Interpreting China's Legal System

Lin Li

• Publisher: WSPC
• Year: 2018
• eBook ISBN: 9789813231320
• Topic: Politics & International Relations
• Subtopic: International Law
• Index: Politics & International Relations

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This book systematically and concisely expounds the construction process of China's legal system since China's reform and opening-up. Chapter 1 defines the legal system in China and describes the development of China's legal system from 1949 to 1978. Chapter 2 introduces China's legislative system, including its historical development, division of legislative functions and power, and legislative procedures. Chapter 3 compares the differences between the law systems of other countries and China's law system and how other law systems in the world influences the law system in China. Chapter 4 studies China's constitutional law system, including its historical development, forms of law and enforcement of the constitution. Chapter 5 introduces China's administrative legal system, including main principles, administrative legislation and administrative compensation. Chapters 6, 7, 8, 9 describe China's civil and commercial legal system, China's economic legal system, China's social legal system and China's criminal legal system respectively. Chapter 10 introduces China's legal system in litigation and non-litigation procedure in terms of criminal, civil, administrative and non-litigation procedures. Chapter 11 analyses the legal system of the special administrative regions in China and its relationship with China's legal system. The last chapter, Chapter 12 studies the relationship between the international law and China's domestic law system.

--> Contents:

• Introduction to China's Legal System
• China's Legislative System
• Law System with Chinese Characteristics
• China's Constitutional Law System
• China's Administrative Legal System
• China's Civil and Commercial Legal System
• China's Economic Legal System
• China's Social Legal System
• China's Criminal Legal System
• Chinese Legal System in Litigation and Non-litigation Procedure
• "One Country, Two Systems" and Legal System in the Special Administrative Region
• International Law and China's Law System

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--> Readership: Policymakers, professionals, academics, undergraduate and graduate students interested in China's legal system. -->
Keywords:China;Legal System;International Law;Special Administrative Region;Economic Legal System;Social Legal System;Criminal Legal System;Litigation and Non-litigation ProcedureReview: Key Features:

• Provides comprehensive and systematic analysis of China's legal system

Chapter 1

Introduction to China’s Legal System

Part 1.Definition of Law and Legal System

When it comes to the conception of legal system, there is no way to evade the key word “law”. A comprehensive grasp of what “legal system” means in the Chinese context is not possible without a through understanding of what the Chinese mean by “law”.

1.1.Law and its Sources in Chinese Context

1.1.1.What is Law?

In the western context, different schools of law adhere to diversified or even opposite explanations and views on “law”. For instance, the Normativismus school — the legal positivists in modern western law represented by Herbert Hart — holds a common conviction: Law is a set of special rules directly or indirectly utilized by a society to determine what actions shall incur punishment or be executed by force, subject to public power. In the will-oriented school, the French philosopher Jean Jacques Rousseau believes that law is but “the record of will”¹; the German law philosopher Georg Wilhelm Friedrich Hegel deems law as the demonstration of will.² However, in the fact-oriented school, the American jurist Karl N. Llewellyn thinks that law does not consist of rules on paper issued by authorities, but is that demonstrated by the practice of officials or civilians, especially by the judgment of law officers, and ruling on disputes by officials is law.³

In ancient Chinese, “fa

” or “falü

” (law) was endowed with unique meaning. According to Shuowen Jiezi

(Origin of Chinese Characters), the first wordbook in Chinese history,

in simplified Chinese stems from the ancient variant

This Chinese character is composed of three parts:

and

signifies water, showing that xin

(punishment) should be just;

(zhi) is a holy creature in Chinese mythology and said to intensely loathe, unprincipled people;

(qu) means “leave”,⁴ showing that those having committed evil deeds can be scared away by zhi. This interpretation implies that in ancient Chinese, “law

” and “punishment

” could be used indiscriminately:

suggests that law embodies “justice” and

and

suggest that law plays the role of determining right and wrong. Zhi, also called xiezhi in Shen Yijing

(The Classic of Chinese Myths and Fantasies), a collection of weird ancient Chinese stories, “has the power to identify guilty persons. It captures immoral people and spares those who are innocent”.

In ancient China, “law” was identified not only with “punishment

”, but also with “discipline

”. According to Tanglu Shuyi

(the earliest written law in East Asia), “Law is also called discipline for they share the same meaning”. The combination of “law” and “discipline” as a proper phrase, seen only occasionally in ancient literature, is used more widely in modern times. In the late Qing dynasty, due to the influence of the western continental law system from Japan and the demand for revolution at that time, “law” and “law and discipline” started to be used interchangeably as one word.

