A Brief Introduction to the Legal System of China
As the third largest country geographically, China’s population is over one and a quarter billion. Subsequent to the fall of communism in the former Soviet Union, China is the largest and most powerful communist government in existence. Administratively, the country is divided into twenty-three provinces, five autonomous regions and four municipalities.
Map is from the CIA World Factbook
For additional background information see:
China has rich and extensive history spanning several thousands of years of civilization. Historians divide legal history into categories of traditional China and modern China. Traditional China legal history and structure is characterized in some of the following ways: feudalism, imperialism, and rule under emperors. Legal codes existed in traditional China, with the oldest surviving code being the Tang code promulgated in the seventh century AD. The Tang code constituted the foundation for the later developed codes of the Song, Yuan, Ming and Qing dynasties. These codes and statutes of law regulated matters that would be considered under criminal law under the modern legal approach. Further, there was no jurisprudential distinction between criminal and civil law, as penal sanctions occasionally applied to acts that would be covered by civil law today. Disputes between individuals (civil) dealing with family matters or land were generally settled through mediation. Such informal resolutions were conducted by respected leaders or elders in the villages who applied customary rules and concepts of morality to reach harmony between disgruntled individuals.
In traditional China the emperor was vested with the executive, legislative and judicial powers. While the laws created by the emperor were binding on all of his subjects, the same law did not bind the emperor. As the supreme judicial power, the emperor could determine the guilt of accused individuals, dictate the penal sentence, or modify the judgments given by lower judicial authorities.
Efforts to modernize the legal system were instituted by the Qing Empire in the very early part of the twentieth century. It became apparent that some aspects of the legal system, such as the harshness of criminal procedure and the lack of commercial law rendered China’s law primitive in comparison to legal systems of other nations. One initiative started in 1904 was the creation of a Law Reform Bureau in 1904, instilled with the task of translating foreign codes and drafting new laws. Another move in the modernization direction was the promulgation of an Imperial Constitutional Outline in 1908. However, before any of the drafted laws were implemented, in 1911 the Qing empire was overthrown. Nevertheless, the successive governments adopted some laws that were partially based on the draft laws of the Qing reform movement.
The Communist Party of China (CPC) was established July 1, 1921. Shortly after the CPC was founded, a politically tumultuous period referred to as the “New Democratic Revolution” encompassed three important struggles that the CPC engaged in. Included in this period were the Second Revolutionary Civil War (1927-37), the War of Resistance Against Japan (1937-45), and the Third Revolutionary Civil War (1945-49). In 1949 the CPC founded the People’s Republic of China (PRC).
For more information on the CPC refer to: http://memory.loc.gov/frd/ca/cntoc.html
The positions and powers of the President and the Vice President are established in Articles 79-84 in the Constitution of the People’s Republic of China (1982). The NPC elects individuals to fill these positions for a term of five years with a limit of two consecutive terms (Art. 79). Some of the powers entrusted to the President are the promulgation of statutes, the appointment and removal of various State Council members, the issuance of pardons, proclamations of martial law and states of war, as well as receiving foreign diplomats and ratifying or abrogating treaties with foreign nations (Arts. 80-81). The Vice President is to aid the President in carrying out his duties, and may carry out presidential functions delegated by the President (Art. 82).
The State Council is the government of the PRC under the authority of Articles 85-98. It is the highest organ of state power, and of state administration (Art. 85). The State Council consists of the Premiers, Vice-Premiers, State Councillors, Ministers in charge of ministries, Ministers in charge of commissions, Auditor-General, and the Secretary-General. The State Council’s term of office is five years (Art. 86). The State Council is given a number of functions and powers, including but not limited to: the adoption of administrative measures, rules and orders, submission of proposals to the NPC, creation and execution of a plan for national economic and social development, conducting foreign affairs and concluding treaties and agreements with foreign nations; protection of the rights of Chinese nationals abroad, and exercising any other functions that the NPC may delegate to it (Art. 89).
