6 x 10.5 long title - azim premji...

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Contents

List of contributors ix

Introduction 1

1 China: Legal reform in an emerging socialist market economy 24Jiangyu Wang

2 Hong Kong: Maintaining a common law legal system in anon-Western culture 62Benny Y T Tai

3 Taiwan: External influences mixed with traditional elements to formits unique legal system 91Chang-fa Lo

4 Japan: The importance and evolution of legal institutions at the turnof the century 120Kent Anderson and Trevor Ryan

5 Korea: Bridging the gap between Korean substance andWestern form 151Youngjoon Kwon

6 Vietnam: The past 25 years, the present and the future 185Dang Xuan Hop

7 Malaysia: The undermining of its fundamental institutions and theprospects for reform 212Tsun Hang Tey

8 Indonesia: The challenges of legal diversity and law reform 262Gary F Bell

9 Brunei Darussalam: Ideology and law in a Malay sultanate 299E Ann Black

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viii CONTENTS

10 Singapore: A statist legal laboratory 330Kevin Y L Tan

11 The Philippines: Native culture, transplanted institutions andwomen’s rights 372Elizabeth Aguiling-Pangalangan

Index 400

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1ChinaLegal reform in an emerging socialistmarket economyJiang Yu Wang

1 Introduction

The People’s Republic of China (hereinafter China, or PRC)1 is the current nameof the Chinese nation which has lasted for several thousand years as a country andcivilisation. China is also the world’s most populous country, with a populationestimated at 1.34 billion in 2009. Although officially there are 56 ethnic groups inChina, Han Chinese forms about 92 per cent of the population. It is also one of thelargest countries in land size, in which there are tremendous disparities amongregions in economic development, culture, dialects and traditions. Although thenumbers of believers of the religions Buddhism, Christianity, Islam and Taoismin China are among the world’s largest, they constitute nevertheless a very smallportion of the Chinese population. In fact, there has never been a dominantreligion that was able to convert the majority of the Chinese people.

After several decades of rapid economic growth, China is now the world’ssecond largest economy, simultaneously the largest exporter and second largestimporter in world trade. It is also a self-proclaimed socialist state governed byone political party, the Communist Party of China (CPC or Party), which tookover power in 1949 after defeating the Nationalist Party in a civil war.2 Chinesesociety has undergone tremendous change since 1949, including the socialisttransformation of the economy in the 1950s, the Cultural Revolution in the1960s and 1970s, the Tiananmen Square event in 1989, the abandonment of the

1 At various points in this chapter ‘China’ is also a reference to the Chinese nation in the pre-PRC period.2 The Nationalist Party (or Kuomintang) was the ruling party for the Republic of China (ROC). It thencarried the ROC Government to Taiwan, of which Republic of China or ROC remains the official name. SeeChapter 3, section 3.1.

24

lawwjy

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in Ann Black & Gary Bell (eds.), Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations (Cambridge: Cambridge University Press).


CHINA 25

planned economy in favour of capitalism, the market economy and privatisationduring the reform era of 1979 to the present, accession to the World TradeOrganization (WTO) in 2001, and the Beijing Olympics Games in 2008. Theonly thing that has not changed is the CCP’s tight control of political power. Inthis sense, China is a de facto single-party state, although there are eight otherregistered political parties.

The Chinese Government has vowed to build ‘a legal system with Chinesecharacteristics’ by 2010,3 based on ‘the rule of law’, which as a political con-cept has been embraced by the Party-state only recently.4 What such a legalsystem means is a curious question, the answer to which depends on how onedefines ‘legal system’ and ‘rule of law’, as well as how one understands the pecu-liarity of the evolving Chinese legal culture in an increasingly globalised legalworld.

As Peerenboom points out, ‘[n]owdays, it is virtually impossible to open anyChinese newspaper without seeing reference to rule of law.’5 Since socialist ruleof law became an official policy formulation in 1996, support for the rule oflaw has been relied upon by generations of Chinese leaders to gain politicallegitimacy. Thus, a white paper issued in 2008 by the State Council – China’sCentral Government – claims:

The rule of law signifies that a political civilization has developed to a certain historicstage. As the crystallization of human wisdom, it is desired and pursued by people of allcountries . . . The Chinese people . . . know well the significance and value of the ruleof law, and thus cherish the fruits they have achieved in building China into a countryunder the rule of law.6

At its most basic, ‘rule of law refers to a system in which law is able to imposemeaningful restraints on the state and individual members of the ruling elite, ascaptured in the . . . notions of a government of laws, the supremacy of the law, andequality of all before the law.’7 In the contemporary Chinese context, socialist ruleof law is embedded in a socialist market economy (in which public ownershipplays a leading role in the markets); a non-democratic system of governancein which the CPC monopolises political power; and a rights protection regimewhich puts social stability above individual rights, and subsistence above civiland political rights.8 In the Chinese Government’s own rhetoric:

3 B Wu, Work Report of National People’s Congress Standing Committee (delivered at the Second Ses-sion of the Eleventh National People’s Congress, 9 March 2009) The National People’s Congress of thePeople’s Congress of the People’s Republic of China <http://www.npc.gov.cn/englishnpc/Speeches/2009-03/16/content_1493447.htm>.4 State Council Information Office (SCIO), China’s Efforts and Achievements in Promoting the Rule ofLaw (28 February 2008) Information Office of the State Council of the People’s Republic of China<http://www.china.org.cn/government/whitepaper/node_7041733.htm>. The concept of ‘rule of law’ wasincorporated into the PRC Constitution only in 1999.5 R Peerenboom, China’s Long March Toward Rule of Law, Cambridge University Press, Cambridge,2002, p. 1.6 SCIO, op. cit.7 R Peerenboom, op. cit., p. 2.8 ibid., p. 3.


26 LAW AND LEGAL INSTITUTIONS OF ASIA

The Communist Party of China (CPC) has led the Chinese people in successfully openingup the road of socialism with Chinese characteristics. Along this road, China, in linewith the objective requirements arising in the course of continuous economic, political,cultural and social development, has upheld the organic unity of the CPC’s leadership,the position of the people as masters of the country and law-based governance, stuck tothe principle of people first, advocated the spirit of the rule of law, fostered the idea ofdemocracy and rule of law, freedom and equality, fairness and justice, developed andimproved the socialist legal system with Chinese characteristics, promoted the exerciseof administrative functions in accordance with the law in all respects, deepened thereform of the judicial system, perfected the mechanism of restraint of and supervisionover the use of power, guaranteed the citizens’ lawful rights and interests, maintainedsocial harmony and stability, and continuously promoted institutionalization of allwork.9

This language describes both the process and the end objectives of the construc-tion of rule of law by the political elites in China. Significantly, it reminds peopleof the notion of the rule by law rather than rule of law. Under the rule by lawformula,

[T]he government should rule by known laws rather than by mere fiat or personalrule. Rules are here seen as a mere rational and perhaps more efficient means ofguiding or steering the society. Nevertheless . . . there is less interest in holding seniorpolitical leaders accountable; in fact, in some places they are effectively exempt fromthe law, unless there is a purge or minor officials are caught in an anti-corruptioncampaign.10

But even rule by law is a matter of degree. Noting the official understanding of therule of law in Singapore, Li-ann Thio remarks, ‘the rule of law as understood bySingapore’s leaders is not the version based upon the liberal democratic model,but is driven by the prioritisation of a statist goal like stability and economicgrowth and directed by the authoritarian hand of an efficient and relativelyincorrupt government. It is more accurately characterized as the rule of ‘rules’ orthe rule by law.’11 China is yet to achieve such a strong degree of legalism given,among others, the differences in the levels of economic development, control ofcorruption, and sophistication of the bureaucracy. As Cohen and Lange succinctlyobserve, the ‘Chinese legal system today is a classic example of a glass that ishalf empty or half full, depending on how you look (at) it.’12 Despite all theproblems in China’s legal reconstruction, an optimistic view suggests that Chinais still steadfastly building a legal system that meets the most basic elements ofrule of law in the sense that ‘China has backed up its (rule of law rhetoric) withactions’.13

9 SCIO, op. cit.10 D Clark, ‘The Many Meanings of the Rule of Law’, in K Jayasuriya (ed), Law, Capitalism and Power in Asia,Routledge, London and New York, 1999, p. 36.11 L Thio, ‘Lex Rex or Rex Lex? Competing Conceptions of the Rule of Law in Singapore’, UCLA Pacific BasinLaw Journal, vol. 20, no. 1, 2002–03, p. 75.12 J A Cohen and J E Lange, ‘The Chinese Legal System: A Primer for Investors’, New York Law School Journalof International and Comparative Law, vol. 17, no. 2 and 3, 1997, p. 345.13 R Peerenboom, op. cit., p. 6.


