The Legal System of China
Chinese society is a civilization that traces its roots back to ages before Christ. Several states and empires were founded by Chinese civilization, and it continues to exist today. It is impossible to say that an old society like China does not have a tradition of law. In imperial China, legal rules were applied to government officials to create order at the state level. The era of Maoism between 1949-1976 is defined as a period of legal regression. However, it does not mean that there was no considerable legal system in the country during this period. There were courts and legal rules in the country but a whole of them were connected to an arbitrary regime.
Today, China is one of the most powerful countries in our world, both economically and politically. As a result, several legal reforms have been made in the country to strengthen the foundation of this powerful situation and attract more investment from global companies and international firms. The modern legal system of China has been greatly influenced by Confucianism, Marxism, and Maoism (Gu, 1999). A significant amount of legislation was influenced by Western legal ideology, and the country managed to create a visible civil law tradition. However, the supremacy of the National People’s Congress and the Communist Party still continues. In addition, there is a hierarchical law-making body throughout the country (Ohnesorge, 2006). These aspects are obstacles to defining China as a law-based country. In this article, the general structure of the legal system of China and the regulations in the country are going to be represented.
History of the Development of the Chinese Legal System
As mentioned above, China is a prehistoric civilization, and it has a tradition of state and administration. In Imperial China, law was used to govern the common people of the empire and its bureaucracy (Ohnesorge, 2006). It was a system based on Confucianism, and there were harsh punishments for crimes such as exile or execution. The first national court system in China began to be applied in 1902 (Gu, 1999). Before the Communist revolution, a mixed legal system, which combined elements of the traditional imperial law system and Western legal rules, continued to be applied. Until the civil war and the Communist revolution in 1949, the country was governed by this mixed legal system.
As a result of the "Great Proletarian Cultural Revolution" of 1966, the legal development of the country dramatically halted (Gu, 1999). During the Communist Party's rule, there was no well-established legal system. At that time, there was no division between different branches of law, such as criminal law and civil law. In particular, Mao's Cultural Revolution period is known as the "lawless" era of the country. However, due to the increasing complexity of social relations and the division of social classes, this legal system could not protect its own existence (Jingwen, 2011). In the 1970s, at the onset of the country's economic development, China enacted a vast body of laws. These legal developments partially departed from the ideological boundaries of socialism and introduced elements of the Western legal system for economic management (Liu, 2011). During the 1980s and 1990s, in the pursuit of establishing a socialist market economic structure in the country, Maoist policies were set aside, and the rulers of the country began developing a constructive legal system (Gu, 1999). To meet the requirements of the World Trade Organization (WTO), China started protecting the rights of its society through new legislation. These developments aimed to compete with neighbouring Asian countries such as Japan, Taiwan, and Australia. Finally, in 2007, a distinctively Chinese Socialist Law with special characteristics was introduced (Jingwen, 2011). In the current Chinese legal system, judicial explanations play a more prominent role in the implementation of laws.
Separation of Powers
The current constitution of China acknowledges the primacy of the law and the separation of powers system. However, there is no clear-cut division among the legislative, judicial and executive branches. The primary legislative body in China is the National People's Congress (NPC). A significant number of Chinese Communist Party members hold government positions and the membership of NPC at the same time, and the party remains the ultimate authority in governing matters (Liu, 2011). The NPC and its Standing Committee, known as the SCNPC, play a crucial role in the legislative process. Its members are elected through a secret ballot for five-year terms (Gu, 1999). Additionally, local governments and administrative bodies represent the interests of the Chinese people (Liu, 2011).
According to the Chinese constitution, the National People's Congress has the authority to appoint the country's president, the president of the Supreme Court, and members of the cabinet. The composition of the Standing Committee of the NPC is also determined by members of the party, as per the Chinese Constitution. Additionally, the appointment of government and judicial officials is subject to the will of the Communist Party (Liu, 2011). Consequently, it can be stated that the execution of power in the country lies within the purview of the Communist Party. Moreover, there is a structural similarity between China and the United States in terms of their federal structures. China has various national, provincial, and local institutions, and this system has been significantly influenced by the U.S. governance system (Liu, 2011).
