I approached the comparative study of Chinese law with a limited knowledge of the Chinese legal system. I knew already that the People’s Republic of China is a communist state and its legal system heavily influenced by European civil law systems and Soviet-derived socialist law.

I pleasantly discovered that perceptions of the Chinese legal system as young, unrefined, authoritarian and inferior to the Anglo-Australian legal system are largely ungrounded. An introduction to the Chinese constitutional and legislative framework has demonstrated that these perceptions are wildly inaccurate and that, to the contrary, the Chinese legal system has many strengths.

The most astounding — and seemingly most ignored — aspect of the Chinese legal system is that it is less than half a century old. It emerged from the legal chaos of the 1966–1976 Cultural Revolution, a time when the People’s Republic of China was transitioning from a ‘pure socialist planned economy’ to a ‘socialist market economy’.1

Consequently, the entirety of the constitutional and legislative framework has been put in place within the last 40 years, beginning with the Criminal and Criminal Procedure Laws in 19792 and being followed by a new Constitution in 19823, the General Principles of Civil Law in 19864 and the Civil Procedure Law in 1991.5 Within a period of about 10 years the most important areas of law had been established, albeit not necessarily in a comprehensive manner.6

Despite perceptions of China as a primitive communist regime, the 1982 Constitution is a high-quality instrument containing a number of constitutional rights and freedoms that should make Australians envious given the few constitutional rights enjoyed in Australia. During the formulation stage China consulted some 140 constitutions from around the world to create a fairly unique combination of democratic rights and freedoms within a constitution founded on socialist ideology.7

These rights include equality before the law; universal rights and duties; universal suffrage; freedoms of speech, press, assembly, association, procession, demonstration and religious belief; the right and duty to work; and the right and duty to receive education.8 This is a highly sophisticated and comprehensive collection of rights that I had not expected to find in the constitution of a communist country, and demonstrate that despite issues affecting implementation and enforcement of those rights there remains a solid theoretical framework of civil and political rights.

The expeditious growth of the Chinese legal system makes it a suitable blueprint for developing countries that seek to modernise their legal systems, especially as the Chinese approach promotes rapid economic development.9 As Volker Behr acknowledges, often the preexisting legal system of a country cannot be easily or suitably adapted for new political and economic situations.10

Something I hadn’t considered before is the need to focus on rapidity rather than precision or completeness of a legal system — post-Cultural Revolution China put in place basic codes that could be gradually refined and amended instead of attempting to adopt comprehensive civil and criminal codes that would have taken many years to compile.11

With a constitution and basic civil and criminal law provisions a legal system can function while being refined, complemented, amended and consolidated to bring scattered legislation together.12 A significant advantage of this approach is that it merely requires a competent and active legislature: unlike common law, the Chinese approach does not require a strong or well-trained judiciary and legal profession to function.13 China also appears to have a much faster alternation between decodification and recodification than European and Latin American jurisdictions:14 while special legislation does develop outside codes (decodification), it is incorporated into the codes comparatively quickly (recodification).15

Despite these advantages, there are many valid criticisms of the Chinese legal system that relate mostly to the rule of law and the enforcement of constitutional rights. Randall Peerenboom asserts that the dominance of the Communist Party of China on the legislative, executive and judicial processes makes it difficult for the legal system to ‘obtain sufficient authority to control the Party’.16 In order to enforce the rule of law, the Communist Party must voluntarily bring itself underneath the law.17

If a realistic comparative approach is taken, however, it must be admitted that China has come a remarkably long way towards political and legal stability in a very short period of time, and to a significant degree this has been the result of centralised control by the Communist Party.

A second criticism is that China does not have a constitutionally independent judiciary to enforce the rule of law and uphold constitutional rights. Zhiwei Tong compares the Chinese constitutional framework to that of the United States,18 explaining that the United States’ 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 logically flows that the Supreme Court of the United States should act to keep them in check.19

This contrasts with the Chinese Constitution, which distributes power ‘in accordance with democratic centralism; the judicial branch is created by and is responsible to the [National People’s Congress]’, giving the judiciary no authority to supervise or balance the ‘representative organ.’20 This does not make the system structurally unsound or democratic: Zhiwei argues that the Chinese Constitution provides for its own enforcement, and suggests that the path forward for the Chinese legal system is to implement a constitutional court consistent with the constitutional structure of the People’s Republic of China.21

A limited exposure to China’s constitutional and legislative framework has made it clear that the Chinese legal system is typically unfairly assessed. In a very short period of time the country has laid the foundations for sustainable legislative and economic growth.

By opting for codification rather than case law as the main mechanism for legal development, the People’s Republic of China has been able to give effect to its communist goals, develop its economy rapidly, engage in international trade, and lay the foundations for what could one day become, counterintuitively, a liberal communist democracy.

Despite several flaws that definitely reduce the efficacy of the legal system, the Constitution of the People’s Republic of China provides a solid base for future development, and from a theoretical perspective is more protective of human rights than the Australian Constitution.

  1. Volker Behr, ‘Development of a New Legal System in the People’s Republic of China’ (2007) Louisiana Law Review 1161, 1164.

  2. «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; «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.

  3. «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China].

  4. «中华人民共和国民法通则» [General Principles of Civil Law of the People’s Republic of China].

  5. «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.

  6. Behr, above n 1, 1166.

  7. Ibid 1167–1170.

  8. «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China] ch II.

  9. Behr, above n 1, 1174–1175.

  10. Ibid 1175.

  11. Ibid.

  12. Ibid.

  13. Ibid 1177.

  14. See Maria Luisa Murillo, ‘The Evolution of Codification in the Civil Law Legal Systems: Towards Decodification and Recodification’ (2001) 11(1) Journal of Transnational Law & Policy 1.

  15. Behr, above n 1, 1175–1176.

  16. Randall Peerenboom, ‘China and the Rule of Law: Part II’ (2006) 1 Perspectives 6.

  17. Ibid 1–2.

  18. 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.

  19. Ibid 674.

  20. Ibid.

  21. Ibid 679.