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2 Historical context, including legal traditions

The evolution of the modern Chinese legal system has been subject to the infusionof three streams of influences: traditional Chinese legal thought, socialist ideol-ogy and the Westernisation of Chinese law. Since China underwent fundamentalsocial changes during the period of the late Qing Dynasty, these three influenceshave together shaped the direction of the Chinese legal system, although it isdifficult to quantify the weight of each influence in shaping the legal system.

2.1 Chinese legal traditions

It is said that the influence of traditional legal thought has been fading sinceChina underwent social, political, and economic changes at an unprecedentedlevel during the time of the late Qing Dynasty.14 This assertion might soundconvincing as seen from the surface of Chinese society, but it is also deceiv-ing in the sense that it fails to notice that ‘the role of culture and tradition inshaping the law may be muted, implicit and even unconscious’.15 In the Chinesecontext, some understanding of the legal traditions is necessary, not only becausethese constitute the historical context of the contemporary legal system, but alsobecause many elements of these traditions have genuinely persisted into today’sChinese society.

Contrary to the popular misconception that there was no law in ancient, orimperial, China, ‘law in China has a long history and rich resources’,16 evidencedby a great number of legal documents including the famous Tang Code (652 CE),Ming Code (1397 CE) and Qing Code (1646 CE). The earliest published law inChina could be traced to the Xingshu, literally the ‘Book of Punishment’, whichwas issued at least before 536 BCE.17 Ancient law codes share one common fea-ture: they are all comprehensive codes combining penal, civil and administrativerules in one statute. One would certainly question the nature of the imperialdocuments as ‘law’ from a rights perspective because, in traditional law, ‘[n]oinstitution existed that could apply law against the state, and original jurisdictionover cases involving individuals was with the local magistrate, an official whoseresponsibilities covered all aspects of government (and not simply legal matters)within his territorial jurisdiction.’18

Philosophically, the making and application of law in imperial China wasinfluenced by several schools of legal theories, notably Confucianism and legal-ism. The Confucian school emphasises lizhi, or a society governed by li, which

14 See, for example, J Chen, Chinese Law: Context and Transformation, Martinus Nihhoff Publishers, Leidenand Boston, 2008, p. 19 (stating ‘traditional legal cultures cannot explain the structure and contents ofcontemporary Chinese laws’).15 ibid., p. 5.16 ibid., p. 9.17 ibid.18 D C Clarke, ‘The Chinese Legal System’ (4 July 2005)<http://docs.law.gwu.edu/facweb/dclarke/public/ChineseLegalSystem.html>.



could be literally translated as morality, virtue, rites or rituals, or propriety (inconduct or behaviour), or the combination of all of these. The lofty goal of Con-fucianism is to achieve a harmonious social order by prescribing the rules ofbehaviour which vary in accordance with a person’s status as defined in the vari-ous forms of social relationships.19 Confucius viewed the society as the mediumthrough which one becomes ren (humane), and ultimately a junzi (superiorman). Compulsory law (focusing on penal punishment) may induce compliancein the external behaviour of individuals, but is eventually powerless in trans-ferring the inner character of a person to make him a humane person of goodcharacter. Education is inevitably more useful in this regard. In one of his mostcited passages Confucius said:

Lead the people with government regulations and put them in place with penal law,and they will avoid punishments but will be without shame. Lead them with virtue andorganize them through the li, and people will have a sense of shame and moreover willorder themselves harmoniously according to the proper rules of conduct.20

Confucianism holds that an ideal system of governance is one based on virtueand rule of good people. The ruler should be a sage who takes benevolenceand social rightness as the basic root of government. The ruler should prac-tice ‘inner sagehood and outward kingliness’ (neisheng waiwang), which is theparadigm essential to the Confucian approach to personal, social and practicallife.

What about the role of law in Confucianism’s political theory? It is importantto note that the Confucian school never advocated abandoning laws. Laws cannotreplace the dominating role of li, but could complement the rule of li to protectthe minimum interests of members of society. Punishments are used to dealwith xiaoren (bad individuals) who threaten others and social stability and whorefuse moral education. However, the ultimate goal is to establish a society inwhich the use of compulsory law can be avoided as much as possible. WhenConfucius was the chief judicial officer for the Lu Kingdom he said: ‘In hearinglitigation I am much the same as any other judge. If you insist on a difference,it is perhaps that I try to get the parties not to resort to litigation.’21 The mosteffective way for this to be achieved is to encourage people’s moral self-cultivationand self-containment, namely moral internalism. Under this influence, legalproceedings in imperial China attached great importance to self-motivated andself-initiated submission to the authorities, because confession represented aperson’s willingness to return to good virtue. Further, the primary goal of thelegal system was to achieve substantive justice, while ‘the formal character of theprocess and the emphasis on the predetermined procedures for resolving conflicthave often been seen as obstacles to a more personalized and creative approachto interpersonal conflict.’22

19 T Ch’u, Law and Society in Traditional China, Mouton & Co, Paris, 1961, pp. 230–1.20 Analects, II:3.21 Daxue, IV.22 R Peerenboom, op. cit., p. 30.


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An equally influential traditional legal theory is legalism, also called legalrealism. As adversaries to the Confucian school, the legalists considered differ-ences in social status irrelevant to the application of law. Legalists ‘were mainlyinterested in maintaining legal and political order, and they asserted that the gov-erning of a state depended primarily upon the rewards which encourage goodbehavior and the punishment which discouraged bad behavior.’23 To legalists,a published, uniform law was essential for governing a state, and law should beimpartially applied except against the highest ruler. Lord Shang Yang, one of theearliest legalists and once the Prime Minister of the Qin Kingdom (390–338 BCE),said: ‘Law is the authoritative force of the people, and the key of governing . . . awise ruler must signify the rule by law, so to speak, and act according to the lawso that the country would expand, the army would be strong, and the ruler wouldbe venerated. Rule by law is fundamental to governing.’24 In applying law, legal-ists advocated very cruel punishment even for minor crimes. Lord Shang Yangonce said, ‘in the application of punishments, light offences should be regardedas serious; if light offences do not occur, serious ones have no chance of coming.This is said to be “ruling the people while in a state of law and order”’.25

Legalism was officially adopted in the Qin Kingdom which later became theQin Empire (221–207 BCE), the first dynasty to unite China. In the Han Dynasty(206 BCE–220 CE), Emperor Wu (140–87 BCE) elevated Confucianism to thelevel of state ideology, resulting eventually in the so-called Confucianisation oflaw, meaning ‘the incorporation of the sprit, and sometimes the actual practice,of Confucian teaching into legal form.’26

The imperial legal traditions collapsed with the end of the Qing Dynasty andthe emergence of the Republic of China (ROC). After decades of fundamentalsocial changes, including revolutions and Westernisation, ‘traditional legal cul-tures cannot explain the structure and content of contemporary Chinese laws.’27

However, although not officially recognised, the impact of China’s imperial legaltraditions on the country’s legal system today is too obvious to be denied. Forexample, in line with the instrumental view of law in the legal traditions, con-temporary Chinese law still treats law as a political tool, an administrative tool, asupplementary or secondary tool, as well as a tool for social control.28 There hasnever been the notion of ‘higher law’ in mainstream legal traditions. To a largeextent, substantive justice is still the primary goal of the Chinese legal systemtoday, and procedural justice is despised if conflicting with substantive justice.Above all, the Confucian practice of promoting a relationships-based societywhich differentiates people according to their political-social status inevitablypromotes nepotism and corruption.

23 T Ch’u, op. cit., p. 241.24 Shang Jun Shu [The Book of Lord Shang], III:14, quoted in X Ren, Tradition of the Law and Law of theTradition: Law, State and Social Control in China, Green Wood Press, Westport, 1997, p. 20.25 Quoted in T Ch’u, op. cit., p. 266.26 J Chen, op. cit., p. 17.27 ibid., p. 19.28 ibid., pp. 20–3.



