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Law of the People's Republic of China is the legal regime of the People's Republic of China, incorporating the separate legal traditions and systems of Mainland China, Hong Kong and Macao. Between the 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. Though the PRC legal system is large a civil law system, reflecting the influence of Continental Europe legal systems in the 19th and early 20th centuries. By contrast, Hong Kong still retains the common law system inherited as a former British colony; and Macao employs a legal system based on that of Portugal. They have their own court of final appeals and extradition respectively, which are not within the legal jurisdiction of most courts within People's Republic of China, which is only effective within mainland China. The development of the current legal system dates from the early-1980's, after the end of the Cultural Revolution. The system has developed slowly and incrementally leading to much incoherence. The highest and ultimate source of legal norms in the PRC is the Constitution of the People's Republic of China. It establishes the framework and principles of government, and lists the fundamental rights and duties of the people. Unlike some civil law jurisdictions, China does not have a specific code that systematically lays down general principles that all administrative regulations and rules must follow. Instead its laws are in a decentralised form. 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. International treaties signed are in practice automatically incorporated into PRC law. However, the PRC reserves the right to make reservations to a provision of a treaty. Unlike common law jurisdictions there is no strict precedential concept for case law. However, in practice lower people's courts judges often attempt to follow the interpretations of the laws decided by the Supreme People's Court. Moreover, higher courts can use the finality of their judgments on appeals as having a binding effect on the lower court that issued the first judgment or order. Major areas of law include administrative law, criminal law, civil law and marriage law. These are separated into different branches. For example, contract law is considered a branch of civil law. Civil law In 1986 the NPC adopted the General Principles of Civil Law of the People's Republic of China, which helped clarify the scope of the civil law. Article 2 of the General Principles of the Civil Law of the PRC (1986) states that the civil law governs the personal and property relationships between legal persons. It covers a wide range of topics, including marriage law, property law, environmental law, copyright, and trademark. However in contrast to other civil law jurisdictions, the PRC has not codified its civil law into a single code, and the civil law of the PRC has been developed incremently leading to a large amount of confusion and contradiction within the legal code. Criminal 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 Committee. Aside from protecting society from harm, a key goal of the criminal justice system is to reform criminals through education, labour and skills training. Administrative law The Administrative Litigation Law of the People's Republic of China|Administrative Litigation Law (1989) allows legal persons to bring legal challenges against administrative action. 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 a property right. The review of state action is carried out in the local people's courts. Court review of agency action is not permitted for state action involving national defense or foreign affairs. Moreover, the court cannot review administrative legislation. There are two types of organs that are empowered to make legislative enactments. The first are referred to as state power organs (国家权力机关) which take their form as the National People's Congress, its standing committee, and local people's congresses of provinces, municipalities, "quite big cities" designated by the State Council. Certain administrative organs (行政机关), that is the State Council of the People's Republic of China|State Council, 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 authorisation 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 an legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more precedental value than in most civil law jurisdiction. In formulate 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. National People's Congress The highest legislative authority is the NPC. It has the right to revise the Constitution and create major legal codes referred to as "basic laws" (基本法律). Apart from this, the NPC also enacts laws (法), regulations (条例), and resolutions (决议). The distinction between laws and regulations is vague, but it has bee 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. A fairly wide cross-section of the party and government at both central and local levels is, however, given the opportunity to produce input. Drafting committees such as the State Council Legislative Affairs Bureau (国务院法制局) and the NPC Legislative Affairs Commission (法制委员会) routinely conduct symposiums attended by officials and academics for the purpose of soliciting informed comment. The State Council The next tier of the PRC's legislative hierarchy, the State Council, 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), enact administrative rules and regulations (行政法规) and issue decisions (决定) and orders (命令) in accordance with the Constitution and statutes." There is no legal definition of the subjects to be dealt with by the State Council as opposed to those that are 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" level to enact their own regulations, called local regulations (地方性法规). Nevertheless drafts of legislation must be approved by the provincial level congress before they can become law. The legal systems of the Hong Kong Special Administrative Region and the Macao Special Administrative Region are excepted from the legal framework of Mainland China by the doctrine of "one country, two systems" established by Deng Xiaoping. The NPC of the PRC enacted the Hong Kong Basic Law|Basic Law of Hong Kong SAR (April 1990) and Macao Basic Law|Basic Law of Macao 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 state that the existing capitalist system and the people's way of life shall remain unchanged for 50 years, and the laws previously in force shall be maintained. It is widely recognised 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. Image:Court system of China.gif|450px|right People's courts Under the Organic Law of the People's Courts (1983), judicial power is exercised by the courts at four levels:
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. Cases are decided within two instances of trials in the people's courts. This means that from a judgement or orders 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 high level, and the people's procuratorate may protest a court decision to the people's court at the next high 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 are military courts, maritime courts and railway courts. The military court, established within the People's Liberation Army, 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 National Supreme's 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". The Ministry of Public Security of the People's Republic of China|Ministry of Public Security 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. Historically, the legal profession has been insignificant in the PRC. In the late 1970s, there were no more than a couple of hundred practising 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 counselling services" (法律顾问处) and lawyers were regarded as "state legal workers". In 1986, the Chinese National Lawyer's Association was established in Beijing, followed by similar organisations around 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 legal aid. At present, there are more than 8500 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 modernisation. Since the entry of PRC into the World Trade Organisation, there has been progressive opening up of the legal service sector. A number of foreign law firms have entered the market, mostly specialising in cross-border business transactions, merger and acquisition, and copyright law. 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 specialised 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 schools and law universities in the PRC. The largest law schools are the five law universities:
Since the late 1990s, they 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. Aside from the law universities, there are many university-based law schools and law departments. The best-known ones are in Renmin University Law School and Beijing University, both in Beijing; Fudan University in Shanghai; Wuhan University in Wuhan; Jilin University in Jilin; Sichuan University in Chengdu; and Zhongshan University in Guangzhou. College level A feature of the Chinese legal training system is the network of specialised on-job internal training colleges and centers. The Supreme People's Court administers two training institutes: the National Judges College 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. 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 and circulars. Given laws and regulations greater detail would assist the PRC's economic development in the long term, as it increases certainty, encouraging market rationality|rational behaviour. However, in the short run, detailed law limits the flexibility to respond to rapid political and economic change. This indicates a fundamental difference in legal philosophy to that which exists in Western legal systems. The official rationale underlying the vagueness of enacted laws can be found in legal texts such as Theories on the Basis of Legal Science (法学基础理论) by Professor Chen Shouyi. Chen considers that law must have stability as the superstructure of society, but be able to change when economic relations change. 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 bargaining or to strike. The PRC constitution and laws provide for fundamental human rights, including due process, but there is general agreement, even among members of the government, that many of these rights are 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 in 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). Guanxi and corruption P.B. Potter suggests that personal, clientelist and familial relationships (often called guanxi) 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. 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. English sources Wang Chengguang and Zhang Xianchu, Introduction to Chinese Law. Hong Kong: Sweet & Maxwell Asia, 1997 Chinese sources Chen Shouyi, Theories on the Basis of Legal Science (法学基础理论). Beijing: Beijing Daxue Chubanshe (Beijing University Press), 1984 Shen Zongling (ed.), Jurisprudence (法理学). Taipei: Wunan Book Publisher, 1994
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Category:Law of the People's Republic of China| zh:中華人民共和國法律體系 This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Law of the People's Republic of China".
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