Author: Catherine Cheng Jie Ph.D. Candidate Beijing University

The development of China's legal system can be divided into three stages. The first stage is from 1949 to 1954, when the PRC began to set up its legal system. During this stage the legal system was based on a combination of pre-1949 Chinese law and the Soviet model. The second stage is from 1954 to 1979, when, with the exception of the ten-year long interruption of the Cultural Revolution, the PRC developed a typical socialist legal system. The third stage encompasses the period from 1979 until now. China's current legal system remains in the socialist mould but due to the open-door policy which was initiated in 1979 Chinese law has become more international, incorporating elements of foreign contract law, civil law, criminal law and constitutional law, among others. An overview of the Chinese legal system reveals it to be an organic, comprehensive and unified whole consisting of well-defined divisions or branches of laws and varieties of functional organs. In this respect it resembles the civil law tradition as opposed to the common law system.

Sources of Law and the Law-making System

The majority of legal theorists divide Chinese law into two types: substantive law and procedural law. The major branches of substantive law include constitutional law, administrative law, criminal law, civil law, economic law, family law and labour law; the procedural law of the PRC consists of three parts: criminal, civil and administrative.

I. The Constitution

The Constitution is the highest law in the Chinese hierarchy of law norms. It is generally recognised as the mother law of all other laws; it forms the foundation of all other laws and has a higher force than all other laws. The Constitution also provides for the fundamental political, economic and cultural institutions in China. The current Constitution was promulgated in 1982 and has been amended three times with a total of 12 amendments.

II. Legislative Bodies

The major organs authorised to enact laws or normative documents having legal effect are identified in the Constitution. The National People's Congress (NPC) is the supreme legislative organ in the PRC. It has the power to enact and amend basic laws such as criminal law, civil law, and laws relating to the organisation of state organs. The NPC can also amend the constitution, although there is a special procedure (requiring a two thirds majority) for constitutional amendment which is different from the ordinary procedure for making laws. Under the Constitution four other bodies also have legislative power, in descending order of authority: the NPC Standing Committee, the State Council, the people's congresses at provincial level and the people's congresses of national autonomous regions.The NPC Standing Committee may enact and amend all laws except those which may only be enacted by the NPC, provided that the supplements and amendments do not contravene the basic principles of the original laws. The State Council may enact administrative regulations in accordance with the Constitution and the laws. The people's congresses at provincial level (including those of municipalities directly under the central government) and their standing committees may enact local regulations provided they don't contravene the Constitution, the laws and administrative regulations.Finally, the people's congresses of national autonomous areas may enact autonomy regulations and specific regulations. Under the Constitution there are also many rules governing the law-making procedures of all these bodies.

III. Hierarchy of Laws

The 1982 Constitution established a hierarchical legal order consisting of norms at different levels. The Constitution provides that laws should not conflict with the Constitution, administrative regulations should not conflict with the Constitution and the laws, and local regulations should not conflict with the Constitution, the laws, and administrative regulations. The Constitution has also established a machinery for invalidating norms at lower levels which are inconsistent with norms at higher levels.

IV. International Law

There is no provision in the Constitution on whether international law is a source of PRC law. However, there are express provisions in the General Principles of Civil Laws, the Law of Civil Procedure and the Law of Administrative Litigation that relevant treaty provisions shall prevail over inconsistent rules of Chinese civil law, civil procedure or administrative litigation in foreign-related cases. Scholars also point out that according to both the prevailing theory of international law in mainland China and recent legislative practice, international law is automatically implemented as part of PRC law, and where there is a conflict between a provision of domestic law and a provision of a treaty binding on the PRC (other than a provision in respect of which the PRC has made a reservation), the treaty provision prevails.

Judicial organs

In the PRC, the term 'judicial organs' usually mean collectively the people's courts, the peoples' procuratorates, the public security and state security organs, and the organ of judicial administration. The term 'judicial system' can however be more widely interpreted to refer not only to the investigative system (which consists mainly of the public security organs), the procuratorial system, the adjudicative system and the system of judicial administration, but also lawyers, notaries, the mediation and arbitration systems, and the reform through labour and education through labour systems.

