Law of the People's Republic of China
Encyclopedia
Law of the People's Republic of China is the legal regime of the People's Republic of China
, with the separate legal traditions and systems of Mainland China
, Hong Kong
, and Macau
.
Between 1954 and 1978, there was not very much effort within the People's Republic of China to create a legal system. The Communist leadership led by Mao Zedong
believed that creating a legal system would restrict the power of the Communist Party of China
and create elites which would ultimately harm the socialist revolution.
This policy was changed in 1979, and the PRC has formed an increasingly sophisticated legal system. The PRC's legal system is largely a civil law
system, reflecting the influence of Continental Europe
an legal systems, especially the German civil law system
in the 19th and early 20th centuries.
On the other hand, Hong Kong
still retains the common law
system inherited as a former British colony, and Macau
employs a legal system based on that of Portuguese
civil law
. This is part of the One Country, Two Systems
theory. They have their own courts of final appeal
and extradition
policies. As such, respectively, they are not within the jurisdiction of the court system within the People's Republic of China, which is only effective within mainland China, but their respective Basic Laws
are subject to the interpretation power of the Standing Committee of the National People's Congress
.
in 1911, the Chinese government maintained the civil law system. Although the CCP abolished all legal systems of the ROC after 1949, its legal system was deeply influenced by the legal system of the Soviet Union
, which could also be regarded as a civil law system.
The development of the current legal system dates from the early 1980s, after the end of the Cultural Revolution
. The system has developed slowly and incrementally leading to considerable incoherence.
. It establishes the framework and principles of government, and lists the fundamental rights and duties of Chinese citizens.
Unlike some civil law jurisdictions such as Germany
, China does not systematically lay down general principles in its constitution which all administrative regulations and rules must follow. The principles of legislation and the validity and priority of law, rule and administrative regulations are instead listed in the Legislation Law
, constitutional provisions, basic laws and laws enacted by the National People's Congress
and its standing committee, regulations issued by the State Council
and its departments, local laws and regulations, autonomous-zone regulations, legal explanations and treaty norms are all in theory incorporated into domestic law immediately upon promulgation.
Signed international treaties are in practice automatically incorporated into PRC law, and they are superior to the relevant stipulations of PRC laws. However, the PRC reserves the right to make reservations regarding provisions of a treaty.
Unlike common law
jurisdictions, there is no strict precedential concept for case law and no principle of stare decisis
. In addition, there is no case or controversy
requirement that would require the Supreme People's Court
to limit its decisions to actual cases, and the SPC does issue general interpretations of the law. In practice, lower people's court judges attempt to follow the interpretations of the laws decided by the Supreme People's Court
. In addition, unlike common law jurisdictions, higher courts have the power of supervision and guidance, which means that on their own initiative they can reopen a case that has been decided at a lower level.
Courts in the PRC do not have a general power of judicial review
which enables them to strike down legislation. However under the Administrative Procedure Law of the People's Republic of China
, they do have authority to invalidate specific acts of the government. In cases where there is a conflict of laws, the process to resolve this conflict is outlined in the Legislation Law of the People's Republic of China
, in which an interpretation is requested by the legislative body that is responsible for the law. This process has been criticized both by Western and Chinese legal scholars for being unwieldy and for not allowing for judicial independence
and separation of powers
. At the same time, the counterargument has been made that resolving legal conflicts is primarily a legislative activity and not a judicial one.
Finally courts outside of the special autonomous regions including the Supreme People's Court do not have jurisdiction over the Hong Kong and Macau SAR's, although the Standing Committee of the National People's Congress
does have and has used its authority to interpret the Basic Law of Hong Kong .
. The hierarchy of regulations are
Major areas of law are substantive laws and procedural laws. The former include administrative law
, criminal law
, civil law or business law, and economic law
. These are separated into different branches. For example, contract law is considered a branch of civil law. The latter includes civil procedure law, criminal procedure law and administrative procedure law.
adopted the General Principles of the Civil Law of the People's Republic of China, which helped clarify the scope of the civil law. Article 2 of the document states that the civil law governs personal and property relationships between natural persons and legal persons having equal status. It covers a wide range of topics, including the General Principles, marriage law
, property law
, contract law, copyright law, and trademark law. From the point of view of some scholars, business law, such as corporation law, bankruptcy law, insurance law
, and law on negotiable instruments, is distinguished from civil law.
However, in contrast to other civil law jurisdictions, the PRC has not yet consolidated its civil law into a single code, and the civil law of the PRC has developed in such a way that leads to a large amount of confusion and contradiction within the legal code. With China's booming economy, a new, more affluent class is emerging, the property of which is in urgent need of legal protection.
Civil procedural law advocates the principle of 'open trial' - a system in which the second instance is the final hearing, although Chinese courts are notorious for their inefficient and bureaucratic working styles. Enforcing rulings can prove particularly difficult.
. One key provision of the Legislation Law of the PRC is Article 8, which states that only a national law passed by the NPC can criminalize behavior.
The harshness of criminal law is under heavy criticism, especially the insistence on capital punishment
for many crimes. China accounts for over 70% of criminals executed in the world per year, which has raised great concern among different human rights groups and international organizations.
The criminal procedural law provides for the defense of the accused. However, due to the structure of the PRC's government and its organs, there is little balance in cases where it should theoretically be present.
is authorized to promulgate laws and regulations on social law, especially in economic regulation, which also consists of economic laws. These laws include environmental protection law, regulations on taxation and customs, product quality law, and so on. In these areas, the central government and its organs are superior to other parties, such as enterprises and individuals, for they exercise the power of regulation.
The Administrative Procedure Law of the People's Republic of China
(1989) allows legal persons to bring legal challenges against administrative actions. The types of administrative actions that can be challenged must be "concrete actions", which include: administrative punishments (such as detentions and fines), administrative coercive measures, interference with the operations of enterprises, refusal to take action or perform an obligation, unlawful demands for performance of duties, and violations of rights of the person or property rights. The review of state action is carried out in the local people's court. Court review of agency action is not permitted for state action involving national defense or foreign affairs. Moreover, the court cannot review administrative legislation.
As a matter of fact, although administrative litigation involving governments is on the rise due to citizens using legal measures to protect their property from government violation, it is still quite difficult for the court to give fair judgements or efficient execution, as the court's judges are appointed by the Communist Party and finance comes from the government.
, its departments and commissions, and local people's governments at the same level as the local people's congresses mentioned above, including the governments of provincial capitals—also have the power to make various rules.
In theory, legislation issued by administrative organs is subordinate to that issued by state-power organs. Enactments of administrative organs must not conflict with the Constitution or law. In addition, local people's governments must ensure that their enactments comply with those issued by the State Council and its subordinate departments.
The concept of delegation of power has yet to be fully developed in the PRC legal system. For example, because it is not customary to expressly delegate power to administrative bodies to issue specific regulatory documents, they are not drafted pursuant to any specific entrustment of power in the manner of a statutory authorization of the enactment of implementing regulations.
In drafting the new laws, the PRC has declined to copy any other legal system wholesale, and the general pattern has been to issue laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more precedential value than in most civil law jurisdictions. In formulating laws, the PRC has been influenced by a number of sources, including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the Republic of China on Taiwan
, and the English-based common law used in Hong Kong.
