Notes taken during: Wingking Tu, ‘An Introduction to the Chinese Legal System and Constitution’ (Lecture delivered at the University of Western Sydney, 8 August 2012).

  • There are many different national legal systems, some of which are:
    • Common law legal systems: mostly found in the British Isles, North America, Australia and NZ.
    • Civil law legal systems: mostly Continental Europe, Latin America, and parts of Africa and South-East Asia.
    • Customary law legal systems.
    • Muslim law legal systems: chiefly Saudi Arabia and Iran.
    • Mixed legal systems: spread across Africa and Asia especially.
  • China is a mixed legal system.

Basic structure of the Chinese Constitution

  • Preamble.
  • Chapter I — General principles.
  • Chapter II — Fundamental rights and duties of citizens.
  • Chapter III — Structure of the State.
    • Section 1 — National People’s Congress.
    • Section 2 — President of the People’s Republic of China.
    • Section 3 — State Council.
    • Section 4 — Central Military Commission.
    • Section 5 — Local People’s Congresses and Local People’s Governments.
    • Section 6 — Organs of Self-Government of National Autonomous Regions.
    • Section 7 — People’s Court and People’s Procuratorates.
  • Chapter IV — National Flag, Emblem and Capital.

The legislative system

  • Hierarchy (top to bottom):
    • National People’s Congress (‘NPC’) — Constitution, basic laws, resolutions and decisions.
    • NPC Standing Committee — non-basic laws, resolutions and decisions.
    • State Council — administrative laws and regulations, and other normative documents.
    • Ministries, Commissions and Bureaus — department rules, regulations and other normative documents.
    • Local People’s Congresses (‘LPCs’) and Local People’s Government’s (‘LPGs’) — law-making powers at municipal, provincial, provincial capital, large city levels; local administrative rules and regulations; other normative documents.
  • Scope of national legislative power is limited by Legislation Law (2000/2015) art 8 to:
    • Affairs concerning state sovereignty.
    • Formation, organisation, and functions and powers of the People’s Congresses, Governments, Courts and Procuratorates at all levels.
    • The systems of:
      • regional national autonomy,
      • special administrative regions, and
      • self-government among people at the grassroots level.
    • Criminal offences and their punishment.
    • Mandatory measures and penalties involving:
      • deprivation of citizens of their political rights, and
      • restriction of the freedom of their person.
    • Basic taxation systems such as:
      • taxable items,
      • taxation rates, and
      • collection and administration.
    • Expropriation and requisition of non-state-owned assets.
    • A basic civil system.
    • Fundamental economical systems and basic fiscal, customs, financial and foreign trade systems.
    • Systems of litigation and arbitration.
    • Other affairs on which laws must be made by the NPC or its standing committee.
  • Article 8 is called the «法律保留原则» [Principle of Reservation of Law].
  • Conflict of laws in China:
    • Lex superior:
      • Laws are higher than administrative regulations, local regulations and rules: art 79.
      • Local regulations are higher than the rules of local governments of equal or lower level; rules formulated by provincial or regional People’s Governments are higher than rules formulated by governments of comparatively larger cities within those provinces and regions: art 80.
    • Lex specialis:
      • If special and general provisions of instruments formulated by the same body are inconsistent, the specific prevails: art 83.
    • Lex posterior derogat:
      • If two instruments formulated by the same body are inconsistent, the latter prevails: art 83.
    • Laws; administrative, local, autonomous and separate regulations; and rules shall not be retroactive: art 84.
      • There is an exception for regulations formulated to better protect the rights and interests of citizens, legal persons and other organisations.

Division of power

  • China is a unitary state.
  • Under the Constitution of the PRC power is divided between:
    • The President (head of state).
    • The Premier (prime minister, head of government).
    • The legislature.
    • The courts (which do not exercise judicial review).

Governmental structure of the PRC:

The judiciary

Chinese courts

The legislature

Chinese legislature

Administrative division

Chinese administration

Fundamental principles of Chinese constitutional law

  • Paragraph 7 of the Preamble:
    • The principle of upholding the socialist path.
    • The principle of upholding the people’s democratic dictatorship.
    • The principle of upholding the leadership of the Communist Party of China.
    • The principle of upholding Mao Zedong Thought and Marxism-Leninism.
  • Paragraph 13 of the Preamble:

The people of all nationalities, all State organs, the armed forces, all political parties and public organisations and all enterprises and institutions in the country must take the Constitution as the basic standard of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation.