In contemporary China, most legal textbooks define “law” as a system of rules governing human conduct, formulated or recognized by the country and enforced, reflecting the will of the ruling class determined by material reality, prescribing people’s rights and obligations and aiming at the identification, protection and development of social relations and orders serving the ruling class.⁵ In terms of its form, the contemporary usage of “law” in Chinese can be either generalized or specialized. “Generalized law” denotes law as a whole — any legal document in China’s law system. Meanwhile, “specialized law” means law and basic law legislated by the National People’s Congress (NPC) and its Standing Committee. As a conventional practice, Chinese scholars refer to generalized law as “law” and specialized law as “legislation”.

1.1.2.Sources of Law in the Chinese Context

“Sources of Law” (SL), refers to the existential forms of law. Polysemic, the term “Sources of Law” originates from “Fontes Juris” in Roman law and literally means the fountain of law. The term had not yet appeared when William Blackstone published Commentaries on the Laws of England in the 18th century. In the 19th century, John Austin first introduced the notion of sources of law in his The Province of Jurisprudence Determined (1863), implying that sources of law is the sovereign. In Jurisprudence published in 1883, E.C. Clark classified sources of law into two separate notions: “Sources of Law” and “Forms of Law”.⁶ The former refers to the origin of the contents of law, whereas the latter refers to the documents supplied to understand law. According to Clark’s distinction, sources of law is taken as the substantive origin from which law’s authority and effectiveness come into existence, as well as its history and content origins; “forms of law” is regarded as the existential forms of law, including written law, common law and so on.

Chinese scholars have divided sources of law into different categories from different perspectives, for instance, modal and substantive sources, formal and informal sources, direct and indirect sources, primary and secondary sources and so on. These categorizations are reasonable and scientific to some extent, but have their own limitations. In fact, laws in different countries or under different cultural backgrounds have followed different tracks, and no single uniform model can simply summarize or describe their processes of development. Likewise, as a constituent part of the law culture of different kinds and in different countries, sources of law bears no simple and uniform developing mode.

In contemporary China, sources of law refers to the direct sources of law, mainly including the constitutional law, laws, administrative rules, local laws and regulations, treaties and so on.

(1)Constitutional Law

In most countries adopting written laws, the constitutional law is the fundamental law, with the supreme power being in the country’s law system, and is the most basic source of law. The sources of China’s current constitution are composed of Constitution of the People’s Republic of China issued in 1982, its 31 amendments formulated in 1988, 1993, 1999 and 2004, and other constitutional laws, including Organic Law, Election Law, Law of the People’s Republic of China on Regional National Autonomy, Basic Law of the Hong Kong Special Administrative Region (SAR) of the People’s Republic of China, Basic Law of the Macao SAR of the People’s Republic of China, Law of the People’s Republic of China on the National Flag, Law of the People’s Republic of China on the National Emblem, Nationality Law of the People’s Republic of China, Law of the People’s Republic of China on Deputies to the NPC and to the Local People’s Congresses at Various Levels and so on. The Constitution is the fundamental law of China, enjoying the supreme status in terms of sources of law and effectiveness. All other laws and regulations shall not contravene the Constitution. Its supremacy is determined by the following three factors: first, the Constitution regulates the basic livelihood and systems of the country as well as the fundamental rights and obligations of citizens; second, it acts as the basis of other laws’ sources of law and their enactments; third, its amendments must follow strict procedures, according to which an amendment can be made only if it is first proposed by the NPC Standing Committee, or by more than 20% of the NPC deputies, and then adopted by more than two-thirds of the NPC deputies.

The supreme status of China’s Constitution as the source of law is mainly demonstrated in its interpretation and supervision. First, the Constitution prescribes that the NPC Standing Committee oversees its interpretation and implementation. The interpretation of the Constitution is mainly represented by the laws and decisions adopted by the NPC or its Standing Committee on the basic spirit and the meanings of the articles of the Constitution, which can also be interpreted through resolutions, decisions and so on. Second, the NPC is entitled to change or rescind improper decisions made, or laws formulated, by its Standing Committee if they contravene the Constitution. Third, the Standing Committee is entitled to supervise the State Council, the Central Military Committee, the Supreme People’s Court and the Supreme People’s Procuratorate, and rescind administrative rules or regulations, decisions or orders made by the State Council if they contravene the Constitution or its related laws. The Standing Committee is entitled to rescind local administrative rules, regulations or resolutions made by the NPC and its Standing Committee at provincial level, if they contravene the Constitution, its related laws, administrative regulations or rules.