The law of the United States
has also been very influential particularly in the area of banking and securities law. Specifically, China has copied the separation between investment banking, commercial banking, and insurance, even after those walls were abolished in the United States, and large sections of the Securities Law of the People’s Republic of China have incorporated in legislation concepts copied from American securities law.
. It has the right to revise the Constitution and create major legal codes referred to as "basic laws" (基本法律 jīběn fǎlǜ). Apart from this, the NPC also enacts laws (法 fǎ), rules (条例 tiáolì) and resolutions (决议 juéyì). The distinction between laws and rules is vague, but it has been suggested that the latter are more limited in scope and may be experimental in nature, although they have the same validity as laws. Resolutions may contain legal norms in the form of amendments or supplements to laws. They are often used to delegate lawmaking authority to the State Council.
The nature of the selection delegates to the NPC has meant that popular input into lawmaking at this level is very limited. Because the delegates range from different fields and backgrounds, only some of them are legal professionals or practitioners. Without any formal legal education or knowledge, few of the delegates can make suggestions or give opinions on legislation. Thus, a fairly wide cross-section of the party and government at both central and local levels is given the opportunity to produce input. Drafting committees, such as the State Council Legislative Affairs Bureau (国务院法制局 guówùyuàn fǎzhì jú) and the NPC Legislative Affairs Commission (法制委员会 fǎzhì wěiyuánhuì), routinely conduct symposia attended by officials and academics for the purpose of soliciting informed comment. But as a result, the opinions and interests of voters and citizens cannot really be taken into consideration. The act of legislating becomes a game of interest groups instead.
—is also elected by the NPC and is head of the nation's executive. It is empowered under Article 89 of the Constitution to "adopt administrative measures (办法 bànfǎ), enact administrative rules and regulations (行政法规 xíngzhèng fǎzhì) and issue decisions (决定 juédìng) and orders (命令 mìnglìng) in accordance with the Constitution and statutes."
There is no legal definition of those subjects to be dealt with by the State Council and those within the exclusive realm of the NPC.
The judge and prosecutor still are regarded as public servants. It is widely recognized that the quality of judges and prosecutors are lower than lawyers. In 2002, the unified State Judicial Exam (SJE) was introduced, partly to improve the quality of the judiciary. Any person who wants to work as a judge, prosecutor, or become a practicing lawyer or a public notary, will need to pass the SJE to obtain a Certificate of Legal Profession Qualification. Like in courts of imperial times, judges are also inquisitors who question witnesses, but unlike traditional courts, only evidence given in court is taken into account. Parties are permitted agents ad litem who may be lawyers or any citizen approved by the court. A major concern with the modern court system is bribery of judges resulting from low salaries and financial dependence on local government. Though most disputes that reach the courts still end in mediated rather than adjudicated outcomes, Chinese judges still apply formal laws and follow rules of civil procedure.
The highest court in the judicial system is the Supreme People's Court in Beijing, directly responsible to the NPC and its Standing Committee. It supervises the administration of justice by the people's courts at various levels. There is also a Politics and Law Committee in CCP which is in charge of the direction and cooperation of court, procuratorate, police and ensure CCP’s leadership over judicial issues.
Cases are decided within two instances of trial in the people's courts. This means that, from a judgement or order of first instance of a local people's court, a party may bring an appeal only once to the people's court at the next highest level, and the people's procuratorate may protest a court decision to the people's court at the next highest level. Additionally, judgments or orders of first instance of the local people's courts at various levels become legally effective if, within the prescribed period for appeal, no party makes an appeal. Any judgments and orders rendered by the National Supreme People's Courts as court of first instance shall become effective immediately.
In accordance with Article 11 of the Organic Law, "the people's courts at all levels shall set up judicial committees within the courts" in order to sum up judicial experience and to discuss important or difficult cases and other issues relating to the judicial works.
, is the relatively closed adjudication institution in charge of hearing criminal cases involving servicemen. The maritime courts are located at the major sea and river port cities. They have jurisdiction over maritime cases and maritime trade cases of first instance. It ranks equivalent to an intermediate court in the judiciary hierarchy. The railway transport court deals with criminal cases and economic disputes relating to railway and transportation.
The Supreme People's Procuratorate
is set up at national level. The local people's procuratorates are divided into three tiers, as with the people's courts. Procuratorial committees are created inside the people's procuratorates at different levels. According to Article 3 of the Organic Law, "the procuratorial committee shall apply the system of democratic centralism and, under the direction of the chief procurator, hold discussions on important cases and other major issues".
rather than litigation within a formal court system. Most disputes in China to this day are settled informally through community mediation. Likewise, the emphasis has been on compromise, maintaining social harmony, and establishing order. But unlike previous eras, there existed, notably in the first part of the Communist era, mass show trials and public criticisms to enforce the party line, establish party dominance, and make examples of certain elements of society.
After the Communist Party took control, it institutionalized many of the existing informal community mediation systems into the party-state structure. Mediation Committees, staffed by five to eleven community members, were made part of larger Residents’ Committees and charged with settling disputes through peer pressure and conciliation. Like in imperial times, the more formal court system was only employed when community mediation failed to resolve the dispute.
With the emphasis on promoting the party, state, and revolution, one party could bring on accusations against another party without any direct dispute between them. The Communists established a formal court system based on the Soviet model following their victory, but ideological conflict between law specialists and cadres caused the system to break down. In the 1952 "three anti" (san fan) and "five anti" (wu fan) movements, mass public trials with crowds of onlookers shouting criticisms resulted in the execution and detention of hundreds of thousands of "counterrevolutionaries" without employing the formal legal system. During the Cultural Revolution
, the court system was abolished entirely and laws stopped being enacted. This resulted in community mediation systems taking on more importance. The People's Liberation Army
was put in control of judging cases. Red Guard brigades often forced individuals to conduct self-criticisms and sent people to reeducation camps for being "reactionaries."
With the Deng Xiaoping reforms
, there has been a return to socialist legality, though upwards to 90% of all cases are still resolved traditionally—through community mediation.
is the principal police authority. It is responsible for maintaining social and public order, and also for conducting investigations and arrest of suspects in criminal cases. It maintains public order in accordance with the administrative power granted by law and through the police force. It can also settle civil disputes between citizens.
The People's Armed Police
is a paramilitary
force which is used in cases of serious disturbances.
The Ministry of State Security exists a counterespionage organ and is also used to monitor and control perceived threats to the government and party.
, and it mainly focuses on regulation of the legal profession. Historically the legal profession has been insignificant in the PRC. In the late 1970s, there were no more than a couple of hundred practicing lawyers. Since 1979, however, the profession has expanded dramatically. The foundation was laid by the Provisional Law on Lawyering in the PRC in 1980. In its early stages, law offices were called "legal counseling services" (法律顾问处 fǎlǜ gùwèn chǔ) and lawyers were regarded as "state legal workers". In 1986, the Chinese National Lawyer's Association was established in Beijing, followed by similar organizations around the rest of China. In the same year, the Ministry of Justice administered a unified national qualification exam for lawyers. This exam was superseded by the State Judicial Exam (SJE) in 2002. Various structures have been experimented with in the establishment of law offices.