  • It is very difficult to understand the relationship between the Communist Party and the law.

The Communist Party of China

  • The political system is dominated by the Communist Party.
  • Power is based partly on ‘power of posts’.
  • It is a highly centralised system with top leaders wielding enormous power: the ‘Mao in command’ model.
  • The Communist Party has penetrated down to county and district level through party committees.
  • Every level of government in the administrative hierarchy has a party committee that monitors the government at that level.
  • Today the Communist Party dominates all aspects of governance except the economy.
  • The Standing Committee of the Politburo impacts all aspects of the political system:
    • It currently has seven members; in the past it has had as few as five.
    • Most members of the Politburo are responsible for one of six key ‘systems’:
      • Party affairs including relations with other Communist Parties and party life.
      • Organisational affairs including allocation of all party positions.
      • Propaganda and education including news and colleges.
      • Political and legal affairs including courts, police and the ‘strike hard’ campaign.
      • Finance and economics (led by the Prime Minister).
      • Military (the Communist Party tries to maintain civilian control of the army).
  • Party Secretariat and its key departments:
    • Organisational Department is responsible for all party and key government posts, and is a key position to affect succession.
    • Propaganda Department monitors press and TV, and organises ideological study campaigns.
    • Rural Work Department makes rural policy.
    • People’s Daily is the top Communist Party newspaper.
  • Central Committee:
    • All key power brokers are either full or alternate members of the Central Committee.
    • Meets in a plenary session once a year to approve important policy decisions.
    • The reform era began with the 3rd Plenum of the 11th Central Committee in December 1978.

National People’s Congress

  • The National People’s Congress (‘NPC’) meets every five years to elect leaders (President, Premier, etc).
  • All leaders are approved beforehand by the Standing Committee of the Politburo.
  • The NPC meets yearly to address key issues related to legal affairs, financial affairs, etc.
  • The NPC is essentially a rubber stamp; laws and key decisions originate with the Communist Party and are approved by its committees.
  • Top leaders visit provincial delegations and discuss regional problems.
  • It is a centre for popular input into laws and the economy through its committees, including professionals.
  • A major event occurred in 1987 when only two-thirds of NPC members supported the Three Gorges Dam; one-third abstained.

Military Affairs Commission

  • ‘Political power grows out of the barrel of a gun’: Chairman Mao.
  • The Military Affairs Commission (‘MAC’) is directly under the Politburo Standing Committee.
  • The General-Secretary of the Communist Party is usually the chair of the MAC.
  • The Vice-Chair may be a civilian; other posts are given to the military.

The Communist Party and the Military

  • ‘The Party must always control the gun, not the gun control the Party’: Chairman Mao.
  • Budgetary allocations are given by the State Council and Ministry of Finance.
  • Every military unit has a Communist Party Commissar to maintain party authority.
  • There is overlapping membership between the MAC, Central Committee and Politburo, but no recent overlap with the Standing Committee.

The Communist Party and the Government

  • Every government office has a party branch and party secretary.
  • Provinces have a governor and party secretary; the latter has greater authority.
  • There is a Party Committee at each level of the administrative hierarchy.
    • It often interferes in government decisions.
    • Members are responsible for education, industry, agriculture, population control, propaganda, and selection of key government officials at the next level down through the Organisational Department.

Communist Party Congresses

  • Congresses occur at all levels of the system.
  • They are a rally of the faithful to elect party committees which are full-time representatives between Congresses.
  • The National Party Congress elects the Central Committee; the Central Committee elects the Politburo and Standing Committee of the Politburo.
  • The Party Secretariat is the core of party bureaucracy.
    • Power shifts over time; it was strong under Deng in the 1950s but closed during the Cultural Revolution.
    • Stalin used the Soviet Union’s Party Secretariat to control local elections and membership of the Central Committee, enabling the purges.
    • The Central Committee meets in Party Plenum to map out major policies between Congresses.
  • The Military Affairs Commission is the party committee that controls the army.
    • Top military leaders also members of the MAC.
    • The MAC leads the General Political Department, responsible for party and ideology in the military.