2.2 Communist and socialist ideology and practice

In 1949, the PRC was established, replacing the Nationalist Government asChina’s national government. The CPC replaced the Kuomintang (or NationalistParty) as China’s ruling party, except for Hong Kong, Macau and Taiwan. Withthe new Government adopting communism as the state ideology and socialism asthe form of its political system, the contemporary Chinese legal system is heavilyinfluenced by the country’s socialist experience. To some extent, the legal systemtoday continues to carry on at least some part of the communist ideology andsocialist political-legal practice. Peerenboom nicely summarises the role of lawin socialist China:

Classical socialist theory takes a dim view of law. Bourgeois law is nothing morethan a tool used by the ruling class to protect its privileged positions. In the idealcommunist society, the state will wither away and law will not be needed. In theinterim, law is to serve political ends. In particular, law is to be used by the proletariat asa weapon in class struggles against the enemy in order to realize the people’s democraticdictatorship.29

In the post-1949 period, the initial development of legal theory featured twomovements, namely critique of the Nationalist, bourgeois, legal theory, andwholesale adoption of Soviet legal theory.30 One of the first decrees issued bythe new government was to abolish the Six Codes which represented the lawsand the legal system of the former Nationalist Government, on the ground that‘all Kuomintang laws are nothing but instruments designed to protect the reac-tionary rule of the landlords, the compradors, the bureaucrats, and bourgeoisie,and weapons to suppress and coerce the vast masses of the people’.31 The abo-lition was followed by a political campaign to criticise the ‘old theory’ of theNationalists.32

Meanwhile, systematic efforts were made to import on a large scale legalinstitutions and legal thought from the Soviet Union. For example, the 1954Constitution, the first formal Constitution of the PRC, included a bill of rights,and established a system of people’s congresses and procuratorates modelledafter their Soviet counterparts.33 During the 1950s ambitious legislative workdesigned to draft basic civil, criminal and procedural codes also borrowed exten-sively from the Soviet model. A judicial system consisting of four levels of courtswas also established. However, as Yu observes, ‘Chinese leaders took the prag-matic approach of selective adoption, aiming to adapt elements of the Soviet

29 R Peerenboom op. cit., pp. 43–4.30 X Yu, ‘Legal Pragmatism in the People’s Republic of China’, Journal of Chinese Law, vol. 3, no.1, 1989,p. 32.31 For an examination of the CPC documents concerning abolition of the Nationalist legal system and laws,see J Chen, op. cit., pp. 44–5.32 X Yu, op. cit., p. 34.33 A H Y Chen, ‘Legal Thought and Legal Development in the People’s Republic of China 1949–2008’(28 March 2009) Social Science Research Network <http://ssrn.com/abstract=1369782>.


CHINA 31

model to the unique Chinese experience.’34 Certain indigenous pre-1949 legalpractices of the CPC, such as ‘people’s judicial work’ based on CPC policies, wereretained.

Legal construction came to an abrupt end with the Anti-Rightist Move-ment in 1957. The political climate changed. Leaders, including Chairman MaoZedong and Premier Zhou Enlai, opposed legal constraints on the Party-state’sbehaviour.35 Both legal activities and legal scholarship declined increasingly inthe post-1957 period until the inception of the Cultural Revolution (1966–76)when virtually all laws and the entire legal system were terminated.36

In short, during Chairman Mao’s reign, rule by law was briefly experimentedwith several times but on each occasion was quickly rejected by the leadership.When law was used, it served as an instrument for implementing party policiesand class struggles. In addition, there was no separation between law and politicsin a nation featuring a planned economy and a state-controlled society. Moreimportantly, Chairman Mao’s personal character had a significant influence onalmost every aspect of China’s social and political life, including the making andapplication of laws. While this attitude towards law was not rights-based, it istoo simplistic to conclude that it was not ‘useful’ for China. After all, it was duringthe Mao era that China won and maintained its national independence, and alsosubstantially embarked on industrialisation.

2.3 Westernisation of Chinese law

Throughout the past century, the major theme of China’s legal history has beenwesternisation.37 The initial reform to the traditional system started in the lateQing Dynasty period (the late 19th century), half a century after the first mili-tary invasion by Great Britain during the Opium War of 1840.38 After the war,traditional Chinese values and systems were strongly challenged. Demands forreform came from internal and external forces. These included domestic socialunrest which threatened to overthrow the monarchy; intellectuals attempting tomodernise and reform the existing system; the penetration of Western economic,cultural and political ideals; repeated Western military victories over China; andWestern claims for extraterritorial jurisdiction over Chinese territory. It was dur-ing this period that the idea of the rule of law was fashioned into Chinese legalthought for the first time in the country’s history.39

34 X Yu, op. cit. p. 36.35 See A H Y Chen, op. cit., p. 5 (noting Chairman Mao ‘openly advocated the idea that revolutionary violenceand the dictatorship of the proletariat need not be subject to legal restraint.’ Premier Zhou Enlai also raisedthe issue in a speech delivered on 16 September 1958, saying ‘Why should be proletarians be restrained bylaws? . . . We wrote a large number of regulations and rules which then hindered our development’.36 ibid.; see also J Chen, op. cit., p. 50.37 See generally Q He and L Xiuqing, Waiguo Fa Yu Zhongguo Fa – Ershi Shiji Zhongguo Yizhi Waiguo FaFansi [Foreign Law and Chinese Law – A Reflection on the Transplantation of Foreign Law in China in the 20thCentury], China University of Political Science and Law Press, Beijing, 2002.38 J Chen, op. cit., p.23.39 ibid., pp. 36–8.



At the very beginning, the Qing Dynasty’s legal reform was designed to servea twofold purpose, namely, ‘to pave the way for the transition from traditionallaw to modern Western law; and to respond to Western criticisms on the crueltyof certain provisions in traditional Chinese law as reflected in the Great QingCode.’40 As a result, certain traditional elements in Chinese law (such as cruelpunishments) were abolished and a variety of codes, modelled after the civiliansystems of Japan and European countries, were also drafted. With the collapseof the empire, the westernisation of Chinese law was accelerated during the ROCperiod (1912–49) when the Kuomintang (Nationalist) Government promulgatedthe Six Codes (Liu Fa) to cover all major aspects of social life, and established aEuropean-style judicial system. As one commentator observes, in this period Chi-nese law ‘was becoming Western law, in its form, terminologies, and notions.’41

Almost all legislation was borrowed from foreign sources in the belief that ‘theprevailing legal thoughts and legislative trends in the West at that time happenedto match perfectly the Chinese national sentiments.’42

In the PRC period, shortly after Mao’s death, Deng Xiaoping ended the Cul-tural Revolution and launched his reform and ‘open door’ programs, which imple-mented policies such as economic development (in lieu of the political campaignsof the Mao era), opening China to foreign countries, and reconstructing the legalsystem. One of the major principles guiding the new programs was Deng’s policyto learn from the experiences of foreign countries.43 Western-style legislativework commenced in the field of foreign investment and trade and steadfastlyexpanded to social and other economic areas. In 1992 the CPC’s adoption ofthe notion of the ‘socialist market economy’ led to further legal westernisation,making new slogans such as ‘assimilation or harmonisation with internationalpractice’ and ‘doing things in accordance with international practice’ prominentin China’s socio-legal studies.44 Chen argues that since 1992 ‘lawmakers in Chinaare looking for experience and models in Western countries, particularly in thepursuit for “rational” law. In doing so, Chinese law is increasingly becoming‘Weberian’ rather than ‘Marxist.’45

It can be seen that Chinese law has been evolving and now with its mar-ket economy is in the most dramatic period of this evolutionary process. Inthe past century, the evolution was focused on Westernisation, modernisation,marketisation and globalisation. At this stage, the evolution has built a basis

40 ibid., p. 25.41 ibid., p. 30.42 ibid., p. 34.43 Deng Xiaoping, ‘Carry Out the Policy of Opening to the Outside World and Learn Advanced Scienceand Technology from Other Countries’ (10 October 1978), Selected Works of Deng Xiaoping, vol. II (1975–82), available at People’s Daily Online <http://english.peopledaily.com.cn/dengxp/contents2.html>. Dengnoted that ‘China made contributions to the world down through the ages, but for a long time the conditionshave been at a standstill in China and development has been slow. Now it is time for us to learn fromthe advanced countries.’ He criticised the characterisation of learning from foreign experience as ‘blindlyworshipping foreign things’ as a ‘stupid’ argument.44 J Chen, op. cit., p. 70.45 ibid.


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for constructing a ‘thin’ version of the rule of law in China.46 The problem oflegal orientalism or quasi-legal orientalism is that they refuse to recognise thisevolutionary nature and its impact on the Chinese legal system.47

3 Sources of law

3.1 Primacy of legislation in China

As Keller notes, ‘[a] person cannot live in China long without becoming awareof the complex, interwoven web of social rules which governs every aspectof Chinese life.’48 And it is increasingly difficult to characterise China’s evolv-ing legal system as belonging to either the civil law family or common lawfamily.49 It is submitted that, although China has extensively borrowed legalconcepts, principles, terminologies, institutions and procedures from Anglo-American jurisdictions (and most significantly the United States), it remainsa civil jurisdiction, at least insofar as sources of law are concerned. As in coun-tries in the Romano-Germanic civil law family, ‘enacted law or legislation . . . isapparently the primary, almost exclusive, source of law today’50 in China. Caselaw has never gained legitimacy in China, although more and more court deci-sions are published and studied by law students as persuasive legal materi-als. It is also worth noting that, as will be examined below, courts in China,especially the Supreme People’s Court, often act like legislative bodies, mak-ing China distinguishable from other civil law countries at least with respect tolaw-making.51

3.2 Legislative bodies

State organs at different levels are authorised by the Constitution and the Legis-lation Law (2000)52 to enact laws, regulations or other normative documents. Asthis section will show, different legislative bodies have different powers, while