In May 1996, the Lawyers Law was enacted by the NPC. It acknowledged the developmental needs of the legal profession. The definition of a lawyer was finally changed from "state legal worker" to "a professional who legally obtains a Lawyer's Certificate and who provides the society with legal services". The law sets forth qualifications for practicing law; outlines a lawyer's professional capacity, rights and duties; rules for pro bono
.
At present, there are more than 8,500 law firms in China, staffed by more than 100,000 lawyers. The practice of law has also gradually progressed into new areas such as finance, stock and real estate. Overall however, the size of the Chinese legal profession is still too small to meet the demands of growth and modernization. Moreover, in sensitive cases, lawyers still cannot play important roles and defend clients in a free way. Some of them were even tried on accusation of perjury as punishment.
Since the PRC's entry into the World Trade Organization
, there has been progressive opening up of the legal service sector. A number of foreign law firms have entered the market, mostly specializing in cross-border business transactions, mergers and acquisitions
, and copyright law.
Chinese judicial and legal training facilities are divided into law schools, law universities
and justice colleges; and specialized judicial and professional training centres.
Approximately 70% of practicing lawyers have university degrees, and 30% only have college diplomas. In March 2002, over 360,000 university or college graduates took part in a two-day State Judicial Exam (SJE). According to a recent report, only 7% passed.
and the SPC Spare-time University, both located in Beijing. Its trainees are mostly judges or incoming judges. Starting from 2003, however, receiving a diploma from these institutions will no longer be sufficient. Those who want to become a judge need to have a university-level education. There is also a National Prosecutors College, whose trainees are mostly senior prosecutors. These three institutions also have local branches in all the provinces.
A provincial bureau of justice usually manages a justice training centre in a college of justice, which provides college level training for young students or periodic training to practicing lawyers. In addition, there are provincial-level "schools of the administration of political and legal cadres", which provide a legal training program to judges, prosecutors, justice officials and practicing lawyers.
In addition, the national broadcaster CCTV
runs a "Television University" which has a long-distance college-level law program. At the provincial level, there are post-secondary justice colleges or junior colleges, which provide legal education mostly to junior supporting staff in legal institutions.
or strike action
.
The PRC constitution and laws provide principles for fundamental human rights, but there is general agreement, even among members of the government, that many of these rights are just in principle not fully implemented. There is, however, considerable disagreement over which rights require the most attention and how the PRC should address these deficiencies. In particular, the Chinese government tends to argue that major improvements in China's human rights record can be made within the context of leadership of the Communist Party of China, while many both in China and outside of the government argue that any real improvement is impossible without fundamental changes in the political system.
(See human rights in the People's Republic of China
)
The expansion of the legal profession has been beneficial for legal awareness. As of 2002, there have been established 2,156 legal aid
centres staffed by over 7000 full-time legal professionals. According to the Ministry of Justice, this system will continue to expand, given that "establishing a legal aid system" is a priority of the Chinese government as outlined by the 10th Five-Year Plan (adopted April 2002).
) override the concept of legal equality and justice in civil and economic relationships. His conclusion is that basic regime tenets of legality are not being assimilated. Guanxi contacts are exploited in order to surmount institutional barriers. The influence of these extra-legal norms harm the impartiality of administrative bodies as well as the judicial system. In some cases, strong feelings of localism cause local courts to refuse to cooperate in enforcing awards, even when the award has been made by an arbitration body in Beijing. However, this negative view of guanxi is not universal, Schramm and Taube argue that guanxi has personalistic systems of social relationships have positive elements in producing social capital
and that personalistic norms can co-exist with impersonal legalistic ones.
"Supervision organs" are also ineffective. The Ministry of Supervision lacks status as it is accountable to the State Council and local governments. Only after its merger with the Central Committee for Discipline Inspection of CCP, the top watchdog for anti-graft of CCP do it exercise some degree of influence.
. The NPC of the PRC enacted the Basic Law of Hong Kong SAR
(April 1990) and Basic Law of Macau SAR
(March 1993) to ensure state sovereignty and at the same time the special economic position of those two regions. Since both statutes are national laws, no local laws, including ordinances, administrative regulations and other normative documents, can violate the Basic Law.
The Basic Law of both regions states that the existing capitalist system and the people's way of life shall remain unchanged for at least 50 years, and the laws previously in force shall be maintained. In Hong Kong
, the legal system is based on English
Common Law
and Macau
based on Portuguese
civil law
.
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
, with the separate legal traditions and systems of Mainland China
Mainland China
Mainland China, the Chinese mainland or simply the mainland, is a geopolitical term that refers to the area under the jurisdiction of the People's Republic of China . According to the Taipei-based Mainland Affairs Council, the term excludes the PRC Special Administrative Regions of Hong Kong and...
, Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
, and Macau
Macau
Macau , also spelled Macao , is, along with Hong Kong, one of the two special administrative regions of the People's Republic of China...
.
Between 1954 and 1978, there was not very much effort within the People's Republic of China to create a legal system. The Communist leadership led by Mao Zedong
Mao Zedong
Mao Zedong, also transliterated as Mao Tse-tung , and commonly referred to as Chairman Mao , was a Chinese Communist revolutionary, guerrilla warfare strategist, Marxist political philosopher, and leader of the Chinese Revolution...
believed that creating a legal system would restrict the power of the Communist Party of China
Communist Party of China
The Communist Party of China , also known as the Chinese Communist Party , is the founding and ruling political party of the People's Republic of China...
and create elites which would ultimately harm the socialist revolution.
This policy was changed in 1979, and the PRC has formed an increasingly sophisticated legal system. The PRC's legal system is largely a civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
system, reflecting the influence of Continental Europe
Continental Europe
Continental Europe, also referred to as mainland Europe or simply the Continent, is the continent of Europe, explicitly excluding European islands....
an legal systems, especially the German civil law system
Law of Germany
The modern German legal system is a system of law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws as for example most regulations of the civil code were developed prior to the 1949 constitution...
in the 19th and early 20th centuries.
On the other hand, Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
still retains the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system inherited as a former British colony, and Macau
Macau
Macau , also spelled Macao , is, along with Hong Kong, one of the two special administrative regions of the People's Republic of China...
employs a legal system based on that of Portuguese
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
. This is part of the One Country, Two Systems
One country, two systems
"One country, two systems" is an idea originally proposed by Deng Xiaoping, then Paramount Leader of the People's Republic of China , for the reunification of China during the early 1980s...
theory. They have their own courts of final appeal
Court of Final Appeal
The Court of Final Appeal of Hong Kong is the court with the final adjudication power on the laws of Hong Kong.Before 1 July 1997, Hong Kong was a British dependent territory, and the power of final adjudication on the laws of Hong Kong was vested in the Judicial Committee of the Privy Council in...
and extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
policies. As such, respectively, they are not within the jurisdiction of the court system within the People's Republic of China, which is only effective within mainland China, but their respective Basic Laws
Basic Law
The term basic law is used in some places as an alternative to "constitution", implying it is a temporary but necessary measure without formal enactment of constitution. A basic law is either a codified constitution, or in countries with uncodified constitutions, a law given to have constitution...
are subject to the interpretation power of the Standing Committee of the National People's Congress
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
.
