Law of the People's Republic of China

China's legal system is largely a civil law system, although found its root in Great Qing Code and various historical system, largely reflecting the influence of continental European legal systems, especially the German civil law system in the 19th and early 20th centuries. Hong Kong and Macau, the two special administrative regions, although required to observe the constitution and the basic laws and the power of the National People's Congress, are able to largely maintain their legal systems from colonial times.


Since the formation of the People's Republic of China in 1949, the country does not have judicial independence or judicial review as the courts do not have authority beyond what is granted to them by the National People's Congress under a system of unified power. The Chinese Communist Party (CCP)'s Central Political and Legal Affairs Commission maintains effective control over the courts and their personnel.^[1]


During the Maoist period (1949–1978), the government had a hostile attitude towards a formalized legal system, because Mao and the CCP "saw the law as creating constraints upon their power." The legal system was attacked as a counter-revolutionary institution, and the concept of law itself was not accepted. Courts were closed, law schools were shut down and lawyers were forced to change professions or be sent to the countryside.^[2]


There was an attempt in the mid-1950s to import a socialist legal system based on that of the Soviet Union. But from the start of the Anti-Rightist Campaign in 1957–1959 to the end of the Cultural Revolution around 1976, the PRC lacked most of the features of what could be described as a formal legal system.


This policy was changed in 1979, and Deng Xiaoping and the CCP put into place an "open door" policy, which took on a utilitarian policy to the reconstruction of the social structure and legal system where the law has been used as useful tool to support economic growth. Proposals to create a system of law separate from the CCP were abandoned after the 1989 Tiananmen Square protests and massacre.^[3] Under the Xi Jinping Administration, the legal system has become further subordinated to the CCP.^[4]

Sources of law[edit]

The highest and ultimate source of legal norms in the PRC is nominally the Constitution of the People's Republic of China. It establishes the framework and principles of government, and lists the fundamental rights and duties of Chinese citizens. In practice, however, although these "fundamental rights" include "freedom of speech, of the press, of assembly, of association, of procession and of demonstration" the enforcement of these rights and other elements of the Constitution are subject to the discretion of the CCP's leadership. According to China analyst John Dotson, "[w]hile CCP policy documents are always more important than formal PRC law, the Party-state does use formal laws passed by the National People’s Congress to codify and emphasize Party policies."^[10]


Unlike some civil law jurisdictions such as Germany, China does not systematically lay down general principles in its constitution which all administrative regulations and rules must follow. The principles of legislation and the validity and priority of law, rule and administrative regulations are instead listed in the Legislation Law, 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.


Signed international treaties are in practice automatically incorporated into PRC law, and they are superior to the relevant stipulations of PRC laws. However, the PRC reserves the right to make reservations regarding provisions of a treaty.


Unlike common law jurisdictions, there is no strict precedential concept for case law^[9]: 119 and no principle of stare decisis. In addition, there is no case or controversy requirement that would require the Supreme People's Court to limit its decisions to actual cases, and the SPC does issue general interpretations of the law. In practice, lower people's court judges attempt to follow the interpretations of the laws decided by the Supreme People's Court. In addition, unlike common law jurisdictions, higher courts have the power of supervision and guidance, which means that on their own initiative they can reopen a case that has been decided at a lower level.


Courts in the PRC do not have a general power of judicial review which enables them to strike down legislation. However under the Administrative Procedure Law of the People's Republic of China, they do have authority to invalidate specific acts of the government. In cases where there is a conflict of laws, the process to resolve this conflict is outlined in the Legislation Law of the People's Republic of China, in which an interpretation is requested by the legislative body that is responsible for the law. This process has been criticized both by Western and Chinese legal scholars for being unwieldy and for not allowing for judicial independence and separation of powers. At the same time, the counterargument has been made that resolving legal conflicts is primarily a legislative activity and not a judicial one.


Finally, courts outside of the special autonomous regions, including the Supreme People's Court, do not have jurisdiction over the Hong Kong and Macau SAR's; although, the Standing Committee of the National People's Congress does have and has used its authority to interpret the Basic Law of Hong Kong.