A Brief Reflection on Chinese Law

Those who approach the comparative study of Chinese law will likely do so with a limited knowledge of the Chinese legal system, and a perception of the system as unrefined, authoritarian and inferior to western systems of law. While in practice many of the criticisms of the Chinese legal system are founded, the Chinese constitutional and legislative framework is, at least theoretically, surprisingly sophisticated.

Perhaps the most astounding aspect of the Chinese legal system is its relative youth. The contemporary system of law emerged from the chaos of the 1966–1976 Cultural Revolution, at 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 criminal and criminal procedure laws in 1979,2 which was followed by a new constitution in 1982,3 general principles of civil law in 1986,4 and a civil procedure law in 1991.5 This modernisation of Chinese law was conducted within a period of about 10 years, albeit not necessarily in a fully comprehensive manner.6

The 1982 Constitution is a high-quality instrument that protects, on paper, a number of constitutional rights and freedoms. In the drafting process, some 140 constitutions from around the world were consulted to create a unique blend of democratic rights and freedoms with socialist ideology.7 These rights include equality before the law; universal rights and duties; universal suffrage; freedoms of speech, the press, assembly, association, procession, demonstration and religious belief; and the rights and duties to work and receive education.8 It is surprising to find such a sophisticated and comprehensive collection of rights in the constitution of a country not known for its human rights track record, and highlights the problems associated with implementation and enforcement of these rights.

The expeditious growth of the Chinese legal system may, however, make it a suitable blueprint for developing countries seeking 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 conditions, so reform is sometimes needed at the fundamental level.10 It may be wiser to focus on rapidity rather than precision or comprehensiveness, as basic laws that can be enacted quickly and gradually refined over time can be more effective than complex codes that take years to draft.11

A constitution and basic civil and criminal law provisions allow a legal system to function while being refined, complemented, amended and consolidated.12 A significant advantage of this approach is that it merely requires a competent and active legislature; unlike common law systems, 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 consolidated 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 over 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 within the law.17 On the other hand, China has come a remarkably long way towards political, legal and economic stability in a very short period of time, and to a large degree this has been the product of centralised control by the Communist Party.

A further criticism is that China does not have a constitutionally-independent judiciary to enforce the rule of law or uphold constitutional rights. In comparing the Chinese constitutional framework to that of the United States, Zhiwei Tong explains that the United States Constitution separates the powers of government among the three branches such that the judicial branch is equal to, but independent of, the legislative and executive branches, and so it logically follows that the Supreme Court should keep them in check.18 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.’19 This does necessarily 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.20

Although it is the target of much criticism, the Chinese legal system is typically unfairly assessed. In a 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, China has been able to give effect to its communist goals, develop its economy rapidly, engage in international trade and investment, and lay the foundations for what could one day become a liberal democracy. Despite several laws that reduce the efficacy of the legal system, the Chinese Constitution provides a solid base for future development.

  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]; [Criminal Procedure Law of the People’s Republic of China]. 

  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 1167–70. 

  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, 1174–5. 

  10. Ibid 1175. 

  11. Ibid. 

  12. Ibid. 

  13. Ibid 1177. 

  14. 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, 1175–6. 

  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, 674. 

  19. Ibid. 

  20. Ibid 679.