History
China has a tradition of adopting civil law systems. During the Qing Dynasty, in order to modernise the Chinese legal system, the Chinese government hired Japanese legal experts to copy legal systems from Japan, which stemmed from the German civil law system. http://www.nyulawglobal.org/globalex/China.htm After the establishment of the Republic of ChinaRepublic of China
The Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
in 1911, the Chinese government maintained the civil law system. Although the CCP abolished all legal systems of the ROC after 1949, its legal system was deeply influenced by the legal system of the Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
, which could also be regarded as a civil law system.
The development of the current legal system dates from the early 1980s, after the end of the Cultural Revolution
Cultural Revolution
The Great Proletarian Cultural Revolution, commonly known as the Cultural Revolution , was a socio-political movement that took place in the People's Republic of China from 1966 through 1976...
. The system has developed slowly and incrementally leading to considerable incoherence.
Sources of law
The highest and ultimate source of legal norms in the PRC is the Constitution of the People's Republic of ChinaConstitution of the People's Republic of China
The Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
. It establishes the framework and principles of government, and lists the fundamental rights and duties of Chinese citizens.
Unlike some civil law jurisdictions such as Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, China does not systematically lay down general principles in its constitution which all administrative regulations and rules must follow. The principles of legislation and the validity and priority of law, rule and administrative regulations are instead listed in the Legislation Law
Legislation Law of the People's Republic of China
The Legislation Law of the People's Republic of China is a law passed by the National People's Congress which describes the relationship between laws and regulations as well as the roles of various institutions in the Chinese government....
, constitutional provisions, basic laws and laws enacted by the National People's Congress
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
and its standing committee, regulations issued by the State Council
State Council of the People's Republic of China
The State Council of the People's Republic of China , which is largely synonymous with the Central People's Government after 1954, is the chief administrative authority of the People's Republic of China. It is chaired by the Premier and includes the heads of each governmental department and agency...
and its departments, local laws and regulations, autonomous-zone regulations, legal explanations and treaty norms are all in theory incorporated into domestic law immediately upon promulgation.
Signed international treaties are in practice automatically incorporated into PRC law, and they are superior to the relevant stipulations of PRC laws. However, the PRC reserves the right to make reservations regarding provisions of a treaty.
Unlike common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions, there is no strict precedential concept for case law and no principle of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
. In addition, there is no case or controversy
Case or controversy
The Case or Controversy Clause of Article III of the United States Constitution has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy — that is, an actual dispute between adverse parties which is capable of...
requirement that would require the Supreme People's Court
Supreme People's Court of the People's Republic of China
The Supreme People's Court is the highest court in the mainland area of the People's Republic of China...
to limit its decisions to actual cases, and the SPC does issue general interpretations of the law. In practice, lower people's court judges attempt to follow the interpretations of the laws decided by the Supreme People's Court
Supreme People's Court of the People's Republic of China
The Supreme People's Court is the highest court in the mainland area of the People's Republic of China...
. In addition, unlike common law jurisdictions, higher courts have the power of supervision and guidance, which means that on their own initiative they can reopen a case that has been decided at a lower level.
Courts in the PRC do not have a general power of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
which enables them to strike down legislation. However under the Administrative Procedure Law of the People's Republic of China
Administrative Procedure Law of the People's Republic of China
The Administrative Procedure Law of the People's Republic of China is legislation passed in 1990 that authorized private suits against administrative organs and personal on the grounds of infringement of their rights...
, they do have authority to invalidate specific acts of the government. In cases where there is a conflict of laws, the process to resolve this conflict is outlined in the Legislation Law of the People's Republic of China
Legislation Law of the People's Republic of China
The Legislation Law of the People's Republic of China is a law passed by the National People's Congress which describes the relationship between laws and regulations as well as the roles of various institutions in the Chinese government....
, in which an interpretation is requested by the legislative body that is responsible for the law. This process has been criticized both by Western and Chinese legal scholars for being unwieldy and for not allowing for judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
and separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. At the same time, the counterargument has been made that resolving legal conflicts is primarily a legislative activity and not a judicial one.
Finally courts outside of the special autonomous regions including the Supreme People's Court do not have jurisdiction over the Hong Kong and Macau SAR's, although the Standing Committee of the National People's Congress
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
does have and has used its authority to interpret the Basic Law of Hong Kong .
Varieties of law
PRC governmental directives exist in a hierarchy, which is defined by the Legislation Law of the People's Republic of ChinaLegislation Law of the People's Republic of China
The Legislation Law of the People's Republic of China is a law passed by the National People's Congress which describes the relationship between laws and regulations as well as the roles of various institutions in the Chinese government....
. The hierarchy of regulations are
- The Constitution of the People's Republic of ChinaConstitution of the People's Republic of ChinaThe Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
- National laws (国家法律 guójiā fǎlǜ), which are issued by the National People's CongressNational People's CongressThe National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
- Administrative regulations, which are issued by the State CouncilState Council of the People's Republic of ChinaThe State Council of the People's Republic of China , which is largely synonymous with the Central People's Government after 1954, is the chief administrative authority of the People's Republic of China. It is chaired by the Premier and includes the heads of each governmental department and agency...
- Local decrees, which are issued by local People's Congresses
- Administrative and local rules, which are issued by an administrative agency or by a local People's Government
Major areas of law are substantive laws and procedural laws. The former include administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
, criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, civil law or business law, and economic law
Economic law
In the legal system of the Soviet Union, economic law was the legal theory and system under which economic relations were a legal discipline independent of criminal law and civil law...
. These are separated into different branches. For example, contract law is considered a branch of civil law. The latter includes civil procedure law, criminal procedure law and administrative procedure law.
Civil law and Civil Procedure Law
In 1986 the National People's CongressNational People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
adopted the General Principles of the Civil Law of the People's Republic of China, which helped clarify the scope of the civil law. Article 2 of the document states that the civil law governs personal and property relationships between natural persons and legal persons having equal status. It covers a wide range of topics, including the General Principles, marriage law
Marriage law
Marriage law refers to the legal requirements which determine the validity of a marriage, which vary considerably between countries.- Rights and obligations :...
, property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
, contract law, copyright law, and trademark law. From the point of view of some scholars, business law, such as corporation law, bankruptcy law, insurance law
Insurance law
Insurance law is the name given to practices of law surrounding insurance, including insurance policies and claims. It can be broadly broken into three categories - regulation of the business of insurance; regulation of the content of insurance policies, especially with regard to consumer...
, and law on negotiable instruments, is distinguished from civil law.
However, in contrast to other civil law jurisdictions, the PRC has not yet consolidated its civil law into a single code, and the civil law of the PRC has developed in such a way that leads to a large amount of confusion and contradiction within the legal code. With China's booming economy, a new, more affluent class is emerging, the property of which is in urgent need of legal protection.
Civil procedural law advocates the principle of 'open trial' - a system in which the second instance is the final hearing, although Chinese courts are notorious for their inefficient and bureaucratic working styles. Enforcing rulings can prove particularly difficult.