The National People’s Congress (NPC) is deemed to be the “highest organ of state power” in Article 57 of the Constitution of the People’s Republic of China (1982). The NPC is partially composed of a permanent body called the Standing Committee of the National People’s Congress (Articles 57, 65-69). The NPC is the unicameral body vested with the authority to establish the laws in China pursuant to Article 58. Deputies to the NPC are elected to their positions for five-year terms (Art. 60). Some powers of the NCP are to amend the Constitution, enact laws, elect the President and Vice President of the PRC, elect the President of the Supreme People’s Court, deciding questions of war and peace, and various removal powers (Articles 62-63). When the NPC is not in secession, the Standing Committes can enact amendments and additions to laws passed by the NPC (Art. 89)
Legislation is also created at more local levels by the people’s congresses of provinces, municipalities, autonomous areas and cities. The Constitution provides the structure, authority, and duties of the Local People’s Congresses in Articles 95-111. All of the local regulations that are passed by these lower people’s congresses must comport with the Constitution, laws passed by the NPC, and the people’s congresses above each of the local congresses in the hierarchy.
The stages of a typical bill in the NCP are presentation, examination, passing the bill and publication of the enacted law. See Chen supra at page 80.
For additional information regarding the NPC, visit:
The judicial system of the PRC is established in Articles 123-135, and consists of the people’s courts, the Supreme People’s Court, the people’s procuratorates, the Supreme People’s Procuratorate, military procuratorates and other special people’s procuratorates. Article 129 refers to the people’s procuratorates as “state organs for legal supervision.” In 1983 the NPC amended the Organic Law of the People’s Procuratorates, which included an enumeration of the powers and functions of the procuratorates. The functions seem to set up an organization which initially performs similar to a prosecutor in the United States, in that it oversees investigations by the public security organs and decides which cases will be prosecuted. However, the oversight of the procuratorates extends beyond investigation and trial, into supervision of the legal activities of the people’s courts, the execution of judgments, and the activities of prisons.
There is a hierarchy within the court structure from the top down: The Supreme People’s Courts, the Higher People’s Courts, the Intermediate People’s Courts, and the Basic People’s Courts. The Basic People’s Courts are comprised of more than 3,000 courts at county level, which are further subdivided into about 20,000 smaller units referred to as people’s tribunals located in towns and villages. There are 376 Intermediate People’s Courts and 31 Higher People’s Courts located in the provinces. See Albert HY Chen, An Introduction to the Legal System of the People’s Republic of China 107-108 (1998). Additionally, there are a number of specialized courts, for example those dealing with railway transportation, forest affairs, the People’s Liberation Army (PLA) and maritime issues. Jurisdiction is allocated partially through the Constitution, the 1979 Organic Law of the People’s Courts, the Law of Criminal Procedure, the Law of Civil Procedure, and the Law of Administrative Procedure.
Litigants are generally limited to one appeal, on the theory of finality of judgment by two trials. Cases of second instances are often reviewed de novo as to both law and facts. Requests for appellate review take the form of appeals and protests (in criminal cases). Appeals are lodged by parties to the case, defendants and private prosecutors. Protests are filed by the procuratorate in criminal cases when it is believed that an error has occurred in the law or facts as determined by the judgment or order of the court of first instance. In civil cases the procuratorate does not possess a right to file a direct protest, but it can initiate adjudication supervision via a protest. Adjudication supervision refers to a type of discretionary post-“final” decision review, which may occur in certain situations in criminal cases.
The Constitution also established the Central Military Commission (CMC), a organizational body empowered to direct the armed forces of China (Arts. 93-94). It is interesting to note that the Constitution does not enumerate the duties and powers of this governmental unit, as it does with the others. It does, however, establish that the CMC is responsible to the NPC, supporting the idea that the NPC is the highest organ of state power.
For additional information on the CMC visit:
The current Constitution of the PRC, adopted in 1982, is viewed as the highest source of law in the country. As previously noted, the Constitution establishes the framework of the government, in addition to codifying the general principles of government and society and listing the fundamental rights and duties of the people of China. Three prior constitutions from 1954, 1975 and 1978 partially contribute to composition of the current Constitution.
The preamble to the Constitution states some fundamental principles:
Both the victory in China’s New-Democratic Revolution and the successes in its socialist cause have been achieved by the Chinese people of all nationalities, under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought, by upholding truth, correcting errors and surmounting numerous difficulties and hardships. The basic task of the nation in the years to come is to concentrate its effort on socialist modernization. Under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought, the Chinese people of all nationalities will continue to adhere to the people’s democratic dictatorship and the socialist road, steadily improve socialist institutions, develop socialist democracy, improve the socialist legal system, and work hard and self-reliantly to modernize the country’s industry, agriculture, national defense and science and technology step by step to turn China into a socialist country with a high level of culture and democracy. Xianfa preamble (1982).