46 J Wang, ‘The Rule of Law in China: A Realistic View of the Jurisprudence, the Impact of the WTO, andthe Prospect for Future Development’, Singapore Journal of Legal Studies, 2004, p. 347.47 ibid., pp. 360–64. Legal orientalism refers to the standard Western view that ‘China is timeless andstatic, that Chinese people lack subjectivity, and that Chinese confuse law and morality’, which ‘are implicitlymeasured against another set of assertions, namely that the West possesses those progressive qualities butdoes not have those confusions’. ibid., p. 361.48 P Keller, ‘Sources of Order in Chinese Law’, American Journal of Comparative Law, vol. 42, no. 4, 1994,p. 711.49 See generally A H Y Chen, ‘Socialist Law, Civil Law, Common Law, and the Classification of ContemporaryChinese Law’ in J M Otto et al (eds), Law-Making in the People’s Republic of China, Kluwer Law International,The Hague, 2000.50 R David and J E C Brierley, Major Legal Systems in the World Today, 3rd ed, Stevens & Sons, London, 1985,p. 102.51 See generally R Peerenboom, ‘Courts as Legislators’, The Rule of Law in China Series: Policy Brief 1, TheFoundation for Law, Justice and Society, Oxford, 2006.52 Zhonghua Renmin Gongheguo Lifafa, adopted on 29 April 2000 by the National People’s Congress.



the enactments they make, generally called ‘laws’ actually have different desig-nations and degrees of binding force. Under the Chinese constitutional rules, thefollowing organs have power to make laws or normal documents:● the National People’s Congress (NPC) and its Standing Committee● the State Council, also known as the Central People’s Government (or

Central Government)● people’s congresses at the provincial level● ministries and commissions under the State Council● executive branches at the provincial level● self-regulatory organisations.As noted by the State Council:

The modern Chinese legal system . . . mainly consists of seven branches of legisla-tion and three levels. The seven branches of legislation are: the Constitution andthe Constitution-related laws; civil and commercial laws; administrative laws; eco-nomic laws; laws on society; criminal law; and litigation and non-litigation procedurallaws. The three levels are: laws; administrative regulations; and local regulations,autonomous regulations and separate regulations. The NPC and its Standing Commit-tee have enacted 229 laws currently in effect, covering all the above seven branches;and have enacted, in each branch, most of the basic laws which are essential forforming the framework of the socialist legal system with Chinese characteristics orare demanded by the national goals of reform, development and stability. As supple-ments, the State Council has enacted nearly 600 administrative regulations currently ineffect; local people’s congresses and their standing committees at various levels haveenacted over 7000 local regulations currently in effect; and the people’s congressesof the ethnic autonomous areas have enacted over 600 autonomous regulations andseparate regulations currently in effect. The departments under the State Council, thepeople’s governments of the provinces, autonomous regions, municipalities directlyunder the central government, and the larger cities have also enacted numerousrules.53

3.3 Xianfa (the Constitution)

The current Constitution of the PRC54 was adopted in 1982, shortly after theend of the Cultural Revolution. It is a successor to three previous Constitutions,namely the 1954 Constitution, the 1975 Constitution and the 1982 Constitu-tion. The Constitution defines itself as the ‘fundamental law of the state’ having‘supreme legal authority’ in China.55 Thus, ‘[t]he people of all ethnic groups,all state organs, the armed forces, all political parties and public organisationsand all enterprises and institutions in the country must take the Constitution astheir basic standard of conduct, and they have the duty to uphold the dignityof the Constitution and ensure its implementation’.56 In practice, most of the

53 SCIO, op. cit.54 Zhonghua Renmin Gongheguo Xianfa, adopted by the National People’s Congress on 4 December 1982(the Constitution).55 Constitution, Preamble.56 ibid.


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laws promulgated have stated, in their first provision, that they were made inaccordance of the PRC Constitution.

3.4 Falu made by NPC and its Standing Committee

Under the Constitution, the NPC is the country’s highest state organ and thesource of power for all other state organs. According to art 7 of the LegislationLaw of the PRC, the NPC and its Standing Committee, being the national leg-islature, ‘exercise the legislative power of the State’. As a matter of legislativeprinciple, only the legislation enacted by the NPC or its Standing Committeemay be designated as falu (laws). Further, only the NPC has the power to makeand amend jiben falu (basic laws), a term which is not clearly defined in China’sconstitutional laws.57 This issue will be discussed in more detail later. In the eco-nomic arena, the Legislation Law stipulates that ‘laws’ must be made to governthe country’s basic civil and economic systems.58

3.5 Xingzheng fagui made by the State Council

The State Council, which is the highest authority in the executive branch, isalso a legislative body. Its law-making authority is immediately below that ofthe NPC and its Standing Committee. Indeed, only the legislative enactments ofthe State Council may be designated as administrative regulations (xingzhengfagui), or simply regulations. Under the Legislation Law, the Central Governmentmay formulate administrative regulations in the following situations: (a) whenit is necessary to enact regulations to implement provisions of law; (b) whenit is necessary to enact regulations to govern matters within the administrativefunctions and powers of the State Council as stipulated in the Constitution; and(c) when the State Council is delegated the law-making power by the NPC orits Standing Committee to enact regulations for matters originally within thenational legislature’s exclusive legislative jurisdiction.59 In fact, from 1983 to1985, the NPC and its Standing Committee delegated their law-making powerthree times to the State Council, for matters mainly relating to economic affairs.60

In reality, the State Council and its departments form, de facto, the most powerfullaw-making body in China.

In terms of designation, enactments of the State Council may be titled tiaoli(regulations), guiding (provisions) or banfa (measure), depending on the scopeof the subject matter. When the State Council exercises the delegated law-makingpowers, its enactment will be called a zanxing (provisional),61 implying that

57 Legislation Law, art 7.58 Legislation Law, art 8.59 Legislation Law, art 56.60 A H Y Chen, An Introduction to the Legal System of the People’s Republic of China, LexisNexis, Hong Kong,2004, p. 104.61 Zanxing may also be translated as ‘interim’ or ‘tentative’.



formal statutes will eventually be made by the NPC or its Standing Committee indue course.62

3.6 Bumen guizhang made by the ministries underthe State Council

The various ministries, commissions and bureaus and the People’s Bank of China(China’s central bank) are allowed to promulgate bumen guizhang (departmentalrules) within the limit of their respective power. The rules, promulgated by eitherone ministry alone or several ministries jointly, should be made only pursuantto and for the purpose of enforcing laws or administrative regulations.63 As amatter of fact, departmental rules, forming the largest group of normative legaldocuments, constitute the most relevant and practical body of law for the dailylife of ordinary citizens and businesses.

A set of departmental rules may have the generic designation of guiding (pro-visions) or banfa (measures). Apart from guizhang, the State Council and its min-istries promulgate from time to time other forms of official documents, includingmingling (orders), jueding (decisions), tongzhi (notices), tongbao (communica-tions), pifu (replies), yijian (opinions) zhiyin and zhidao yijia‘(guidelines), manyof which are used as documents to regulate business organisations.64

3.7 Local enactments

Localities at the provincial level, including provinces, autonomous regions,municipalities directly under the Central Government, and large cities, aregranted law-making power. According to the Legislation Law, two kinds of locallaw may be enacted. The first category is difang fagui (local regulations) made bylocal people’s congresses and their standing committees (the local legislature).They may enact local regulations ‘in light of the specific conditions and actualneeds of their respective administrative areas, provided that such regulations donot contradict the Constitution, the laws and the administrative regulations.’65

In the spirit of local law regulating local affairs, the Legislation Law empowersthe local legislature to enact local regulation on any matters not yet governedby national law or administrative regulations. As Chen notes, this creates ‘roomfor innovation in local regulations which can pave the way for the enactment ofnational laws on particular subjects.’66

A further form of local law is defang guizhang (local rules) made by theexecutive branch at the level of provinces, autonomous regions, municipalities,

62 The scope of matters governed by ‘regulations’ is the widest, ‘measures’ the narrowest, and ‘provisions’ inbetween. See A H Y Chen (2004), op. cit., p. 105.63 Legislation Law, art 71.64 A H Y Chen (2004), op. cit., p. 106–7, noting these documents ‘are authoritative to various degrees, andinsofar as some of them provide for rules of general application, they may also be regarded as a source oflegal norms’.65 Legislation Law, art 63.66 A H Y Chen, (2004) op. cit., p. 109.


