Law of the People's Republic of China

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.

The current law in Mainland China is almost all public law in the sense that it is designed to regulate behaviour, and parties cannot decide on their own to opt in or out. In its early stages, it was based on the doctrine of historical determinism as interpreted by Mao Zedong. Since 1979 it has been more reliant on Western models of law. Though the PRC legal system is distinct from other systems, it shares characteristics of the civil law system, reflecting the influence of heavily codified traditional Chinese law and 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.

History

1949-1953

The early legal system of the PRC was based on the Marxist concept of historical determinism and Mao Zedong's "theory of contradictions". Its goals were the establishment of socialist rule and the ultimate creation of a communist society. According to Chinese Communist ideology, the law and legal institutions existed to support party and state power. Because of this, the law of the PRC up to 1979 often took the form of general principles and shifting policies rather that detailed and constant rules.

After the Communist Party of China defeated the Kuomintang in 1949, the new regime quickly repealed the legal codes of the former ruling Republic of China. Most Kuomingtang era judges were also purged from the judiciary. A provisional constitution, called the Common Program, was adopted in September 1949. The most significant of the 148 laws and regulations of the Common Program dealt with marriage, land reform, corruption as well as the isolation and destruction of "class enemies".

During the land reform movement of 1949-51, where private property was seized by the state and re-distributed under the Agrarian Reform Law (June 1950), few formal cases were brought to court. Instead administrative agencies conducted mass trials in which large crowds of hostile onlookers shouted accusations. Hundreds of thousands of landlords, intellectuals, and other "counter-revolutionaries" were either executed or put into prison. In 1953, at the instigation of legal specialists, the PRC government began to promulgate separate criminal laws.

1954-1978

The Constitution Law of 1954 established the Constitution of the People's Republic of China.

In the absence of a comprehensive legislative structure, policy became the legitimate source of legal norms to fill the sometimes enormous gaps in the law. Party policy was considered superior to law, as the former was considered the "soul of the people's democratic system", as "not all party policies are necessarily enacted into laws".

Policy and ideological indoctrination proved extremely effective in ensuring social control. They were tied to new frameworks of social organisation including the household registration (户口) and work unit (单位) systems. In this way, social control was very similar to the application of customary law in traditional Confucian society. Administrative disciplinary measures (行政纪律处分), meted out by these systems, were used against those who did not follow the norms prescribed by policy. Recourse to law for punishment has been traditionally reserved for "class enemies". This was especially the case during the Cultural Revolution.

1978-

The post-Mao regime set about creating a modernising ideology that would salvage some legitimacy. At the third plenum of the 11th Central Comittee of the CPC in 1978, the Chinese government proclaimed the Four Modernisations, an integral part of which was building a modern legal system. This was accompanied by Deng Xiaoping's Four Basic Principles.

In 1979, the Criminal Code was enacted, the first statute since 1954. In the same year, the Sino-Foreign Equity Joint Venture Law, the first law governing foreign investment, was passed. Since then, more than 300 laws and regulations, most of them in the economic area, have been promulgated. To advance its policy of market-based reforms, China has adopted alien approaches to legal regulation, particuarly in the area of commercial law. China has now established a comprehensive scheme of legislation, including national laws, administrative regulations, and local rules.

People's congresses have been re-established at all levels, charged with the work of enacting law. The use of mediation committees - informed groups of citizens who resolve about 90% of the PRC's civil disputes and some minor criminal cases at no cost to the parties - is one innovative device. There are more than 800,000 such committees in both rural and urban areas.

The primary motivation has been to limit arbitrary behaviour by poweful officials and to provide standards for mangaging social, economic and political relationships, including foreign investment. Law is now perceived as a key element of regime legitimacy as it serves to institutionalise economic reform.

The adoption of a modern legal system has been driven by the central government in Beijing. While economic reforms were welcomed by most of the population, the new legal institutions, are still unsupported. Even in the marketplace, where customary normative frameworks are weak from decades of socialist supression, the weakness of mechanisms of enforcement still preclude observance of law.

In 1982, the National People's Congress adopted a new state constitution that emphasized the rule of law under which even party leaders are theoretically held accountable. This reconstruction was done in piece-meal fashion. Typically, temporary or local regulations would be established and after a few years of experimentation, conflicting regulations and laws would be standardized.

Legal reform became a government priority in the 1990s. Legislation designed to modernize and professionalize the nation's lawyers, judges, and prisons was enacted. The 1994 Administrative Procedure Law allows citizens to sue officials for abuse of authority or malfeasance. In addition, the criminal law and the criminal procedures laws were amended to introduce significant reforms. The criminal law amendments abolished the crime of "counter-revolutionary" activity. However political dissidents are sometimes charged on the grounds of subverting state security or publishing state secrets. Criminal procedures reforms also encouraged establishment of a more transparent, adversarial trial process. Minor crimes such as prostitution and drug use are sometimes dealt with under reeducation through labor laws.

Legal structure

The highest and ultimate source of legal norms in the PRC is the Constitution of the People's Republic of China.

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.

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.

Law-making and legislative authority

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 comittee, 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, 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.

Hong Kong and Macao

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 Basic Law of the HKSAR (April 1990) and Basic Law of Macao (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, call 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.

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 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 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.

With respect to justice, the government has promoted the ideal of legal formalism, the notion that the strict implementation of law is justified irrespective of the fairness of outcome. This ideal has been largely rejected by an increasingly cynical population. There is a perception that the implementation of law is dictated by party members, who are spared the implementation of criminal law by the substitution of party discipline.

P.B. Potter suggests that personal, clientelist and familial relationships 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.

The PRC constitution and laws provide for fundamental human rights, including due process, but some have argued that they are often ignored in practice. (See Human rights in China)

External links

Chinalaw Web. Maintained by the Chinese Law Society of the University of Maryland Schoool of Law. Resources on the laws of PRC, ROC, Hong Kong, and Macau.

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.