Criminal law and Criminal Procedure Law
The criminal law is based on the Criminal Code (first adopted in 1979 and later amended in 1997) and supplemented by a number of additions for the NPC's Standing CommitteeStanding Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
. One key provision of the Legislation Law of the PRC is Article 8, which states that only a national law passed by the NPC can criminalize behavior.
The harshness of criminal law is under heavy criticism, especially the insistence on capital punishment
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
for many crimes. China accounts for over 70% of criminals executed in the world per year, which has raised great concern among different human rights groups and international organizations.
The criminal procedural law provides for the defense of the accused. However, due to the structure of the PRC's government and its organs, there is little balance in cases where it should theoretically be present.
Administrative law and Administrative Procedure Law
The State CouncilState Council of the People's Republic of China
The State Council of the People's Republic of China , which is largely synonymous with the Central People's Government after 1954, is the chief administrative authority of the People's Republic of China. It is chaired by the Premier and includes the heads of each governmental department and agency...
is authorized to promulgate laws and regulations on social law, especially in economic regulation, which also consists of economic laws. These laws include environmental protection law, regulations on taxation and customs, product quality law, and so on. In these areas, the central government and its organs are superior to other parties, such as enterprises and individuals, for they exercise the power of regulation.
The Administrative Procedure Law of the People's Republic of China
Administrative Procedure Law of the People's Republic of China
The Administrative Procedure Law of the People's Republic of China is legislation passed in 1990 that authorized private suits against administrative organs and personal on the grounds of infringement of their rights...
(1989) allows legal persons to bring legal challenges against administrative actions. The types of administrative actions that can be challenged must be "concrete actions", which include: administrative punishments (such as detentions and fines), administrative coercive measures, interference with the operations of enterprises, refusal to take action or perform an obligation, unlawful demands for performance of duties, and violations of rights of the person or property rights. The review of state action is carried out in the local people's court. Court review of agency action is not permitted for state action involving national defense or foreign affairs. Moreover, the court cannot review administrative legislation.
As a matter of fact, although administrative litigation involving governments is on the rise due to citizens using legal measures to protect their property from government violation, it is still quite difficult for the court to give fair judgements or efficient execution, as the court's judges are appointed by the Communist Party and finance comes from the government.
Lawmaking and legislative authority
There are two types of organs that are empowered to make legislative enactments. The first is referred to as "state-power organs" (国家权力机关), which take the form of the National People's Congress, its standing committee and local peoples' congresses of provinces, municipalities, and "metropolitans having some degree of autonomy" as designated by the State Council. Certain administrative organs (行政机关)—that is, the State CouncilState Council of the People's Republic of China
The State Council of the People's Republic of China , which is largely synonymous with the Central People's Government after 1954, is the chief administrative authority of the People's Republic of China. It is chaired by the Premier and includes the heads of each governmental department and agency...
, its departments and commissions, and local people's governments at the same level as the local people's congresses mentioned above, including the governments of provincial capitals—also have the power to make various rules.
In theory, legislation issued by administrative organs is subordinate to that issued by state-power organs. Enactments of administrative organs must not conflict with the Constitution or law. In addition, local people's governments must ensure that their enactments comply with those issued by the State Council and its subordinate departments.
The concept of delegation of power has yet to be fully developed in the PRC legal system. For example, because it is not customary to expressly delegate power to administrative bodies to issue specific regulatory documents, they are not drafted pursuant to any specific entrustment of power in the manner of a statutory authorization of the enactment of implementing regulations.
In drafting the new laws, the PRC has declined to copy any other legal system wholesale, and the general pattern has been to issue laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more precedential value than in most civil law jurisdictions. In formulating laws, the PRC has been influenced by a number of sources, including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the Republic of China on Taiwan
Taiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
, and the English-based common law used in Hong Kong.
The law of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
has also been very influential particularly in the area of banking and securities law. Specifically, China has copied the separation between investment banking, commercial banking, and insurance, even after those walls were abolished in the United States, and large sections of the Securities Law of the People’s Republic of China have incorporated in legislation concepts copied from American securities law.
National People's Congress
The highest legislative authority is the National People's CongressNational People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
. It has the right to revise the Constitution and create major legal codes referred to as "basic laws" (基本法律 jīběn fǎlǜ). Apart from this, the NPC also enacts laws (法 fǎ), rules (条例 tiáolì) and resolutions (决议 juéyì). The distinction between laws and rules is vague, but it has been suggested that the latter are more limited in scope and may be experimental in nature, although they have the same validity as laws. Resolutions may contain legal norms in the form of amendments or supplements to laws. They are often used to delegate lawmaking authority to the State Council.
The nature of the selection delegates to the NPC has meant that popular input into lawmaking at this level is very limited. Because the delegates range from different fields and backgrounds, only some of them are legal professionals or practitioners. Without any formal legal education or knowledge, few of the delegates can make suggestions or give opinions on legislation. Thus, a fairly wide cross-section of the party and government at both central and local levels is given the opportunity to produce input. Drafting committees, such as the State Council Legislative Affairs Bureau (国务院法制局 guówùyuàn fǎzhì jú) and the NPC Legislative Affairs Commission (法制委员会 fǎzhì wěiyuánhuì), routinely conduct symposia attended by officials and academics for the purpose of soliciting informed comment. But as a result, the opinions and interests of voters and citizens cannot really be taken into consideration. The act of legislating becomes a game of interest groups instead.
The State Council
The next tier of the PRC's legislative hierarchy—the State CouncilState Council of the People's Republic of China
The State Council of the People's Republic of China , which is largely synonymous with the Central People's Government after 1954, is the chief administrative authority of the People's Republic of China. It is chaired by the Premier and includes the heads of each governmental department and agency...
—is also elected by the NPC and is head of the nation's executive. It is empowered under Article 89 of the Constitution to "adopt administrative measures (办法 bànfǎ), enact administrative rules and regulations (行政法规 xíngzhèng fǎzhì) and issue decisions (决定 juédìng) and orders (命令 mìnglìng) in accordance with the Constitution and statutes."
There is no legal definition of those subjects to be dealt with by the State Council and those within the exclusive realm of the NPC.
Lawmaking at the local level
Of the four levels of local administration in China (provincial, county, township, hamlet), only the provincial level possesses real lawmaking power. The Organic Law of Local People's Congresses and Local People's Governments allows congresses at the provincial, municipal, provincial capital and "quite big city" levels to enact their own regulations, called local regulations (地方性法规 dìfāngxìng fǎzhì). Nevertheless drafts of legislation must be approved by the provincial level congress before they can become law.Judiciary
People's courts
Under the Organic Law of the People's Courts (1983), judicial power is exercised by the courts at four levels:- basic people's courts (基层人民法院 jī céng rénmín fǎyuàn; also called "local" people's courts): Courts at county or district level. Tribunals may also be set up in accordance with local conditions.
- intermediate people's courts: Prefecture-level courts.
- higher people's courts: Provincial-level courts.