The highest judicial authority in China is the Supreme Court, serving as the country's superior court. Below the Supreme Court, there are High People's Courts at the provincial level. Additionally, there exist intermediate courts and first-instance courts throughout the country (Liu, 2011). Consequently, all of these courts are accountable to the NPC and the Communist Party.
Hierarchical Order of Courts
Similar to other federal countries, China employs a court system at both the federal and state levels. At the federal level, there is a Supreme Court, and at the local level, there are various types of courts, including courts of first instance, intermediate courts, and special courts. Notably, China does not use a jury system in its courts, and trials are generally open to the public, except when cases involve state secrets, trade secrets, or personal privacy (Liu, 2011). In terms of administrative matters, these courts are subject to the regulations of the Ministry of Justice and decisions made by local authorities.
Supreme Court
The Supreme Court in China holds the highest authority in matters related to criminal prosecutions and governmental issues. The judicial decisions rendered by these courts exert significant influence throughout the country (Liu, 2011). The explanations provided by the Supreme Court of China serve as guiding principles for Chinese judges and foreign lawyers conducting business in China. Over time, the court's decisions have become more diverse, leading to the development of new types of legal interpretations (Wang, 1995). However, it is important to note that the Supreme Court remains accountable to the NPC (Liu, 2011).
High People’s Court of China
There are more than 30 High People's Courts in China at the provincial level (Liu, 2011). These courts, exceeding 30 in number, are considered the superior courts within their respective provinces. Decisions made by intermediate courts and special courts can be appealed to these High People's Courts. Occasionally, they also act as intermediate courts, particularly in criminal cases. The members of these courts are appointed by the provincial administrations.
Intermediate People’s Court of China
There are 400 intermediate courts in China, each covering an entire province (Liu, 2011). Among these, three specialize in administrative cases, criminal cases, and civil cases, and they serve as the reviewing bodies for cases initially heard at the first instance courts.
Courts of First Instance – Basic People’s Court of China
China has more than 3000 first instance trial courts at the county and district levels (Liu, 2011). These courts are considered the most fundamental level of the Chinese judicial system. They are responsible for conducting trials in administrative, civil, and criminal cases, with no distinct specialization among them in terms of their functions.
Special Courts in China
The first among these special courts are the Maritime Courts, with 10 such courts located in various parts of the country (Liu, 2011). The second type is the Environmental Courts, which number over 50 across the nation. The decisions made by these special courts can be directly appealed to the High People's Courts. Furthermore, there are Railway Transportation Courts, Military Courts, Courts of Forestry Affairs, and Courts of Agricultural Cultivation as well (Liu, 2011).
Lawyers and Alternative Dispute Resolution Methods
The attorney system in China was heavily influenced by Communist ideology, and from 1957 to 1980, no private law firms were permitted to operate in the country. During this period, lawyers exclusively worked for the government. The first cooperative law firm in China was established in 1988. Over time, the number of self-employed lawyers grew, and by 1997, their numbers had reached 100,000. Additionally, the number of law firms in the country ranged from 8 to 265, and these numbers have since increased (Gu, 1999). The Chinese government has recognized the importance of foreign law firms in national economic development and has allowed foreign firms to establish new offices in Exclusive Economic Zones within the country (Gu, 1999).
The mediation rules in China began to take shape after 1989 under the guidance of Urban Neighborhood or Village Resident Committees. During this period, arbitration and litigation procedures also evolved in the country. New arbitration centres, such as the China International Economic and Trade Arbitration Commission [CIETAC] and the China Maritime Arbitration Commission [CMAC], were established. Furthermore, the 1996 Arbitration Law introduced the practice of arbitration for resolving domestic disputes as well (Gu, 1999).