From this passage it is clear that the leadership of the CPC is stressed and solidified. Also, the guidance of Marxism-Leninism and Mao Zedong Thought is regarded as the proper intellectual framework and ideology for leading the country to a socialist state under the people’s democratic dictatorship. For a helpful explanation and analysis of these principles refer to Lin Feng, Constitutional Law in China 21-32 (2000).
Some of the general principles that are mentioned in the articles of the 1982 Constitution include: power of the country lies with the people (Art. 2), equality of all nationalities in China (Art. 4), principle of the rule of law, binding on the state as well as all others (Art. 5), and state involvement in the economy (Arts 14-15). As mentioned, the Constitution also lists fundamental rights and duties, for example: equality of citizens (Art. 33), freedom of speech, press, assembly, association, procession and demonstration (Art. 35), the right to personal dignity (Art. 38), right to criticize state organs (Art. 41), the duty and right to receive an education (Art. 46), duty to practice family planning (Art. 49); and the duty to pay taxes (Art. 56).
Law which is to have general impact is enacted by the NPC or its Standing Committee. The Standing Committee also enacts regulations, decisions and resolutions.
Administrative regulations are one type of legislative enactment by the State Council. The State Council and its ministries or commissions can also make rules. At the local level the people’s congresses can enact local regulations and the local people’s governments can make local administrative rules. With regards to the national autonomous regions, they are permitted to enact autonomy regulations and specific regulations. A novel concept, the Basic Law, developed for dealing with specific areas such as Hong Kong which had a legal system of its own prior to its return to China. In these areas, known as Special Administrative Regions, the basic law of the former system is maintained, as long the laws comport with the PRC Constitution.
The 1982 Constitution does not specify the treatment of international law in relation to the laws of the PRC. However, in practice the legislative approach has been to automatically incorporate international law as part of PRC law. If, however, the PRC has made a reservation to a provision of a treaty, this aspect or provision of the treaty is not implemented in the law.
Unlike common law jurisdictions such as the United States or England, there is no strict precedential concept for case law. In theory, each case stands as its own decision and will not bind another court. However, in practice lower people’s courts judges often attempt to follow the interpretations of the laws decided by the Supreme People’s Courts. See Ronald C. Brown, Understanding Chinese Courts and Legal Process: Law with Chinese Characteristics 82 (1997). 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.
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 states that the civil law governs the personal and property relationships between citizens and/or legal persons. Additionally, the civil law is comprised by other more specific pieces of legislation dealing with a vast array topics spanning marriage, land administration, environmental law, copyright, and trademark.
The first codification of the provisional Civil Procedure Law of the PRC was passed in 1982. In 1991, the provisional code was replaced through the enactment of the Law of Civil Procedure by the NPC. In a court of first instance, a case will proceed under one of two forms of procedure, either ordinary procedure, or summary procedure. Under ordinary procedure, a case is initiated by filing a writ with a court, who will examine the writ to determine if the requirements for bringing the action are met. If the requirements are met, then the court should file the case. If the court does not decide to file the case, this decision can be appealed by the plaintiff. (Art. 112) If the case is initiated, the court must serve the writ on the defendant, who is permitted to file a defense to the plaintiff’s claim.
Prior to the commencement of trial, it is the duty of the court’s adjudicative personnel to review the case and its materials and carry out an investigation seeking to collect the evidence that is necessary to the determination of the case. Also before to trial, mediation often with the hope that the parties can voluantarialy settle their dispute. In the event that the pretrial mediation is unsuccessful, the parties must be given notice that the case is going to proceed to trial, and when they are to appear before the court. See Chen, supra at 170-172.
There are three stages to the ordinary trial process. The first stage is investigation, where the parties and witnesses are questioned by the court, and there is the presentation of material and documentary evidence. (Article 124) The second is the court debate, this is comprised of the parties and their counsel offering their arguments. (Art. 127) The third stage is the judgment of the case, assuming that mediation is once again unsuccessful. (Art. 128).