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and large cities, for matters concerning the implementation of national laws,administrative regulations or local regulations.67

3.8 Sifa jieshi: case law’s equivalent?

China’s legal system is officially a civil law system, which essentially means thatcourts are to play a passive role. Unlike their counterparts in common juris-dictions, Chinese courts theoretically do not possess the power to ‘make law’.Peerenboom explains that ‘[t]heir role is to apply law to the facts. If the lawsor regulations are unclear, the courts are supposed to seek guidance and clari-fication from the entities that promulgated the laws or regulations.’68 In China,the power of interpreting laws is in the hands of the NPC Standing Committee;however, in addition ‘a rudimentary system has evolved which might be inter-preted as the functional equivalent of case law in other jurisdictions’.69 This refersto the power of the Supreme People’s Court (SPC) to make sifa jieshi (judicialinterpretations). As Peerenboom remarks:

What is distinctive about China’s legal system is that the Supreme People’s Court(SPC) makes law in a much more direct and visible way. Every year the SPC issues avariety of interpretations, regulations, notices, replies, opinions and policy statements(collectively, ‘interpretations’). Most are binding upon the courts; others are highlypersuasive and likely to be followed by the courts. Sometimes they are rather general;other times they are very specific and issued in response to an inquiry from a lowercourt in regard to a particular case pending before the court.70

A 1981 NPC Standing Committee decision first permitted the SPC to promulgatejudicial interpretations.71 The SPC has issued a series of provisions to elaborateon its law interpretation work, the most recent being the 2007 SPC Provisionson Judicial Interpretation Work.72 For judicial interpretations to have bindingforce, they need to be promulgated by the SPC. They may take the forms of jieshi(interpretations), guiding (provisions), pifu (replies) and jueding (decisions).Interpretations deal with the application of law for a law or a type of case orproblem; provisions are used to create norms or opinions relating to adjudicationwork; replies are answers to inquiries from the provincial courts regarding issuesconcerning concrete application of law; and decisions are used to revise or abolishjudicial interpretations.73

But what about decided cases? Do they also play a role in the courts’ adju-dication of disputes? Although, as previously noted, China is still considered a

67 Legislation Law, art 73.68 R Peerenboom (2006), op. cit., p. 2.69 A H Y Chen (2004), p. 118.70 R Peerenboom (2006), op. cit., p. 2.71 Resolution of the National People’s Congress Standing Committee on Strengthening the Work of Interpretationof Law. See A H Y Chen (2004), op. cit., p. 119.72 Zuigao Renmin Fayuan Guanyu Sifa Jieshi Gongzuo de Guiding, promulgated by the SPC on 23 March2007, SPC document number: Fafa (2007) 12 Hao.73 Zuigao Renmin Fayuan Guanyu Sifa Jieshi Gongzuo de Guiding, promulgated by the SPC on 23 March2007, SPC document number: Fafa (2007) 12 Hao, art 6.



civil law jurisdiction, it is a myth to generalise a view which excludes judicialcases as a source of law in civil law system.74 Whilst there is no doubt that inChina judicial cases do not constitute a formal source of law, some court deci-sions ‘do generate legal norms and have persuasive or even binding force inpractice.’75 The most noticed cases are those judgments or judgment summariesselected and published by the SPC in the Gazette of the Supreme People’s Court,which are considered ‘authoritative and an important means through whichthe Supreme People’s Court provides guidance to lower courts with regard totheir adjudicative work.’76 It is, however, worth noting that there is no system-atic case reporting system in China. The SPC has encouraged lower courts topublish judicial decisions and judgments on the internet, but this has not beenmade a compulsory requirement. As a result, courts can decide not to publishsome cases if they concern state secrecy, juvenile delinquency, personal privacy,or any other matter considered by the courts as not suitable for publication.77

Further, the judgment is rendered as a collective opinion of all the judges onthe collegiate panel, in which no individual (concurring or dissenting) voice isallowed.

3.9 Custom

As observed by David and Brierley, ‘[a]ccording to a sociological concept ofthe sources of law, custom plays a preponderant role in all legal systems; andin developing or applying the law, legislators, judges and authors are, as amatter of fact, more or less consciously guided by the opinion and custom of thecommunity.’78 Custom as a source of law is recognised in China’s legal system,especially with respect to civil and commercial disputes.79

3.10 Legal writing

Although not formally recognised as source of law, in certain civil law countries,works of legal scholarship can play an eminent role in civil legal systems. This isbecause legal writings shape legal doctrine which is of fundamental importanceto the formation and application of written laws in civil law countries. Theimportance of legal writing in the civil law tradition is summarised by David andBrierley. The quote also sheds light on China’s approach:

74 See, for example, R David and J E C Brierley, op. cit., p. 133, noting that in countries such as France orGermany ‘cases have been of primary importance in the evolution of some branches of the law’.75 A H Y Chen (2004), op. cit., p. 128.76 ibid., pp. 128–9.77 Zuigao Renmin Fayuan Guanyu Sifa Gongkai de Liuxiang Guiding [Six Provisions of the Supreme People’sCourt on Judicial Transparency], promulgated by the SPC on 8 December 2009, SPC document number: Fafa(2009) 58 Hao. The SPC has established a website, <http://www.chinacourt.org/>, to publish judicial newsand decisions.78 R David and J E C Brierley, op. cit., p. 130.79 H Liang, Minfa Zonglun (Di-er Ban) [General Introduction to Civil Law], 2nd ed, Falu Chubanshe [LawPress China], Beijing, 2004, pp. 24–5.


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One may, of course, define law as only enacted rules. Nevertheless, for the person whotakes a realistic approach and has a more comprehensive – and to our mind, moreexact – view, doctrine is now, as in the past, a very important, living source of law.This is shown by the fact that it creates the legal vocabulary and ideas which legislatorssubsequently use; it is even more evident from the fact that doctrinal writing establishesthe methods by which law will be understood and statutes interpreted. There is, further,the influence that legal scholarship can exercise on the legislators themselves; often thelatter merely give expression and effect to tendencies that have developed doctrinally,or enact laws which have been conceived by legal writers . . . [Legal writing] also playsa role in the application of enacted law.80

Given that there are always different scholarly views about the same issue,scholarly writing is not a formal source of law in China. Yet the role of legalscholars in China should not be underestimated. They were heavily involved inthe legislative process for major laws, including, inter alia, the Company Lawand the Securities Law. To some extent, it is not incorrect to say that the schol-ars were themselves the law-makers, as the drafts made by them were largelyaccepted by the NPC or other legislative bodies. Furthermore, some courts, espe-cially the SPC and some provincial high courts, have developed the practice ofconsulting prominent scholars in their adjudication of legal disputes. One com-mentator hence suggests that this indicates that legal writing may be regardedas indirect source of law (jianjie fayuan) in China.81

3.11 Understanding the complex hierarchical structure oflegal order in China

It is essential to understand the hierarchy of law in China. As demonstratedabove, multiple legislative bodies make numerous laws and regulations, oftenon the same subject matter. Inevitably, there can be conflicts and inconsis-tencies between laws made by these different legislative bodies. For instance,with respect to company incorporation registration, there are provisions in thenational Company Law, a special administration regulation enacted by the StateCouncil, as well as departmental rules released by the State Administration ofIndustry and Commerce. Two interrelated questions therefore arise. First, whichlevel of law has higher legal effects; and second, which law should the courtapply when there are conflicts between different laws?

Under the Constitution and the Legislation Law, the following principlesregarding the legal order hierarchy should be complied with by the law enforce-ment organs:● The Constitution should have the highest legal authority and no other laws,

administrative regulations or local regulations or rules may contradictit.82

80 R David and J E C Brierley, op. cit., p. 147–8.81 H Liang, op. cit., p. 27.82 Legislation Law, art 78.



● The legal effect of laws (made by the NPC and/or its Standing Committee)is higher than that of administrative regulations, local regulations, andrules.83

● The legal effect of administrative regulations is higher than that of localregulations, and rules.84

● The legal effect of local regulations is higher than that of local rules madeby governments of the same and lower levels.85

● The legal effect of the departmental rules made by different central depart-ments is equal between those departments, and the effect of departmentalrules and local rules is equal between the departments and local govern-ments; their application should be confined to their respective limits ofauthority.86

Having identified that departmental rules and local regulations have the samelegal status, the Legislation Law fails to solve a key problem: the conflict ofauthority between the centre and the provinces. As observed by Cohen andLange, “[t]he conflict between central and local authorities will continue tohandicap the development of the Chinese legal system, and to heighten therisks for foreign investors, at least until China evolves and enforces a reasonablyclear and rational allocation of authority between the central and provincialgovernments.’87 Further:

Often investors are caught in the middle, between the more investor-friendly localauthorities and the more macro-oriented central authorities, each offering their own –often sharply divergent – visions of the applicable regulatory framework and the properway to proceed. In addition, the vastness of China and the existence of entrenched localpower bases often makes it difficult for the central government to enforce laws it adoptsfor the benefits of investors.’88

The Legislation Law does not address the status of judicial interpretations in thehierarchy of legal order. In theory, an interpretation should not contradict theoriginal enactment it aims to interpret. In practice, judicial interpretations havegone far beyond that, making the SPC a de facto legislative body, a status notrecognised by the Legislation Law. Given the tight control of the SPC over thelower courts, judicial interpretations, because they provide timely, practical andspecific responses to concrete issues, are more faithfully enforced by courts thanany other laws.