Constitutional Law
The first constitution of China was the 1949 Constitution, which marked the beginning of the Communist administration. This constitution was influenced by the Soviet Union's Constitutional Act of 1936. Later, in 1975, the Constitutional Act of 1975 came into effect, reflecting Mao's ideology. Today, China operates under the 1982 Constitutional Act. It's clear that the 1949 and 1982 Constitutional Acts of China share common communist ideologies. However, the significant advancement in the 1982 Constitutional Act was the recognition of the supremacy of the law, even above the National People's Congress and the Communist Party (Chen, 2000).
The Constitution of China can be defined as a guideline rather than a practical source of law. It serves as an instrument of policy and represents the will of the politically dominant class in the country. In fact, the courts are not obligated to rely on the Constitution of the country. The modern Chinese constitution has two main aims: social stability and national unity (Gu, 1999). The general principles of the 1986 amendments allow individuals and legal entities to recognize their rights (Liming, 2019). For example, the Constitution now includes a provision for citizens who have suffered damage caused by the actions of state organs, requiring compensation (Ohnesorge, 2006). On the other hand, many Western scholars outside of China do not consider the Constitution as a guarantor of fundamental rights.
Civil Law and Modern Socialist Law
During Mao's era, Chinese law was heavily influenced by Marxist-Leninist philosophy, affecting areas such as family law and labor law. In particular, the foundations of Chinese Civil Law can be traced back to the Soviet Union and Eastern European countries. However, in the 1980s, a significant interaction between China and the Western world began, with the civil law and common law systems of Western countries gradually influencing China's legal system (Chen, 2000). By the early 2000s, a modern Chinese-style private law system had been established. This contemporary legal framework draws from a rich tradition of law, including European Civil Law, the socialist legal system of the Soviet Union, the federal legal system of the United States, and even principles from imperial Chinese Law (Liu, 2011).
As China embarked on its path of economic development, it became increasingly influenced by the legal systems of Continental Europe, Japan, and other Western countries. The nation began to analyze the shortcomings in its legal system and initiated various experiments to enhance it (Liming, 2019). These reforms drew inspiration from German and French law (Chen, 2000). Throughout the 1980s and 1990s, a revolution in China's civil law system occurred, exemplified by the Civil Code of 1987. This legislation clearly outlined fundamental civil rights and the responsibilities of state organs (Ohnesorge, 2006). Under the guidance of the Communist Party in 1980s and 90s, a major legislative process unfolded, resulting in the enactment of various laws such as the General Principles of the Civil Law, the Marriage Law, the Law of Succession, the Adoption Law, the Real Right Law, the Trademark Law, the Patent Law, the Copyright Law, the Contract Law, the Tort Liability Law, the Law of the Application of Law for Foreign-related Civil Relations, and others. These legal reforms aimed to protect the freedom of marriage, promote monogamy, uphold gender equality, and recognize the irreplaceable value of the family, all of which were enshrined in law (Liming, 2019).
Despite these new developments, it is not possible to disregard the enduring influence of socialism and regulations from the Soviet Union on Chinese law. In addition to adopting innovations from Western countries, these legislation continue to bear the imprint of socialist principles and Soviet Union regulations.
Criminal Law
Chinese criminal law began to take shape during Mao's rule, primarily drawing on the Soviet Union's criminal law framework. The Criminal Procedure Code was also established during the Cultural Revolution, and interestingly, even the headings and the order of articles in these codes mirrored their Soviet counterparts (Chen, 2000). In 1979, the Chinese Criminal Code underwent refinement through interpretations by the Supreme Court. Consequently, the significance of judicial decisions in Chinese Criminal Law has grown (Wang, 1995). Today, this area of law boasts the highest degree of codification (Jingwen, 2011), and a robust system of criminal rules remains in place. For instance, penalties such as execution or exile continue to be applied in the country.