The Communist Party and the courts

  • Authoritarian judiciaries:
    • establish social control,
    • promote regime legitimacy,
    • control administrative agents,
    • facilitate economic development, and
    • help to implement controversial policies.
  • Broadly the judicial system consists of:
    • People’s Courts.
    • People’s Procuratorates.
    • Public Security Organs.
  • The People’s Courts, Procuratorates and Public Security Organs all report to the People’s Congresses.

Effective party control

  • Political-Legal Committees exist at every level of the Communist Party hierarchy.
  • This contrasts with the goal of ‘judicial professionalism’ with the ideals of:
    • courts being staffed and operated by legally-trained judges, and
    • the influence of non-lawyers and extra-legal concerns on adjudication being kept to a minimum.
  • Strictly speaking the judicial system only includes the People’s Courts:
    • Supreme People’s Court (central).
    • Higher People’s Courts (provincial).
    • Intermediate People’s Courts (city level).
    • Basic People’s Courts (county or district).
    • Special People’s Courts (eg, maritime, railway and military courts).
  • In common law systems a decision made by a superior court creates a binding precedent for inferior courts.
  • In China (like Continental European legal systems) the doctrine of binding precedent is not applied.
  • However, the appeal mechanism effectively renders the decisions of higher courts binding on lower courts.
  • The Chinese four-tier system only allows one appeal to be made.
    • This minimises the impact of the provincial Higher People’s Courts’ and the Supreme Court’s decisions on lower-level courts.
    • Compared with other countries there appears to be a gap in the formal legal control over lower courts.

Judicial reforms since the 1990s

  • Reforms have been predominantly top-down.
  • Courts have developed into specialised legal institutions staffed by legally-trained judges.
  • Chinese courts have expanded their jurisdictions and caseloads have increased significantly.
    • From 1978–2012:
      • First instance civil cases increased from less than 500,000 to nearly 7,500,000 per year.
      • First instance criminal cases increased from about 200,000 to about 1,000,000 per year.
      • First instance administrative cases have slowly increased from none to about 100,000 per year.

Administrative litigation

  • The Administrative Litigation Law was passed in April 1989 and implemented in October 1990.
  • It gives the court the power to uphold, revoke, revise or compel administrative actions.
  • It is one of the few state-sanctioned means for private citizens to challenge the actions of government officials on many regulatory and administrative.
  • Administrative litigation has grown to about 130,000 cases per year since 1978.
  • Plaintiffs in administrative litigation by type (percentages approximate):
    • State-owned enterprises: 20%.
    • Private entrepreneurs and firms: 20%.
    • Peasants: 15%.
    • Workers: 10%.
    • Collective firms and organisations: 10%.
    • The remaining 25% spread fairly evenly among:
      • the unemployed,
      • foreign joint venture,
      • professionals,
      • cadres,
      • collective suits, and
      • other.
  • Government agencies being sued in 2009 (percentages approximate):
    • Public security: 8%.
    • Land use: 17%.
    • Urban zoning and real estate: 20%.
    • Industrial and commercial: 2%.
    • Public health: 1%.
    • Transportation: 2%.
    • Other: 50%.

17th Party Congress (2007)

  • The Central Political-Legal Committee adopted a new document on judicial reform.
  • The ‘three supremes’ doctrine:
    • Supremacy of the Communist Party.
    • Supremacy of the people’s interests.
    • Supremacy of the Constitution and law.

Judicial reform

  • Judges are reminded of the need to consider the social and political consequences of their judgments.
  • To achieve a ‘harmonious society’ and social stability, mediation is regarded as a more suitable tool than litigation.