Under the summary procedure, the basic people’s courts and its tribunals can decide simple civil cases in a less formalistic manner (Art. 142). The plaintiff’s claim may be presented orally, or the disputing parties can go directly to court together and request that the court issue an immediate resolution. Only one adjudicator hears the case, and the procedures are far less formal.
Appeals can be taken to the next higher level court by any of the parties to the case. A bench of adjudicators will review the facts and the law of the case, which can involve a open hearing, but one is not required. Also at the appellate level, a mediation may occur. (Art. 155). The decision by the court of second instance is final and legally effective. However, the adjudicative supervision can be initiated by a court, a party, or a procuratorate under Article 179.
The current Criminal Law Code was first adopted in 1979 and later amended in 1997. As supplement to the Code, there have been several other additions to the criminal law enacted primarily by the NPC’s Standing Committee. Aside from protecting society from harm, a key goal underlying the criminal laws, and the system in general are to reform the person convicted of the crime. The means by which the Chinese corrections system attempts to reform criminals includes education, labor and skills training.
The modern Law of Criminal Procedure was initially established in 1979, and subsequently amended in 1996. There are five principle stages of a criminal case: initiation, investigation, prosecution, adjudication, and execution of the sentence. The filing, or initiation of criminal cases and the investigation is carried out by the public security organs or the procuratorate. Often the public security organ is responsible for detaining suspects (no prior authorization needed from procuratorate), executing arrests (prior authorization needed) , initial questioning and surveillace of residence (Article 38 of the Criminal Code). The prosecution is to be initiated by the procuratorate if the facts indicate a crime has been committed. The procuratorate also questions the suspect, and then issues one of four possible determinations:
1) send the case back to the public security organ for further investigation;
2) initiate a public prosecution;
3) excuse the suspect from prosecution; or
4) decide not to initiate a prosecution
See Chen, supra at 158.
In the instance where the procuratorate decides to initiate a prosecution, the case then advances to the court of first instance, usually the local basic people’s court depending upon the nature of the crime (see chart above for more detail on jurisdiction). At the formal trial, there are five stages. First the chief adjudicator begins the and the procurator reads the indictment. Second, the adjudicators question the defendant and the other parties (procurator, defense and victim) may be given permission to interrogate defendant. Also during this stage other witnesses are examined by the adjudicators and the procurator, and if granted permission the defendant and his defender may question the witnesses. The third stage is the oral argument phase, “court debate,” where the procurator, victim, defendant and defender are permitted to make speeches supporting their cause. Fourth, the chief adjudicator will announce that the court debate is finished and the defendant is given the right to make a final statement. Finally, the case is deliberated by the court, and the judgment is announced in public.
After the court of first instance has rendered its decision, the case is subject to one subsequent review in a court of second instance via an appeal or a protest. The defendant, or the person who brought the prosecution (in a private prosecution) are permitted to initiate an appeal within the statute of limitations period (put in link here). The procuratorate may file a protest if it is displeased with the first instance court’s disposition of the case. After the court of second instance has decided a case it is deemed legally effective. Nevertheless, the decision may be subject to challenge via the adjudicatory supervision.
For more information relating to criminal law and procedure, visit:
The Law of Administrative Litigation, passed in 1989 by the NPC allows citizens, legal persons and organizations to bring legal challenges against certain administrative action. For a brief outline see the following page. In addition to the Law of Administrative Litigation, there are numerous administrative laws and rules dealing with particular subjects, and issued by various state and local organs.
Administrative adjudication takes two forms benefit-conferring and burden- imposing. 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. See Chen, supra at 179. 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 or rulemakings.
The study of law in China consists of a three-year program at a university or a department. A graduate from a law university, who has gained at least two years of legal work experience is eligible to take a bar examination offered two times a year. If an individual successfully completes all three stages, she can apply for a certificate qualifying her as a lawyer. http://jurist.law.pitt.edu/world/china.htm. Lawyer’s qualification may also be obtained without a university law degree. A person holding a non-law degree and three years of legal experience, or having worked as a judge or procurator, may also seek qualification. These individuals are also required to take the national bar examination. See Chen, supra at 132.
For more information on legal education visit:
Reference to some additional web resources:
Special thanks to Joe Underwood who was kind enough to give me permission to display his great photos from his various trips to China!