On the courts’ choice of law, an SPC document released in 2004 is illustra-tive. Titled ‘SPC Meeting Minutes on the Application of Law Issues in the Trialof Administrative Cases’,89 it is not itself a judicial interpretation, but would

83 Legislation Law, art 79.84 Legislation Law, art 79.85 Legislation Law, art 80.86 Legislation Law, art 82.87 J A Cohen and J E Lange, op. cit., p. 349.88 ibid.89 Zuigao Renmin Fayuan Guanyu Shenli Xingzheng Anjian Shiyong Falv Guifan Wenti de Zuotanhui Jiyao,promulgated by the SPC on 18 May 2004, SPC document number: Fafa (2004) 96 Hao).


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definitely guide the adjudication practice of courts at all levels. The Minutesstipulate the following principles with regard to courts’ choice of law:● In trying administrative cases, the SPC shall apply laws, administrative

regulations and local regulations, and make reference to rules.● Interpretations of laws, decisions, orders or other official normative docu-

ments issued by the State Council departments and local governments arenot binding upon courts; they will be applied in trial only after the courthas reviewed the legality of those documents under laws or administrativeregulations.

● The court will apply the law of a higher level if there is inconsistencybetween the law of the higher level and that of the lower level.

● In case there is inconsistency between departmental rules and local regu-lations, the court will make choices according to the following principles:(1) departmental rules authorised to implement the laws or administrativeregulations should take priority; (2) departmental rules concerning mat-ters which require national actions or concerning foreign trade or foreigninvestment shall take priority; (3) local regulations concerning purely localmatters shall take priority.

Although as a matter of law, the Minutes concern only court adjudication ofadministrative cases, they provide enlightening points for the trial of civil andcommercial disputes. One has to bear in mind that most official normative doc-uments are administrative in nature. It is also worth noting that the Minutesestablish a formal mechanism of judicial review of legality of laws. According tothe Minutes, although Chinese courts do not have the power to invalidate anywritten laws, regulations or rules, they seem to have a great discretion to choosethe law they wish to apply.

4 Legal institutions

4.1 The Constitution and the structure of the state

As noted, although the PRC Constitution is defined as the fundamental law of thestate, it ‘has concerned itself more with state organisational structure than withthe checks and balances of governmental powers, more with the future directionof the society than the protection of fundamental rights of citizens, and morewith general principles than with detailed rules capable of implementation’.90

Clarke holds that the PRC Constitution is not a Constitution in a meaningfulsense.91 Instead, it should be understood as a kind of ‘National Declaration’.92 Asa counterargument, Wang maintains that the PRC Constitution, despite its many

90 J Chen (2008) op. cit., p. 78.91 D C Clarke, ‘Puzzling Observations in Chinese Law: When is Riddle Just a Mistake?’, in C S Hsu (ed),Understanding China’s Legal System: Essays in Honor of Jerome A Cohen, New York University Press, 2003,p. 121.92 ibid., p. 105.



weaknesses, is still a modern Constitution.93 Specifically, the current Constitutionis a legal instrument to formalise and institutionalise the administration of thestate, and in this sense it has provided a foundation on which all political andlegal institutions are built.94 It may contain many policy statements, but it alsocontains many operational provisions such as how state organs operate as well asmany citizen rights’ provisions, which have to be respected both fully in theory,and at least in part in practice.95

Under the Constitution, a wide range of institutions are involved in making,interpreting and enforcing laws in China. In a system of separation of powers ina liberal democracy, the Parliament (or Congress) makes the law, the executivebranch implements the law, and the judiciary enforces the law by adjudicatingdisputes. There is, however, no such separation of powers in China; there isonly separation of functions. This is true for both the law on paper and theunwritten law in action. For the law on paper, the NPC is the supreme authorityof state power as well as the supreme legislature in China. In theory there areno other separate state agencies which can share this power with the NPC. TheState Council and local governments are the executive bodies, controlling thecivil service at all levels. In reality, state power is monopolised by the CPC,which would not allow any independent political forces to be formed in China tochallenge its rule.

Judicial institutions in China usually refer to both the courts and the procu-ratorates. In a broader sense, the concept of judicial institutions covers also lawenforcement agencies such as the police and judicial administrative agenciesincluding the Ministry of Justice. For the purpose of this chapter, only the courtsand procuratorates are treated as judicial institutions, and only the courts arecalled judiciary.

4.2 Legislatures and the people’s congress system

In China’s constitutional system, the structure of the Chinese state formally con-sists of the head of the state, the people’s congress system, the state administra-tion organ (the Central Government), the state adjudicative organ (the courts oflaw), the state prosecution organ (the procuratorates), the political consultativeorgan and the military organ. Informally, the CCP, the ruling party, is treated asthe most powerful state organ.

On paper, China, a unitary state, has its highest authority and sovereignty heldby the NPC, which represents ‘the people’ of China. Local people’s congresses areestablished at the provincial, county and township levels to exercise state powerat their respective level. Other state organs, including the state administrative,judicial and procuratorial organs which also operate at these same levels, arecreated by, responsible to and supervised by the people’s congresses. In this

93 J Wang, op. cit., pp. 365–7.94 ibid., p. 365.95 ibid., p. 366.


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sense, the people’s congresses are not only law-makers; they are also the sourceof state power in China.

The NPC is composed of about 3000 deputies elected from the provinces,autonomous regions and municipalities directly under the Central Government.It also has deputies from the armed forces. A deputy’s term of office is five years.The NPC’s role as the highest state organ is to supervise the enforcement ofthe nation’s Constitution and amend it when it deems necessary. It elects thePresident and Vice President of the PRC; confirms China’s Prime Minister uponnomination by the President and Vice Premiers and Ministers upon nominationby the Prime Minister; and elects military leaders, the President of the SPC andthe Procurator-General of the Supreme People’s Procuratorate.

The NPC only convenes for a plenary session, usually in March, for abouttwo weeks. When the NPC is not in session, the Standing Committee of theNPC (NPCSC) becomes the highest organ of state power and performs most ofthe NPC’s functions. Defined by the Constitution as the permanent body of theNPC, the NPCSC can interpret (but not amend) the Constitution and superviseits enforcement, as well as confirm ministers and other senior officers of therelevant state organ.

As the highest legislative body, the NPC with its NPCSC exercises the legisla-tive power of the state. The NPC enacts and amends basic laws, such as thoseconcerning basic civil matters, criminal matters, economic institutions and stateorgans, as well as procedural matters. The NPCSC enacts and amends laws otherthan those falling within the legislative jurisdiction of the NPC. The NPCSC hasthe power to supplement and amend laws made by the NPC when the NPC is notin session, with the proviso that the basic principles of the laws concerned arenot contravened.

In practice, it is never clear what the distinction between basic laws and non-basic laws is, basic law being more a term of art than one of science or logic.As noted previously, legislative authority in China is rather dispersed. The StateCouncil, central ministries, local people’s congresses, local governments, theSPC and even some self-governing organisations can all make rules of bindingforce. As Peerenboom observes, ‘[t]he lack of clear lines of legislative authorityhas resulted in quality and consistency problems. Many regulations are poorlydrafted, ill-advised or unworkable in practice. They also regularly conflict withsuperior legislation’.96 Despite the problems in the legislative system, the leg-islatures in China have managed to establish a relatively comprehensive legalframework over the past three decades.

The biggest problem with the NPC is that, as the named ‘supreme state organof power’, it is largely an instrument of the CPC in the authoritarian politicalsystem of China. Although it is common practice in a democratic system thatthe ruling party controls the legislative agenda of the legislature through thevoting mechanism, the NPC is controlled by the CPC. Like any other state agency

96 R Peerenboom (2002), op. cit., p. 241.



in China, the CPC supplies the budget (through the Party-controlled financesystem of the Central Government), appoints senior staff members (throughthe CPC’s personnel system) and determines the mandate and agenda of theNPC and the local people’s congresses. Furthermore, the electoral system ofthe NPC is designed in a way most convenient for CPC control. There is nodirect election of delegates above the county-level. As stated in a work reportof the NPCSC, ‘[delegates] to the people’s congresses above the county levelare elected indirectly by the people’s congresses at the next lower level, whothen form delegation on the basis of their constituencies to attend sessions oftheir people’s congresses.’97 This indirect election though several levels, togetherwith a carefully designed candidate nomination system, ensures that the CPCcontrols who will be elected to the NPC. In other words, the system does notleave any possibility for an opposition party, if any, to win an election withoutCPC endorsement.