Case study — Qi Yuling v Chen Xiaoqi (2001)

  • Qi Yuling (plaintiff) was a worker at Lunan Ferroalloy General Factory of Shandong.
  • She resided at Chengguanzhen, Zoucheng City, Shandong Province.
  • The defendants were:
    • Chen Xiaoqi, an employee of the Shandong Tengzhou Branch of the Bank of China.
    • Chen Kezheng, Xiaoqi’s father and a worker in the local government where the case happened.
    • The Jining Business School of Shandong Province.
    • The 8th Middle School of Tengzhou City, Shandong Province, where Yuling and Xiaoqi graduated.
    • The Education Committee of Tengzhou City, Shandong Province.
  • In 1990 the first defendant failed an exam for further education.
  • The plaintiff passed the exam and was admitted to Jining School.
  • The first and second defendants obtained Yuling’s admission letter.
    • The first defendant successfully impersonated the plaintiff and enrolled in the Jining Business School.
    • The plaintiff did not know she had been admitted.
    • The first defendant graduated from the business school and found a job at a bank under the name Qi Yuling.
  • The plaintiff filed a suit against the defendants in the Intermediate People’s Court of Zaozhuang City, Shandong Province.
    • The suit charged the defendants with infringements of the right of name and the right to receive education.
    • The plaintiff claimed compensation for both economic loss and emotional injury.
  • The defendants argued that the right of education is not a right provided in the General Principles of Civil Law and therefore there was no cause of action.
  • The Intermediate People’s Court, acting in accordance with articles 99 and 120 of the General Principles of Civil Law, held that the defendants had breached the plaintiff’s general rights of personal name (art 99) and that the plaintiff deserved economic compensation and an injunction under article 120.
  • General Principles of Civil Law art 99:

Citizens shall enjoy the right of personal name and shall be entitled to determine, use or change their personal names in accordance with relevant provisions. Interference with, usurpation of and false representation of personal names shall be prohibited. Legal persons, individual businesses and individual partnerships shall enjoy the right of name. Enterprises as legal persons, individual businesses and individual partnerships shall have the right to use and lawfully assign their own names.

  • General Principles of Civil Law art 120:

If a citizen’s right of personal name, portrait, reputation or honour is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation be rehabilitated, the ill effects be eliminated and an apology be made; he may also demand compensation for losses. The above paragraph shall also apply to infringements upon a legal person’s right of name, reputation or honour.

  • The People’s Intermediate Court held:
    • The defendant Xiaoqi must stop infringing about the plaintiff’s right to her name.
    • The defendants must all make an apology to the plaintiff.
    • The defendants were jointly and severally liable for all legal fees.
    • All defendants were liable to compensate for emotional distress.
    • Certain authentication costs were to be paid by the 8th Middle School and the Education Committee.
    • The plaintiff’s other pleadings were rejected.
  • As a civil case:
    • The parties were entities in civil law; the remedy was to pay monetary damages and apologise.
  • As a criminal case?
    • It could not be easy to impersonate somebody for such a long time without being found out.
    • The 8th Middle School had failed to inform the plaintiff herself of her grades.
    • The notice of admission had been given to the first defendant.
    • The Jining Business School violated the rules of archive management by allowing the first and second defendants to interfere with the material in the archives.
    • The case may involve several crimes:
      • Forging and altering official documents.
      • Possibly bribery.
      • Likely abuse of power or dereliction of duty under the Criminal Law ch 9 art 397.
  • As an administrative case:
    • The Education Committee was an administrative agency of the local government.
    • This case involved the infringement of a citizen’s right by an administrative organ under the Administrative Procedure Law art 2.
  • As a constitutional case:
    • It is often considered to be China’s first constitutional law case because it was the first to apply a provision of the Constitution as the basis of the judgment.
    • Contravention of the Constitution is expressly prohibited in the Constitution itself: art 5.
    • The right to receive education is enshrined in the Constitution: art 46.
  • Some legal scholars hold the opinion that frequent use of constitutional provisions in civil cases will:
    • obviate many of the specialist provisions of the Civil Law, and
    • undermine the dignity of the Constitution.

Zhiwei Tong, ‘A Comment on the Rise and Fall of the Supreme People’s Court’s Reply to Qi Yuling’s Case’

This is a summary of: Zhiwei Tong, ‘A Comment on the Rise and Fall of the Supreme People’s Court’s Reply to Qi Yuling’s Case’ (2010) 43 Suffolk University Law Review 669.

On 24 July 2001 the Supreme People’s Court of China (‘Supreme Court’) promulgated a new judicial interpretation — the ‘Reply to Qi Yuling’s Case’ — which took effect from 13 August 2001. On 18 December 2008 the Supreme Court annulled 27 judicial interpretations, including the Reply to Qi Yuling’s Case on the basis that it was no longer applicable. The Reply was controversial within Chinese legal circles, despite never actually being applied to a single case after Qi Yuling.

