The Laws of China
The People's Republic of China continues to be the most successful and prominent version of the country to date, making an understanding of its legal system important. Not only does doing so explain much about modern China and the way it presents itself on the global stage, but learning more about its laws helps the rest of the world anticipate China's future actions. While many myths and misunderstandings regarding Chinese law continue in the United States and elsewhere, much of the criticism aimed at it are based on truth.
Other People Are Reading
-
History
-
The term "China," known in standard Chinese as "Zhongguo" or "Zhonghua," has referred to several governments and countries over a period of centuries. Each one has had its own legal system. It is also true that the country has built upon the laws of each, with legacy playing a major role.
Until the late 19th century, China followed dynastic imperial law. Several dynasties controlled all China, actively promoting nation-building. These include the first unified dynasty, Qin, and subsequent governments under the Han, Tang, Ming and Qing. All these incorporated tribal and Confucian principles.
By the late 19th century, the incumbent Qing government moved toward Napoleonic-Continental legal tenets to keep up with Western powers and nearby Japan, which was modernizing at the time. By 1911, the Qing era ended and the first Republic of China was created, based on a European-Continental model of law, likely due to close cooperation with Germany in those years.
In 1949, the civil war between the republic under the Nationalist government and the rebel Communists concluded, with the Communists taking over and all previous legal systems officially discarded.
Legal System Since 1949
-
When the People's Republic of China formed officially Oct. 1, 1949, it was designed as a Soviet state, similar to its then-close friend, the USSR. The legal system was meant to be Communist, with almost no distinction between the executive, legislative and judicial branches. However, strong influence from Europe persisted, as in most other cases, wholesale replacement of legal traditions is easier planned than implemented.
Currently, mainland China can be best described as subscribing to the civil law school, with existing strong influence from Continental Europe felt throughout its legislation. Confucian ideas, although not officially practiced, can still be noticed in modern Chinese law and administration, with a great emphasis on standardized performance and so-called social harmony. Local mediation as opposed to legal proceedings among private individuals is also common and a holdover from imperial times.
-
Constitution
-
The current constitution, the country's first since 1949, dates back to 1982. This is the primary document governing the country and sets the stage for the entire legal system. It was last amended in 2004, adding clearer definitions on the protection of human rights and private property, major achievements for an officially communist country.
This constitution reflects many of the sentiments found in the U.S constitution and the founding documents of other countries, stating that citizens have the right to freedom of expression, voting, safety, protection from harassment and so on. However, this constitution also makes it clear the ultimate power lies with the Chinese Communist Party (CCP), in effect making the state and the party inseparable. The constitution also provides strict state security clauses that overrule every other guarantee, meaning the state can easily ignore rights promised in the document in the name of national interest.
Judicial Branch
-
The judiciary is completely subject to the National People's Congress, the premier legislative body, which, in turn, is an instrument of the CCP administration. The highest court is the Supreme People's Court, followed by Higher, Intermediate and Basic People's Courts. Special courts exist for the military, merchant marine, forest service and railway network. All these tend to serve the executive and legislative branches rather than supervise and challenge them.
Appeals are not common, and verdicts are more final than in the United States. Unlike common law jurisdictions, such as the United States, Canada and the United Kingdom, precedent does not play as a big a role in civil law, something that is thoroughly felt in China, as the decisions of courts are regarded as autonomous and standing on their own, not on decisions from previous cases.
Criminal and Administrative Law
-
China's criminal code dates to July 1, 1979, when it was first promulgated by the National People's Congress to assure a more organized law enforcement method. The guiding principles behind this criminal code state its purpose as punishing crime and protecting the people. It promises that all are equal before the law. However, it also defines criminal activity as anything that endangers the state and its property, putting protection of the state ahead of individuals.
Administrative law refers to legal action involving public officials and government bodies, and somewhat reflects what is known as civil legal action in the United States. Individuals suing one another may fall under this classification if the case involves the government in some way.
Capital Punishment
-
Mainland China practices the death penalty, something the country often receives criticism for. It is one of the leading nations in terms of numbers of persons executed yearly. The death penalty is reserved for what the criminal code defines as the most heinous of crimes, and all death sentences must be either handed out or approved by the Supreme People's Court.
Capital punishment has become a major tool in the government's campaign to combat corruption among public officials, with even moderate offenses leading to execution in many cases. Typically, there is no concept of "death row," as almost all sentences are carried out immediately, or at most after a two-year deferment, as stated in the criminal code.
Exceptions
-
The legal system of the People's Republic of China does not extend to every territory belonging to the country. Even though both Hong Kong and Macau "returned" to China in 1997 and 1999, respectively, the two exist as special administrative regions. This means they have their own, largely autonomous legal systems, including courts, immigration and law enforcement. In other words, mainland law does not apply to Hong Kong, which practices British-style common law, and Macau, which maintains a Portuguese civil law code.
-
References
Resources
- Photo Credit National People's Congress photo by Xinhua News Agency.