I. The People's Courts and the People's Procuratorates

The people's courts of the People's Republic of China are the adjudicative organs of the state. According to the Constitution, the courts of the People's Republic of China are the Supreme People's Court, the people's courts at various local levels, military courts and other special people's courts. Except in special circumstances as specified by law, all cases in the people's courts are heard in public. The accused has the right to defence. The people's procuratorates of the People's Republic of China are state organs for legal supervision. According to the Constitution, the People's Republic of China establishes the Supreme People's Procuratorate and the people's procuratorates at various local levels, military procuratorates and other special people's procuratorates. The people's courts and the people's procuratorates exercise procuratorial power independently, in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organisation or individual.

II. Constitutional relationship between the judicial organs

The organs of public security and judicial administration are part of the structure of organs of state administration under the State Council. However, instead of recognising the separation of powers, the basic constitutional theory for the relationship between the judicial organs is that the people's courts, the people's procuratorates and the public security organs shall, in handling criminal cases, divide their functions, each taking responsibility for its own work, and that they shall co-ordinate their efforts and supervise each other to ensure the correct and effective enforcement of the law.

Alternative Dispute Resolution: People's Mediation and Arbitration

I. Mediation

The system of mediation of disputes by people's mediation committees is an important feature of the Chinese legal system. Members of mediation committees are citizens elected by the masses for a three-year term. Mediation is not intended to be coercive; a party has the right not to accept mediation but to turn to the court for remedies. The people' s court can decide a dispute under such circumstances.

II. Arbitration

Up until 1994 there were two separate systems of arbitration in China: one for domestic economic cases and the other for foreign-related cases. After the Arbitration Act of the PRC was promulgated in August 1994, fundamental changes were made to domestic arbitration as well as international arbitration. A new system was established, including almost all the major and basic principles of modern arbitration, such as arbitration agreements, separate and final awards, compelling arbitration, the combination of arbitration and conciliation and the greatest degree of court assistance with the least interference. The purview of this Act, however, is limited, as the Act is not applicable to those arbitration cases relating to labour disputes or those arising from agricultural contractor's contracts. As a result, for a comprehensive and overall impression, the Act must be jointly read with the Code of Civil Procedure as well as the Supreme People's Court's official adjudicative explanation. The principal institutions providing international arbitration services within the PRC are the China International Economic and Trade Arbitration Commission and the China Maritime Arbitration Commission, both established under the China Council of the Promotion of International Trade. The history of these arbitration bodies dates back to the 1950s. In 1988, a new set of arbitration rules was adopted by each of the two bodies, and a new charter was introduced for each of them in 1995 and 1998.

Legal Professions and Legal Education

I. Legal Professions

The legal professions in the PRC consist mainly of lawyers and public notaries.After the establishment of the PRC in 1949, the legal professions were developed to complement the Soviet-style socialist legal system put in place during the mid-1950s. Both professions were abolished during the Cultural Revolution and subsequently restored and reconstructed in 1979 in a newly independent and open form. Since 1979, China's legal service institutions have been gradually amplified and the number of practitioners has been constantly enlarged. Regulations on legal services in China have also been gradually introduced and improved. In May 1996, the 19th Session of the Standing Committee of the National People's Congress adopted the Lawyer's Law of the People's Republic of China. At the end of 1996, the number of law firms in China was 8,265 with practising lawyers totalling nearly 102,000; the number of notary offices was 3,167 with approximately 17,000 practising public notaries .

II. Legal Education

There are a number of different types of institutions providing legal education in China, each supervised by different government entities. The law departments in universities are generally under the jurisdiction of the State Education Commission (formerly the Ministry of Education). The politics and law institutes are under the Ministry of Justice. The Ministry of Justice also operates the Central School for Politics and Law Management Cadres, the Central School for Labour Reform Management Cadres, and schools for the training of judicial cadres below university level. In addition, there are university law departments and politics and law schools managed by the provincial authorities. Apart from regular law courses for full-time students, various institutions also offer legal education through evening courses, correspondence courses and television courses. The public security system also has schools for training police officers, and the court and procuratorate systems have each developed their own in-service training courses for staff.

As China opens its door to the world, its legal system has begun to take account of the international order. Legal exchange and legal transplant have become popular words in the study of law and the Chinese legal system is now in rapid growth after the coming into force of the socialist market economy. Today, the establishment of 'rule by law' is a committed target for the PRC.

Source: Enstar

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