Qi Yuling and Chen Xiaoqi were middle school students in Tengzhou City, Shandong Province. In 1990 Qi Yuling passed the entrance exam for technical secondary schools while Chen Xiaoqi failed. Jining Business School sent Qi Yuling an admission letter which was intercepted by Chen Xiaoqi’s father, the head of the middle school, without notifying Qi Yuling. The letter was used by Chen Xiaoqi to register and study at the Business School, graduate and then obtain employment at a branch of the Bank of China — all under Qi Yuling’s name. In 1999 Qi Yuling learned the full story and in January filed a complain against Chen Xiaoqi and others for infringement upon her right of name and right to receive education.

In May 1999 the Zaozhuang Intermediate People’s Court affirmed that Chen Xiaoqi had violated Qi Yuling’s right of name, and ordered the defendant to cease further infringement and pay 35,000 Yuan in damages. The Court found that the defendants had not infringed upon the plaintiff’s right to receive education. Qi Yuling appealed to the Higher People’s Court of Shandong Province on the sole issue of whether the right to receive education had been infringed. On appeal the Higher People’s Court was unsure of how to deal with Qi Yuling’s argument that her right to education had been infringed: the right to receive education was a constitutional right and was not contained in the General Principles of the Civil Law of the People’s Republic of China. The Higher People’s Court referred the matter to the Supreme Court under Organic Law of People’s Court art 33.

On 24 July 2001 the Supreme Court promulgated its reply affirming that Chen Xiaoqi had infringed upon Qi Yuling’s fundamental constitutional right to receive education and inflicted ‘concrete damages’ and ‘should bear corresponding civil liabilities.’ The Higher People’s Court then continued its hearing and awarded the plaintiff 100,000 Yuan for economic losses and emotional distress.

Zhiwei Tong argues that the ultimate goal of the Supreme Court was to expand judicial power by creating a power of constitutional review, but that due to the lack of clear constitutional and political bases ‘it would have been wiser to carry out this kind of experiment quietly’. Huang Songyou, the chief judge of the No 1 Civil Tribunal of the Supreme Court, published an article indicating a desire to establish a system of constitutional review in China modelled on the American approach. Zhiwei is critical:

The following three factors are important to note: first, Huang Songyou was the major drafter of the Reply to Qi Yuling’s case; second, his article was published in People’s Daily Court, which is the official newsletter of the Supreme Court; and third, the leaders of the Supreme Court silently tolerated his statements. These factos gave people reason to believe that his state reflected the Supreme Court’s real attitude.

But, Zhiwei points out, there was no basis in the Constitution, legal theory or political philosophy of China for the theory pursued in the Reply. Why then did ‘responsible judges’ pursue this revolutionary intention? Zhiwei identifies the limited enforcement of the Constitution had created a situation in which the ‘society as a whole held an overly ardent expectation as to enforcement of these articles.’ While there were constitutionally-provided rights, these were largely inaccessible to the public and society as a whole would support any attempt to overcome this, regardless of the constitutionality of the means (which would, or could, not be considered).

Zhiwei argues that the Chinese Constitution does in fact have a system of constitutional review that has never been put into practice. The preamble states that the ‘people of all nationalities, all state organs, the armed forces, all political parties and public organisations and all enterprises and institutions in the country … have the duty to uphold the dignity of the Constitution and ensure its implementation.’ Article 5 explicitly provides that laws cannot contravene the Constitution and that acts in violation of the Constitution must be investigated. Under article 62 the National People’s Congress (‘NPC’) has the function and power of interpreting the Constitution and supervising its enforcement, while article 67 confers on the Standing Committee power to annul laws and regulations made by subordinate bodies that contravene the Constitution. Lack of use of these provisions, Zhiwei claims, made the Chinese legal community weary that they ‘could be turned from the paper to the ground.’

Zhiwei’s third criticism is that the Supreme Court was not in a position ‘to understand the relevant constitutional problems, and overestimated the constitutional position of Chinese courts.’ While they were obviously aware that Marbury v Madison, 5 US 137 (1803) had created the United States’ system of constitutional review, they had taken it for granted that Chinese courts could do the same. This, Zhiwei explains, is because the Chinese and US constitutional frameworks are vastly different.