- the Supreme People's Court (or National Supreme Court, or Supreme Court)
The highest court in the judicial system is the Supreme People's Court in Beijing, directly responsible to the NPC and its Standing Committee. It supervises the administration of justice by the people's courts at various levels. There is also a Politics and Law Committee in CCP which is in charge of the direction and cooperation of court, procuratorate, police and ensure CCP’s leadership over judicial issues.
Cases are decided within two instances of trial in the people's courts. This means that, from a judgement or order of first instance of a local people's court, a party may bring an appeal only once to the people's court at the next highest level, and the people's procuratorate may protest a court decision to the people's court at the next highest level. Additionally, judgments or orders of first instance of the local people's courts at various levels become legally effective if, within the prescribed period for appeal, no party makes an appeal. Any judgments and orders rendered by the National Supreme People's Courts as court of first instance shall become effective immediately.
In accordance with Article 11 of the Organic Law, "the people's courts at all levels shall set up judicial committees within the courts" in order to sum up judicial experience and to discuss important or difficult cases and other issues relating to the judicial works.
Professional and special courts
Other special courts include military courts, maritime courts and railway courts. The military court, established within the People's Liberation ArmyPeople's Liberation Army
The People's Liberation Army is the unified military organization of all land, sea, strategic missile and air forces of the People's Republic of China. The PLA was established on August 1, 1927 — celebrated annually as "PLA Day" — as the military arm of the Communist Party of China...
, is the relatively closed adjudication institution in charge of hearing criminal cases involving servicemen. The maritime courts are located at the major sea and river port cities. They have jurisdiction over maritime cases and maritime trade cases of first instance. It ranks equivalent to an intermediate court in the judiciary hierarchy. The railway transport court deals with criminal cases and economic disputes relating to railway and transportation.
People's procuratorates
Under Article 129 of the Constitution, people's procuratories are "the State organs for legal supervision". Its functions are defined by the Organic Law of the People's Procuratorates (1983).The Supreme People's Procuratorate
Supreme People's Procuratorate
The Supreme People's Procuratorate is the highest agency at the national level responsible for both prosecution and investigation in the People's Republic of China...
is set up at national level. The local people's procuratorates are divided into three tiers, as with the people's courts. Procuratorial committees are created inside the people's procuratorates at different levels. According to Article 3 of the Organic Law, "the procuratorial committee shall apply the system of democratic centralism and, under the direction of the chief procurator, hold discussions on important cases and other major issues".
Informal mediation
Like in imperial times, resolving disputes in China has relied heavily on community mediationMediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
rather than litigation within a formal court system. Most disputes in China to this day are settled informally through community mediation. Likewise, the emphasis has been on compromise, maintaining social harmony, and establishing order. But unlike previous eras, there existed, notably in the first part of the Communist era, mass show trials and public criticisms to enforce the party line, establish party dominance, and make examples of certain elements of society.
After the Communist Party took control, it institutionalized many of the existing informal community mediation systems into the party-state structure. Mediation Committees, staffed by five to eleven community members, were made part of larger Residents’ Committees and charged with settling disputes through peer pressure and conciliation. Like in imperial times, the more formal court system was only employed when community mediation failed to resolve the dispute.
With the emphasis on promoting the party, state, and revolution, one party could bring on accusations against another party without any direct dispute between them. The Communists established a formal court system based on the Soviet model following their victory, but ideological conflict between law specialists and cadres caused the system to break down. In the 1952 "three anti" (san fan) and "five anti" (wu fan) movements, mass public trials with crowds of onlookers shouting criticisms resulted in the execution and detention of hundreds of thousands of "counterrevolutionaries" without employing the formal legal system. During the Cultural Revolution
Cultural Revolution
The Great Proletarian Cultural Revolution, commonly known as the Cultural Revolution , was a socio-political movement that took place in the People's Republic of China from 1966 through 1976...
, the court system was abolished entirely and laws stopped being enacted. This resulted in community mediation systems taking on more importance. The People's Liberation Army
People's Liberation Army
The People's Liberation Army is the unified military organization of all land, sea, strategic missile and air forces of the People's Republic of China. The PLA was established on August 1, 1927 — celebrated annually as "PLA Day" — as the military arm of the Communist Party of China...
was put in control of judging cases. Red Guard brigades often forced individuals to conduct self-criticisms and sent people to reeducation camps for being "reactionaries."
With the Deng Xiaoping reforms
Chinese economic reform
The Chinese economic reform refers to the program of economic reforms called "Socialism with Chinese characteristics" in the People's Republic of China that were started in December 1978 by reformists within the Communist Party of China led by Deng Xiaoping.China had one of the world's largest...
, there has been a return to socialist legality, though upwards to 90% of all cases are still resolved traditionally—through community mediation.
Law enforcement
The Ministry of Public SecurityMinistry of Public Security of the People's Republic of China
The Ministry of Public Security , is the principal police and security authority of the mainland of the People's Republic of China and the government agency that exercises oversight over and is ultimately responsible for day-to-day law enforcement...
is the principal police authority. It is responsible for maintaining social and public order, and also for conducting investigations and arrest of suspects in criminal cases. It maintains public order in accordance with the administrative power granted by law and through the police force. It can also settle civil disputes between citizens.
The People's Armed Police
People's Armed Police
The People's Armed Police , officially Chinese People's Armed Police Force is a paramilitary or gendarmerie force primarily responsible for civilian policing and fire rescue duties in the People's Republic of China, as well as provide support to PLA during wartime.In contrast to public security...
is a paramilitary
Paramilitary
A paramilitary is a force whose function and organization are similar to those of a professional military, but which is not considered part of a state's formal armed forces....
force which is used in cases of serious disturbances.
The Ministry of State Security exists a counterespionage organ and is also used to monitor and control perceived threats to the government and party.
Legal profession
The Ministry of Justice of PRC governs the prison and LaogaiLaogai
Laogai , the abbreviation for Láodòng Gǎizào , which means "reform through labor," is a slogan of the Chinese criminal justice system and has been used to refer to the use of prison labor and prison farms in the People's Republic of China . It is estimated that in the last fifty years more than...
, and it mainly focuses on regulation of the legal profession. Historically the legal profession has been insignificant in the PRC. In the late 1970s, there were no more than a couple of hundred practicing lawyers. Since 1979, however, the profession has expanded dramatically. The foundation was laid by the Provisional Law on Lawyering in the PRC in 1980. In its early stages, law offices were called "legal counseling services" (法律顾问处 fǎlǜ gùwèn chǔ) and lawyers were regarded as "state legal workers". In 1986, the Chinese National Lawyer's Association was established in Beijing, followed by similar organizations around the rest of China. In the same year, the Ministry of Justice administered a unified national qualification exam for lawyers. This exam was superseded by the State Judicial Exam (SJE) in 2002. Various structures have been experimented with in the establishment of law offices.
In May 1996, the Lawyers Law was enacted by the NPC. It acknowledged the developmental needs of the legal profession. The definition of a lawyer was finally changed from "state legal worker" to "a professional who legally obtains a Lawyer's Certificate and who provides the society with legal services". The law sets forth qualifications for practicing law; outlines a lawyer's professional capacity, rights and duties; rules for pro bono
Pro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
.