A local people’s congress, with its own standing committee, exists at each ofthree local levels, namely the provincial level, the city/county level and townshiplevel. The local people’s congresses are defined as the ‘local organs of statepower’.98 They are in charge of supervising the local implementation of theConstitution, basic laws, and administrative regulations, and promulgating localregulations, as well as electing and removing the heads and deputy heads of thelocal governments and the heads of local courts and procutorates.99

Despite the lack of independence of the people’s congresses, some optimisticobservers believe that the NPC, together with its local counterparts, plays apositive role in the ‘constitutional development in an otherwise authoritarianregime’.100 Dowdle suggests that, over the 1980s and 1990s, ‘the NPC hasgrown from insignificance into a potent constitutional force in China’s politi-cal system, as ‘national political actors in China take the threat of significantdelegates’ dissent very seriously’.101 Specifically, anecdotal evidence has shownthat:

Low NPC approval rates for the work reports of both the judiciary and the procuratorateencouraged these institutions to acknowledge and respond to institutional problemsof incompetence and corruption . . . Low approval rates in both the NPC and regionalpeople’s congresses for [CPC] nominees for public offices caused the [CPC] to reviseits nominations procedures so as to give both national and regional parliaments (andother societal actors) greater input into the [CPC]’s nomination processes . . . The NPCalso has assumed primary authority over China’s legislative development, which hasgiven the NPC a kind of pocket veto over draft bills submitted to it by other politicalactors’.102

97 B Wu, op. cit.98 Constitution, art 96.99 Constitution, arts 95–104.

100 M W Dowdle, ‘Of Parliaments, Pragmatism, and the Dynamics of Constitutional Development: TheCurious Case of China’, New York University Journal of International Law and Politics, vol. 35, no. 1,2002, p. 2.101 ibid, p. 3.102 ibid., pp. 2–3.


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4.3 The executive branch

As noted previously, the executive branches, including the central and localpeople’s governments, are also law-makers. Specifically, the State Council, asthe Central Government, can make administrative regulations which constituteone of the most important sources of law. Local governments could issue localrules; however, these are of insignificant relevance in the Chinese legal systemtoday.

The State Council, under the leadership of the Premier, is both a legislativeand implementing body. It may enact and repeal administrative regulations,and submit proposals to the NPC and the NPCSC. It is also tasked with leadingadministrative agencies at central and local levels to implement laws and poli-cies. Although the people’s congresses, courts and procuratorates are beyondits jurisdiction, the executive branch is in charge of administering the police,lawyers and prisons through, respectively, the Ministry of Public Security andMinistry of Justice, as well as their local departments.

4.4 The judiciary

Courts and judges

As Chen observes, ‘[f]rom the institutional point of view, much progress has beenmade in the development of the Chinese judiciary in the last three decades. Overthe years there has been a steady and significant rise in the number of judges, intheir average levels of education and professional training, and in their number ofcases tried by the courts’.103 Courts in China are divided into four levels: SupremePeople’s Court (SPC), High People’s Court (HPC), Intermediate People’s Court(IPC) and Basic People’s Court (BPC). At the end of 2004, there were in total 3548courts in China.104 The HPC, IPC and BPC are local courts. BPCs are grassroots-level courts at county level (with detached tribunals in townships). BPCs are first-instance courts for criminal, civil and administrative cases. IPCs are establishedin major cities and prefectures within provinces. They are first-instance courts formajor cases and foreign-related cases (both of which cannot be received first bythe BPCs) in their respective jurisdiction, and the court of appeal for judgmentsfrom the BPCs. Likewise, the HPCs, established at the provincial level (and basedin provincial capitals), hear cases of significant influence in their provinces andare courts of appeal for judgments rendered by intermediate courts. There alsoa number of specialised courts established at various levels, such as the railwaytransport courts, forestry courts, maritime courts and military courts.

The SPC is the country’s high court and the court of final appeal. Theoreticallyit has the right to hear a first-instance case, but it virtually never does.105 In

103 A H Y Chen (2009), op. cit., p. 26.104 J Chen (2008) op. cit., p. 150.105 The only occasion when the SPC tried a first-instance case was the trial of the Gang of Four in 1979,which marked the end of the Cultural Revolution.



practice, it, as the court of final appeal, handles a large number of appellatecases.106 But the SPC is more than a court of final appeal; it is also the leaderfor judicial affairs in the judicial system, in addition to being itself a law-makerthrough making judicial interpretations. It not only supervises the trial practicesof all lower courts, but also supervises and guides the judicial work of lowercourts, such as their personnel quota and structural settings. It has the authorityto issue judicial interpretations, which are de facto legislation, treated by lowercourts as probably more important than any other sources of laws.

Under the Organic Law of the People’s Courts (1979; 2006 Rev), a court at eachlevel is organised into several substantive divisions (ting) according to the spe-cialisation of the cases, such as civil, criminal or administrative divisions. The SPChas the following 11 divisions: Case-Filing Division; Criminal Division I; CriminalDivision II; Civil Division I; Civil Division II; Civil Division III; Civil Division IV;Administrative Division; Adjudicative Supervision Division; Enforcement Office;Research Office.107 Another very important institution within a court is the adju-dicative committee comprising senior judges and division heads, which will bediscussed shortly.

The personnel of a court follows a strict hierarchy of administrative ranking,made up of a president, several vice presidents, division heads, deputy divisionheads, (ordinary) judges, assistant judges, and court clerks. The presidents andvice presidents may or may not be chosen from the pool of professional judges, asthese positions are political appointments in many cases. Non-judge candidatesautomatically becomes judges once they assume the presidential position.108

Division heads are usually judges as well.Judges, like civil servants, have an administrative rank based on their seniority

and administrative positions. According to the PRC Law on Judges (1995; 2001Rev), judges are graded into 12 levels, ranging from the Chief Justice (who isalso President of the SPC), Grand Judge of First Rank and Grand Judge of SecondRank to Senior Judges and Judge.109

As a matter of law, the chief figures in a court are responsible to the people’scongress at the corresponding level. The president of a court is elected andalso removed by the local congress. The vice presidents, division heads, deputydivision heads, and judges are nominated by the president and then confirmedby the standing committee of the local congress. A lower court is also responsible

106 In 2008 the SPC received 10 553 cases and rendered judgments for 7725 cases. In the meantime,courts across China received over 10 million cases. See Work Report of the Supreme People’s Court (deliv-ered at the Second Session of the Eleventh National People’s Congress, 10 March 2009), available at<http://lawprofessors.typepad.com/china_law_prof_blog/files/spc_work_report.html>.107 See the SPC website: <http://www.court.gov.cn/>.108 In a recent report, two journalists examined the profile of 30 HPC presidents and found that,before assuming their HPC presidency, 14 of them were purely CPC or government officials, two ofthem were formally law professors, and only 14 of them worked in the judiciary. See X Dong and CXiaoli, ‘Zhongguo Gaoyuan Yuanzhang Yiban Wei Dangzheng Chushen, Duoren Weizai Fayuan Gongzuo’[‘Half of the High Court Presidents were Formally Party or Government Officials, and Many of ThemNever Had Judicial Experience’] (20 July 2009) Sichuan Online/Chengdu Commercial Daily, available at<http://news.xinhuanet.com/local/2009-07/20/content_11736366.htm>.109 Law on Judges, art 18.


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to the higher court, not only in terms of case appeals, but also in relation tojudicial appointments: if the higher court discovers that the appointment of ajudge of a lower court violates the PRC Law on Judges it may suggest the lowercourt withdraw the nomination or ask the people’s congress to withdraw theappointment.110

Judges do not have official tenure in China but in practice may hold theposition for their lifetime. A judge may be dismissed on a variety of grounds, andcertainly for political reasons. However, as Peerenboom observes, ‘the problemsto date have not been that too many judges are being removed for politicalreasons but rather that too few judges are being dismissed for incompetence orcorruption.’111 As is the case in some civil law countries, judges in China are notas respected as they are in many common law jurisdictions. The judicial service isa bureaucratic career in which the judge is a mere civil servant and a functionary.A judge probably will not feel more proud of his or her career than any othergovernmental official in China.

Trial system

Under the Organic Law of the Peoples’ Court and other organisational and proce-dural laws, trials of cases could be undertaken either by a single judge (durenfaguan) or by a collegiate panel (heyiting). Minor criminal cases or simple civilcases can be tried by a judge using summary proceedings. For most cases, a col-legiate panel of three judges or a combination of judges and people’s assessorsmust be formed on a case-by-case basis. First-instance administrative cases andcases at the appellate level must be tried by collegiate panels. One judge on thepanel will serve as the presiding judge (shenpanzhang), and there is a responsiblejudge (chengban faguan) who could also be the presiding judge.

Although China does not have the jury system, invited laypersons, officiallyknown as the ‘people’s assessors’, may participate in the adjudication process.Except for cases tried under summary procedures or otherwise provided by thelaw, a collegiate panel composed of both judges and people’s assessors should beformed to try the following cases: (1) civil, criminal and administrative cases ofsignificant social influence; (2) first-instance criminal cases in which the defen-dant has made such a request; (3) first-instance administrative cases in whichthe plaintiff has made such a request; and (4) first-instance civil cases if eitherthe plaintiff or the defendant has made such a request. It bears noting that,unlike the jurors in common law jurisdictions, a people’s assessor, once sittingon the panel, should have the same power, rights and duties as the judge-memberof the panel. He or she has equal voting rights when it comes to the confirmationof evidence, application of law and rendering of verdict, except that he or shecannot serve as the presiding judge.