The US Constitution separates the powers of government among the three branches, such that the judicial branch is equal to both the legislative and executive branches, and so it flows that the judiciary should act to keep the legislative and executive in check. In China, however, state power ‘is distributed in accordance with democratic centralism; the judicial branch is created by and is responsible to the NPC.’ In this framework, the Chinese courts are positioned below the NPC — the NPC supervises the courts, not the other way around. Zhiwei reasons, perhaps unconvincingly, that because the US is a common law jurisdiction and China is a civil law jurisdiction, the ‘Chinese judicial system would thus be in chaos if Chinese courts adopted the United States system of constitutional review.’ However, and perhaps more convincingly, it is argued that Chinese scholars and judges overvalue the US experience: other more viable solutions may be found within China’s unique system.

Zhiwei is sceptical of attempts to elevate the importance of Qi Yuling’s Case to the same prominence in China as Marbury v Madison in the US. The decisions of the Higher People’s Court and Supreme Court were unnecessary because the rights relied upon were already included in the Education Law of the People’s Republic of China; ‘If anyone … infringes upon the lawful rights and interests of teachers, educates, schools or other institutions of education … he or she shall bear civil liabilities according to law’: art 81. The decisions of both courts exceeded the judicial authority conferred by the Constitution (art 126) and the Organic Law of the People’s Court (art 4) which require the judiciary to be subject to the law. Zhiwei contends that constitutional rights should be used to protect citizens from public power, and in Qi Yuling’s Case the plaintiff’s rights had been infringed by a private party, meaning ‘this was not a constitutional case at all. The Supreme Court regarded and propagated this case as a constitutional one only because of the court’s ignorance about constitutional law.’

The Supreme Court’s Reply was not — and cannot be — applied beyond Qi Yuling’s Case. Although the Standing Committee of the NPC appeared to have misgivings, it did not officially annul it at the time. There remain uncertainties as to how the Constitution should be applied and a lack of consensus as to how constitutional review power is distributed. Zhiwei points out that many legal professionals simultaneously supported incompatible approaches to constitutional review — either review through the courts, or review by the NPC itself. This indicates ‘that some legading legal professionals have no concrete idea about the appropriate procedure for establishing a system of constitutional review in China.’ The quiet but deliberate abolition of the Reply in December 2008 ‘indicates that the political leadership directly responsible for the legal affairs in China recognized that allowing the courts a direct role in enforcement of the Constitution would undermine China’s political structure.’

Zhiwei argues that although significant progress has been made to protect human and constitutional rights, further legislation is needed and rights must be implemented by the legislative bodies rather than the judiciary. Constitutional review as currently provided for in the Chinese Constitution is ‘the NPC review model’; an approach similar to the US model lacks either a constitutional or political basis in China. This reality must be faced by Chinese schools who should ‘strive to develop their own model of constitutional review.’

The Law on Legislation, passed on 15 March 2000, provides a right of petition to the NPC Standing Committee for review of laws and regulations believed to be in breach of the Constitution. In May 2004 the Regulations Review Office was established under the Commission of Legal Affairs of the NPC Standing Committee. In December 2005 the Standing Committee revised certain procedures with the purpose of improving review of legal instruments, and on 27 August 2006 passed the People’s Congress Standing Committee Supervision Law which serves as the legal basis for standing committees at different levels of the NPC to exercise a right of supervision.

The legislative instruments ‘demonstrate that a closely woven institution has been formulated for safeguarding the implementation of the Constitution in China.’ Zhiwei is adamant that the ‘widespread view in China that the current safeguarding institution does not work … does not reflect reality’ and that in some fields it has worked effectively. According to Zhiwei, constitutional scholars generally believe that constitutional review in China will eventually be conducted by specialist review bodies in the NPC and later a constitutional court under the NPC which would not have powers of annulment but would instead be able to provide advice on the constitutionality of laws.

Opposition to a constitutional court in 1981 was mainly based on a perception that it was unnecessary, that it would not comply with the NPC centralised leadership structure, and that constitutional enforcement should not be the domain of a small group of judges. However, Zhiwei concludes the article by stating that, based on the arguments presented, ‘a constitutional court is inherently consistent with the statutory law tradition of China.’