At present, there are more than 8,500 law firms in China, staffed by more than 100,000 lawyers. The practice of law has also gradually progressed into new areas such as finance, stock and real estate. Overall however, the size of the Chinese legal profession is still too small to meet the demands of growth and modernization. Moreover, in sensitive cases, lawyers still cannot play important roles and defend clients in a free way. Some of them were even tried on accusation of perjury as punishment.
Since the PRC's entry into the World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
, there has been progressive opening up of the legal service sector. A number of foreign law firms have entered the market, mostly specializing in cross-border business transactions, mergers and acquisitions
Mergers and acquisitions
Mergers and acquisitions refers to the aspect of corporate strategy, corporate finance and management dealing with the buying, selling, dividing and combining of different companies and similar entities that can help an enterprise grow rapidly in its sector or location of origin, or a new field or...
, and copyright law.
Legal education
Over the last two decades, legal education has paralleled the growth of the legal profession. It is one of the most competitive academic disciplines in terms of university and college enrolment, and the number of judicial and legal training institutions continue to grow. The trend has been determined by a strong demand in the market for legal services, and the need to improve the professional quality of judges and prosecutors.Chinese judicial and legal training facilities are divided into law schools, law universities
and justice colleges; and specialized judicial and professional training centres.
Approximately 70% of practicing lawyers have university degrees, and 30% only have college diplomas. In March 2002, over 360,000 university or college graduates took part in a two-day State Judicial Exam (SJE). According to a recent report, only 7% passed.
University level
At present, there are at least 80 law universities or law colleges，and many university-based law schools or law departments in PRC. The best-known ones are called "the Five Institutes and Four Departments (Simplified Chinese: 五院四系)".- "The Five Institutes" are:
- Beijing Institute of Political Science and Law (Simplified Chinese: 北京政法学院), today known as China University of Political Science and LawChina University of Political Science and LawChina University of Political Science and Law is a university in Beijing, People's Republic of China. Its law school is considered one of the best in China. In 2009, The Ministry of Education ranked CUPL 2nd among top law schools in China. CUPL has two campuses, one in Haidian, which is the...
(Simplified Chinese: 中国政法大学), in BeijingBeijingBeijing , also known as Peking , is the capital of the People's Republic of China and one of the most populous cities in the world, with a population of 19,612,368 as of 2010. The city is the country's political, cultural, and educational center, and home to the headquarters for most of China's...
. - Southwest Institute of Political Science and Law (Simplified Chinese: 西南政法学院), today known as Southwest University of Political Science and Law (Simplified Chinese: 西南政法大学), in ChongqingChongqingChongqing is a major city in Southwest China and one of the five national central cities of China. Administratively, it is one of the PRC's four direct-controlled municipalities , and the only such municipality in inland China.The municipality was created on 14 March 1997, succeeding the...
. - East China Institute of Politics and Law (Simplified Chinese: 华东政法学院), today known as East China University of Politics and LawEast China University of Politics and LawEast China University of Political Science and Law is a public university in Shanghai, People's Republic of China, founded in 1952.-Campus:The urban campus is located on the campus of the former St. John's University...
(Simplified Chinese: 华东政法学院), in ShanghaiShanghaiShanghai is the largest city by population in China and the largest city proper in the world. It is one of the four province-level municipalities in the People's Republic of China, with a total population of over 23 million as of 2010...
. - South Central Institute of Political Science and Law (Simplified Chinese: 中南政法学院), today known as Zhongnan University of Economics and LawZhongnan University of Economics and LawZhongnan University of Economics and Law is a university located in Wuhan, a metropolis of Central China. It was founded in 1948.-External links:**...
(Simplified Chinese: 中南财经政法大学), in WuhanWuhanWuhan is the capital of Hubei province, People's Republic of China, and is the most populous city in Central China. It lies at the east of the Jianghan Plain, and the intersection of the middle reaches of the Yangtze and Han rivers...
. - Northwest Institute of Political Science and Law (Simplified Chinese: 西北政法学院) in Xi'anXi'anXi'an is the capital of the Shaanxi province, and a sub-provincial city in the People's Republic of China. One of the oldest cities in China, with more than 3,100 years of history, the city was known as Chang'an before the Ming Dynasty...
.
- Beijing Institute of Political Science and Law (Simplified Chinese: 北京政法学院), today known as China University of Political Science and Law
-
- Since the late 1990s, the above five universities and institutes are no longer administered by the Ministry of Justice. Each university has 500-800 teaching staff and over 5000 law students. Aside from training future lawyers and judges, they provide on-job training programs for those involved with the law.
- And "the Four Departments" are:
- People's University of China Department of Law (Simplified Chinese: 中国人民大学法律系), today known as Renmin University of China School of Law (Simplified Chinese: 中国人民大学法学院), in Beijing.
- Peking University Department of Law (Simplified Chinese: 北京大学法律系), today known as Peking UniversityPeking UniversityPeking University , colloquially known in Chinese as Beida , is a major research university located in Beijing, China, and a member of the C9 League. It is the first established modern national university of China. It was founded as Imperial University of Peking in 1898 as a replacement of the...
Law School (Simplified Chinese: 北京大学法学院), in Beijing. - Wuhan University Department of Law (Simplified Chinese: 武汉大学法律系), today known as Wuhan UniversityWuhan UniversityWuhan University is a university located in Wuchang, Hubei, China. It is directly under the administration of the Ministry of Education of the People's Republic of China. It is regarded as one of the top ten universities in China, and its history dates back to 1893, making it one of China's...
Law School (Simplified Chinese: 武汉大学法学院), in WuhanWuhanWuhan is the capital of Hubei province, People's Republic of China, and is the most populous city in Central China. It lies at the east of the Jianghan Plain, and the intersection of the middle reaches of the Yangtze and Han rivers...
. - Jilin University Department of Law (Simplified Chinese: 吉林大学法律系), today known as Jilin UniversityJilin UniversityJilin University is a leading national university under the direct jurisdiction of China's Ministry of Education.-History:Founded in 1946 as the Northeast College of Administration in Harbin, Heilongjiang, Jilin University merged with many Universities and colleges and changed its name many times...
School of Law (Simplified Chinese: 吉林大学法学院), in ChangchunChangchunChangchun is the capital and largest city of Jilin province, located in the northeast of the People's Republic of China, in the center of the Songliao Plain. It is administered as a sub-provincial city with a population of 7,677,089 at the 2010 census under its jurisdiction, including counties and...
.
-
- The above four universities are all key universities directly under the administration of the Ministry of Education.
College level
A feature of the Chinese legal training system is the network of specialized on-job internal training colleges and centers. The Supreme People's Court administers two training institutes: the National Judges CollegeNational Judges College
National Judges College is an educational institute in Beijing under the Supreme People's Court. It is responsible for training the judges of the People's Republic of China...
and the SPC Spare-time University, both located in Beijing. Its trainees are mostly judges or incoming judges. Starting from 2003, however, receiving a diploma from these institutions will no longer be sufficient. Those who want to become a judge need to have a university-level education. There is also a National Prosecutors College, whose trainees are mostly senior prosecutors. These three institutions also have local branches in all the provinces.