Administrative Law
The field of administrative law in China encompasses more than 80 laws across various branches, accounting for approximately 35% of all laws in the country (Jingwen, 2011). The revolution of administrative law in China commenced in 2000. In an effort to streamline the intricate normative structure of the nation, the government began promulgating new administrative rules and regulations in 2001, establishing a new hierarchy to clarify the jurisdictional system (Ohnesorge, 2006). According to the views of most foreign investors, the current Chinese administrative law regime is considered adequate to justify their investments (Ohnesorge, 2006).
Business Law and Commercial Law
Throughout this article, we have illustrated how China's economic growth has influenced the evolution of its legal system. It is natural that the most significant advancements have occurred in the realm of commercial law and business law. By 2011, a total of 34 new laws had been implemented, constituting approximately 14% of the overall legislative framework. These new regulations encompass a wide range of areas, including the Company Law, the Partnerships Law, the Negotiable Instruments Law, the Insurance Law, the Auction Law, the Securities Law, the Security Law, and more (Jingwen, 2011). These changes have established clear legal rights for both local and foreign entities and have introduced a precise definition of legal personhood. Collectively, these developments have played a pivotal role in shaping the distinct social economy of China. The Chinese government refers to this new system as Socialist Modernization (Liming, 2019).
In the realm of contract law, a significant milestone was reached with the enactment of the Contract Act in 1999, which introduced a three-pillar contract law system in China. This achievement marked a crucial step in China's legal development and transition towards a market-oriented economy. The three laws governing contracts reflect the government's commitment to building a planned economic system. Chinese Contract Law encompasses the fundamental principles of ordinary contracts.
Additionally, there are various related legislations associated with Chinese contract law, including the Law of Technology Contracts was enacted in 1987, the Law on Sino-Foreign Cooperative Enterprises in 1988, the Copyright Law in 1990, the Company Law in 1993, the Guaranty Law, Insurance Law, and Negotiable Instruments Law in 1995, the Law on Township Enterprises and the Auction Law in 1996, and the Securities Law in 1998 (Liming, 2019).
Future of the Chinese Law System
According to many legal scholars in Western countries, China is not typically regarded as a country with a rule of law or legal superiority. There is a lack of separation of powers, and the three functions of the state—legislation, jurisdiction, and execution—are closely tied to the Communist Party. This assessment holds true, as a legal system that cannot effectively oversee and control all entities within a country cannot be classified as a fully developed legal system. However, it is worth acknowledging that China has undergone significant legal reforms during its development. Comparing the current state of the legal system to its past, there has been substantial progress. If China continues to undertake reforms and make advancements in the field of law, it has the potential to evolve into a country with a well-developed legal system in the future. The trajectory of its legal development will play a pivotal role in determining its status in this regard.
Bibliographical References
Chen, A. H. (2000). Socialist Law, Civil Law, Common Law, And The Classification Of Contemporary Chinese Law. In Law-making in the People's Republic of China (pp. 55-74). Brill Nijhoff. Gu, Y. (1999). Entering The Chinese Legal Market: Guide for American Lawyers Interested in Practicing Law in China. Drake Law Review, 48(1), 173-210. Liming, W. A. N. G. (2019). The Modernization Of Chinese Civil Law Over Four Decades. Frontiers of Law in China, 14(1), 39-72. Liu, J. (2011). Overview of the Chinese Legal System. Environmental Law Reporter News & Analysis, 41(10), 10885-10889. Ohnesorge, J. (2006). Chinese Administrative Law in The Northeast Asian Mirror. Transnational Law & Contemporary Problems, 16(1), 103-164. Jingwen, Z. (2011). The socialist legal system with Chinese characteristics: Its structure, features and trends. Social Sciences in China, 32(3), 87-103. Wang, S. (1995). The Judicial Explanation in Chinese Criminal Law. American Journal of Comparative Law, 43(4), 569-580.