With the adoption and implementation of the “One Country, Two Systems” policy, the supreme status of China’s Constitution as the source of law makes an exception for the Hong Kong SAR and the Macao SAR. This exception is necessary due to the adoption of capitalism in these SARs, with the premise that the Chinese mainland, the greatest part of the country, persists in its socialist ideology. The basic laws of the Hong Kong and Macao SARs are formulated based on Constitution of the People’s Republic of China and correspond to its regulations. Under this premise, the legislation in these two SARs is based on the basic law, and no law made by the legislative councils of Hong Kong and Macao should contravene the basic law. On the part of the law’s source of effectiveness, the basic law does not require that all the laws in the SARs should contravene the Constitution, which demonstrates the great autonomy of the two regions in sources of law and guarantees the implementation of the “One Country, Two Systems” policy from the source of law.

(2)Law

Generally speaking, the English word “Law” has two meanings: first, it pertains to social norms and orders; second, to widespread laws in the development of nature or society. The former is often referred to as “normative laws”, whereas the latter “descriptive rules” or “scientific laws”. Some Chinese scholars divide “Law” into “law” and “legislation”, treating them as two distinct notions. They hold that “law” is above “legislation” and guides it and so “law” is the substantive source of “legislation”. But, according to the modal source of law, “Law” in fact shares the meanings of “law” and “legislation” simultaneously, which are not vastly different.

China’s Constitution ranks the legislative regulatory documents made by the NPC and its Standing Committee below the Constitution in terms of the source of law, which includes “basic law” and “law”. In the same Constitution, two different notions in sources of law are used: “the basic law” and “law”, with the former referring to laws made by the NPC and the latter made by the NPC Standing Committee. The Constitution provides that the NPC is responsible for making and amending criminal, civil, governmental and other basic laws and that the NPC Standing Committee is responsible for making and amending laws other than those made by the NPC and, when the NPC is out of session, is entitled to partially supplement and amend a law made by the NPC, without contravening the fundamental principles of the law concerned.

In sources of law stipulated in China’s Constitution, the basic law as the legal source and the law are drastically different in three ways. First, the legislative councils are different. The basic law is formulated by the NPC, whereas the law is made by its Standing Committee. In China, the legal status of a legislature is the fundamental factor determining the rank of the efficacy of the laws formulated by it, that is, the higher legal status a legislature has, the higher the efficacy its laws enjoy. Second, their contents are different. The basic law adjusts and regulates basic national systems and basic social relations and sets the basic rights and obligations of citizens, whereas the law seldom has the authority to regulate the contents of the “basic law”. Third, they are different in efficacy. The formulation of laws shall not contravene the basic law; the NPC Standing Committee can only partially supplement and amend the basic law without contravening it. But this provision and other related provisions of the Constitution go against the above understanding, which has a possible explanation.

The above-mentioned provision of the Constitution says that the NPC has the authority to make the “basic law”, and the NPC Standing Committee has the right to make and amend laws other than those made by the NPC. In the same provision, the same set of norms made by the NPC are called “basic laws” and “laws”, the notions of which are confused in terms of sources of law. In addition, the Constitution provides that the State Council and the NPC Standing Committees at various levels are entitled to make administrative or local regulations without contravening the Constitution or laws. Here it states that it is “laws”, but not “the basic law”, that cannot be contravened. Therefore, it is believed that the two terms “the basic law” and “laws” stated in China’s Constitution cannot be interpreted or explained separately; on the contrary, they are one and the same notion. This viewpoint is not convincing in that if they are one notion, it will be redundant to use “the basic law” in the Constitution; if they are the same in sources of law, it will be improper to say “laws” made by the NPC Standing Committee contravening “the basic law” made by the NPC, as they are the same thing, and one thing cannot contravene itself. If they are different, how do we distinguish them in sources of law when they contradict each other? Thus, a problem arises in practice: Is the legal source status of Basic Law of the Hong Kong SAR and Basic Law of the Macao SAR a matter of “the basic law” or of “laws”? If it is a matter of the basic law, there is no provision in the Constitution for “not contravening the basic law”. Does it imply tha...

Table of contents

• Cover Page
• Title
• Copyright
• About the Author
• About the Translator
• Contents
• Chapter 1 Introduction to China’s Legal System
• Chapter 2 China’s Legislative System
• Chapter 3 Law System with Chinese Characteristics
• Chapter 4 China’s Constitutional Law System
• Chapter 5 China’s Administrative Legal System
• Chapter 6 China’s Civil and Commercial Legal System
• Chapter 7 China’s Economic Legal System
• Chapter 8 China’s Social Legal System
• Chapter 9 China’s Criminal Legal System
• Chapter 10 Chinese Legal System in Litigation and Non-litigation Procedure
• Chapter 11 “One Country, Two Systems” and Legal System in the Special Administrative Region
• Chapter 12 International Law and China’s Law System
• Index