A provincial bureau of justice usually manages a justice training centre in a college of justice, which provides college level training for young students or periodic training to practicing lawyers. In addition, there are provincial-level "schools of the administration of political and legal cadres", which provide a legal training program to judges, prosecutors, justice officials and practicing lawyers.
In addition, the national broadcaster CCTV
China Central Television
China Central Television or Chinese Central Television, commonly abbreviated as CCTV, is the major state television broadcaster in mainland China. CCTV has a network of 19 channels broadcasting different programmes and is accessible to more than one billion viewers...
runs a "Television University" which has a long-distance college-level law program. At the provincial level, there are post-secondary justice colleges or junior colleges, which provide legal education mostly to junior supporting staff in legal institutions.
Legal reasoning
In China, laws are usually broadly drafted with much discretion left to implementing authorities. Some laws in the PRC have amounted to little more than statements of principle. Real clarity exists only at the level of administrative rules, circulars or bylaws.Equality and justice
Since 1978, the government has departed significantly from its focus on class status, and replaced it with a qualified presumption of equality. The principle of legal equality is enshrined in basic laws such as the Economic Contract Law (1982), which provides that contracting parties enjoy equal rights, the General Principles of Civil Law (1987), which ascribes various rights universally to all natural persons, and the Administrative Litigation Law (1989), which allows any citizen to file suit against administrative agencies. However, the doctrine does not extend to the right of labour to engage in collective bargainingCollective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
or strike action
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
.
The PRC constitution and laws provide principles for fundamental human rights, but there is general agreement, even among members of the government, that many of these rights are just in principle not fully implemented. There is, however, considerable disagreement over which rights require the most attention and how the PRC should address these deficiencies. In particular, the Chinese government tends to argue that major improvements in China's human rights record can be made within the context of leadership of the Communist Party of China, while many both in China and outside of the government argue that any real improvement is impossible without fundamental changes in the political system.
(See human rights in the People's Republic of China
Human rights in the People's Republic of China
Human rights in the People's Republic of China are a matter of dispute between the Chinese government, other countries, international NGOs, and dissidents inside the country. Organizations such as the U.S. State Department, Amnesty International, and Human Rights Watch have accused the Chinese...
)
The expansion of the legal profession has been beneficial for legal awareness. As of 2002, there have been established 2,156 legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
centres staffed by over 7000 full-time legal professionals. According to the Ministry of Justice, this system will continue to expand, given that "establishing a legal aid system" is a priority of the Chinese government as outlined by the 10th Five-Year Plan (adopted April 2002).
Guanxi and corruption
P.B. Potter suggests that personal, client and familial relationships (often called guanxiGuanxi
Guanxi describes the basic dynamic in personalized networks of influence, and is a central idea in Chinese society. In Western media, the pinyin romanization of this Chinese word is becoming more widely used instead of the two common translations—"connections" and "relationships"—as neither of...
) override the concept of legal equality and justice in civil and economic relationships. His conclusion is that basic regime tenets of legality are not being assimilated. Guanxi contacts are exploited in order to surmount institutional barriers. The influence of these extra-legal norms harm the impartiality of administrative bodies as well as the judicial system. In some cases, strong feelings of localism cause local courts to refuse to cooperate in enforcing awards, even when the award has been made by an arbitration body in Beijing. However, this negative view of guanxi is not universal, Schramm and Taube argue that guanxi has personalistic systems of social relationships have positive elements in producing social capital
Social capital
Social capital is a sociological concept, which refers to connections within and between social networks. The concept of social capital highlights the value of social relations and the role of cooperation and confidence to get collective or economic results. The term social capital is frequently...
and that personalistic norms can co-exist with impersonal legalistic ones.
Legal supervision
The Courts lack the power to review administrative acts and the appropriateness of specific administrative acts . They lack status and are subject to influence from the party at each level of government. Although the PRC Constitution espouses the ideal of judicial independence, it is not possible in the absence of an independent judicial tradition."Supervision organs" are also ineffective. The Ministry of Supervision lacks status as it is accountable to the State Council and local governments. Only after its merger with the Central Committee for Discipline Inspection of CCP, the top watchdog for anti-graft of CCP do it exercise some degree of influence.
Hong Kong and Macau
The legal systems of the Hong Kong Special Administrative Region and the Macau Special Administrative Region are excepted from the legal framework of Mainland China by the doctrine of "one country, two systems" established by Deng XiaopingDeng Xiaoping
Deng Xiaoping was a Chinese politician, statesman, and diplomat. As leader of the Communist Party of China, Deng was a reformer who led China towards a market economy...
. The NPC of the PRC enacted the Basic Law of Hong Kong SAR
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
(April 1990) and Basic Law of Macau SAR
Macau Basic Law
The Basic Law of the Macau Special Administrative Region of the People's Republic of China is the constitution of Macau, replacing the Estatuto Orgânico de Macau, which was effective since 1976, on 20 December 1999....
(March 1993) to ensure state sovereignty and at the same time the special economic position of those two regions. Since both statutes are national laws, no local laws, including ordinances, administrative regulations and other normative documents, can violate the Basic Law.
The Basic Law of both regions states that the existing capitalist system and the people's way of life shall remain unchanged for at least 50 years, and the laws previously in force shall be maintained. In Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
, the legal system is based on English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
Common Law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and Macau
Macau
Macau , also spelled Macao , is, along with Hong Kong, one of the two special administrative regions of the People's Republic of China...
based on Portuguese
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
.
Further reading
- Albert H.Y. Chen, "An Introduction to the Legal System of the People's Republic of China", Hong Kong: Lexis Nexis, 2004.
- Chen Shouyi, Faxue jichu lilun 法学基础理论 (Theories on the Basis of Legal Science). Beijing: Beijing Daxue Chubanshe (Beijing University Press), 1984.
- Shen Zongling (ed.), Fali xue 法理学 (Jurisprudence). Taipei: Wunan Book Publisher, 1994.
- Wang Chengguang and Zhang Xianchu, Introduction to Chinese Law. Hong Kong: Sweet & Maxwell Asia, 1997.
- Laws and regulations of the People's Republic of China, Volume 1, compiled by the Legislative Affairs Office of the State Council, Beijing, China : China Legal Pub. House, 2001-, 16 volumes. ISBN 7800837599
See also
- List of statutes of the People's Republic of China
- People's Republic of China's trademark lawPeople's Republic of China's trademark lawThe system of trademark law in mainland China is administered by the China Trade Mark Office or CTMO...
- Legal systems of the worldLegal systems of the worldThe legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
Chinese
- CEI Chinese Law and Regulation (国信中国法律网) Hosted by the State Information Centre, a Chinese central government agency. Includes two major databases covering laws and regulations of the PRC from 1949 to the present.
- Legal Daily 法制日报
English
- China Law Blog Chinese law and the legal issues of doing business in China.
- Free online P.R. China law library In Both English and Chinese
- China Legislative Information Network Systemlaw Web.
- Judicial System of PRC Official Site sponsored by the Supreme People's Court with judicial news, library of laws and regulations, both in English and Chinese.
- Complete Research Guide to the Laws of the People's Republic of China (PRC) Maintained by Wei Luo and Joan Liu, both law librarians at major US universities. A thorough introduction to both print and electronic resources on the law of the PRC.