traditionally China lacked a rule of law culture:

The willingness to rely on connections to circumvent the law, an emphasis on substantive justice, the view that morality trumps law, and the tendency to afford wide discretion to decision-makers all have deep cultural roots. But we need to resist the temptation to essentialize Chinese culture. Chinese society is changing and Chinese culture is changing along with it. While traditional beliefs and practices may present obstacles to the adoption of certain institutions and shape the way the legal system operates and laws are applied, cultural restrictions are not insurmountable.

Despite these problems, law is more important today than during any other period of Chinese history. The pressures of modernity will continue expanding the role of formal law, and the traditional emphasis on harmony and informal dispute resolution is already at odds with the impersonal nature of the economy and pluralistic society. China’s involvement with the global economy and community, especially through treaties concerning trade and human rights, also carries an expectation that it will meet minimum standards, and internal pressures from domestic companies will continue to grow as the protections of a law-based order are sought.

Peerenboom acknowledges that transposing institutions and practices from other legal systems to China may be met with difficulty and that the Chinese legal system ‘falls far short of any reasonable interpretation of the rule of law.’ However, the Chinese are well aware of this and efforts to reform the system are being made; construction of a legal system and creation of ‘a culture of legality’ take time. Peerenboom calls for balance in assessing the Chinese legal system: ‘Assessments of China’s legal system should not ignore the many problems, in the human rights area or other areas. Nor should they ignore the progress that has been achieved and the enormous difficulty of establish a functioning legal system given the circumstances.’

Although many of the problems faced by the legal system in China are not unique to China, the particular set of issues confronting China obviously is unique. Thus it should come as no surprise that China’s legal system and version of rule of law will differ in certain respects from that of other countries. Nevertheless, over time China’s legal system will become more like the legal system of other countries, even as it maintains its differences.