China adopts a two-tier trial system, under which the judgment of the first-instance court may be appealed as of right, but the second-instance judgment

110 Law on Judges, art 14.111 R Peerenboom (2002) op. cit., p. 294.



automatically reaches finality and is not appealable. At the appellate level, exceptfor cases involving the death penalty, all other cases take legal effect and becomeenforceable immediately upon announcement.112 Non-appealed first-instancerulings will also become final after the prescribed period for appeal. The appellatecourt will conduct a de novo review of both facts and law, as is the case in someother civilian jurisdictions.

Open trial of cases is now recognised as one of the fundamental principlesof the Chinese legal system.113 Under the Constitution and other laws, all casestried by courts should, unless otherwise provided for in the law, be conductedin open hearings. This enables the public, including the media, to have access tothe trial process. The SPC in March 1999 issued a regulation requiring open trialto be a general rule. In June 2000, the Supreme Court decided to make publicits judgments through major media outlets, court publications and the internet,hoping to set an example for lower courts.114 Another SPC regulation issued inJune 2007 stipulated that open trial is ‘an inherent requirement for building thesocialist harmonious society’ and detailed the procedures for providing access totrials for the public.115

The Organic Law of the Peoples’ Courts, however, excludes the following casesfrom the open trial requirement: cases involving state secrets, cases involvingpersonal privacy and cases involving crimes committed by minors.116 In practice,international observers are most concerned with cases concerning state secrets,as the 1988 Law of the PRC on Guarding State Secrets includes a very broad defini-tion of ‘state secrets’, covering possibly almost any information,117 and nationaland local officials are allowed to decide whether there is a state secret even afterthe information has already been in the public domain. In almost all politicallysensitive cases, the courts, as an instrument of the CPC, arbitrarily classifyinformation involved as state secrets in order to hold trials behind closed doors.

Widely viewed as a traditional civil law country which adopts the inquisitorialmodel for court trial, China has been moving towards the adversarial systemin recent years in both civil and criminal cases in the sense that judges relymore on the parties to present evidence and legal arguments. This means thatjudges have to deal with increasingly well-trained and probably better-educatedlawyers. Nonetheless, the court preserves the power to verify evidence presentedand acquire other evidence by conducting its own investigation. In addition, aparty may request the court to investigate the facts, which often means that therequesting party has to pay for the costs of investigation.

112 Under the system of review of the death penalty, all death sentences, whether rendered by the tribunalof first instance or the appellate court, must be submitted to the SPC for final verification and approval.113 SCIO, op. cit. (section VI, ‘Judicial System and Fair Administration of Justice’).114 K Zou, China’s Legal Reform: Towards the Rule of Law, Martinus Nijhoff Publishers, Leden and Boston,2006, p. 157.115 Guanyu Jiaqiang Renmin Fayuan Shenpan Gongkai Gongzuo de Ruogan Yijian [Several Opinions Concern-ing Strengthening the Open Trial Work of the People’s Court], promulgated by the SPC on 4 June 2007, SPCdocument number: Fafa (2007) 20 Hao.116 Organic Law of the People’s Court, art 7.117 Law of the People’s Republic of China on Guarding State Secrets, art 8.


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The move to the adversarial system is more noticeable in criminal cases largelybecause of the public’s concern of human rights–related procedural issues. It is,however, still an open question whether the adversarial system suits China’s legalculture. As noted previously China’s legal traditions have emphasised substantivejustice. In litigation, the role of the court under the procedural laws is to seek thetruth through exhaustive search of the facts and then strictly apply the law. Aspointed out by Peerenboom:

[T]he inquisitorial system, with its longer detention periods that reduce the threatsto society even if at the expense of individual liberty, fits more readily the public’sdesire for social stability. With its emphasis on truth, it also conforms more closely totraditional emphasis on substantive justice than does the adversarial system, whichemphasizes procedural justice and a fair fight between the parties.118

It is, however, important to stress that the inquisitorial system presumes animpartial and capable judiciary and procuratorates ‘committed to discoveringthe truth’;119 otherwise it could easily harm the interests of the parties if misusedby incapable judges and prosecutors or abused by them for rent-seeking purpose.In this sense, the inclusion of more adversarial elements may let the partieshave more control of the adjudication process, thus checking the powers of theprosecutors and judges.

Adjudicative committee

A very special arrangement in China’s court system is the adjudicative committee(AC) (shenpan weiyuanhui), set up in courts of all levels. Comprising the headsand senior judges in the court, the AC is mandated to ‘summarize adjudicativeexperience and discuss important or difficult cases and other issues relating tothe judicial work.’120 Members of the AC are appointed and removed by thestanding committee of the people’s congress at the corresponding level.

When the AC meets, the president of the court is the ex officio chairperson,and the chief procurator of the people’s procuratorates at the correspondinglevel may attend the meeting without voting rights.121 For adjudicative mat-ters including trials, the AC is certainly the highest authority within a court.As the law so entitles, almost all socially influential cases and sensitive casesare decided finally not by the single judge or collegiate panel, but by themysterious committee whose name never officially appears in the text of anyjudgment.122

Many legal scholars have advocated for the abolition of the AC system, largelyon the ground that it deprives the parties of their litigation rights and opens thedoor for undue influence from outside the collegiate panel. This is because one

118 R Peerenboom, China Modernizes: Threat to the West or Model for the Rest?, Oxford University Press,Oxford, 2007, p. 204.119 ibid.120 Organic Law of the People’s Courts, art 10.121 ibid.122 L Zhao, ‘Zhongguo Fayuan Yu Jieshu Chuilian Duan’an’ [‘Courts in China Want to End the Practice ofHolding the Court from Behind a Screen’], Nanfang Zhoumo [Southern Weekend], 15 November 2007.



of the most the salient features of the AC involvement in court trials is that itmakes decisions based on briefing by the responsible judge of the collegiate panelwithout facing the parties. That is to say, the parties will never have opportunityto present evidence and arguments directly to the AC, and sometimes they evendo not have the knowledge that the AC has the final say on the case. This hasresulted in the simultaneous practices of ‘shen er bu pan’ (‘the adjudicator doesnot render the judgment’) and ‘pan er bus hen’ (‘the judgment-renderer doesnot try the case’). These practices on the one hand reduce the incentives of theresponsible judges to pay attention to the legal arguments, and on the other handgenerate a situation in which no one is responsible for the judgment as both theresponsible judges and the members of the AC can have reasons to claim noresponsibility.

Supporters, however, argue that the system is necessary at this stage of China’slegal development given the low level of competence of some judges as well asthe rampant corruption in the judiciary. Thus review by more senior, moreexperienced judges ensures the quality of the judgment. It is also an institutionalarrangement to reduce corruption. Zhu Suli, Dean of the prestigious PekingUniversity Law School, argues that ‘it might be easier to brief one or two or evenmore judges of the collegiate bench, but would be extremely difficult to buy allthe nine members of the AC’.123

In recent years, the SPC has put forward a variety of proposals for reformingthe AC. The aim is to give more power to individual judges and collegiate panels todecide cases independently, with the condition that the AC system be preservedand improved. The AC now may hear the cases directly and make inquiries ofthe parties (or defendants). It has been proposed that the AC of the SPC set upsubcommittees specialising in criminal and civil/administrative matters, and forthe HPC and IPCs to set up specialised subcommittees based on adjudicativeneeds. Court presidents and division heads are also encouraged to join collegiatepanels to face cases directly.124

Adjudication supervision

Another innovative, yet highly unusual trial practice (from a comparative per-spective) in China is the complex adjudication supervision system. According tothe Organic Law of the People’s Courts and the procedural laws,125 even cases forwhich the rulings have reached finality may be challenged and retried under thefollowing circumstances:● If the president of a court finds definite errors in fact-finding or application

of laws in a legally effective ruling rendered by his or her court, he or shemust submit the ruling to the court’s AC to discuss reopening the case.

● If the SPC finds definite errors in a legally effective ruling by any lowercourt or if a court at a higher level finds such error in a legally effective

123 ibid. (quoting Zhu Suli). See also R Peerenboom (2007) op. cit., pp. 212–13.124 See L Zhao, ibid. See also R Peerenboom (2007), ibid.125 Namely the Civil Procedure Law (1991; Rev 2007) and the Criminal Procedure Law (1979; Rev 1996).


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ruling by a lower court in its jurisdiction, it has the authority to review thecase itself or order the lower court to conduct a retrial.

● If the Supreme People’s Procuratorate finds definite errors in a legallyeffective ruling of a court at any level or if a people’s procuratorate at ahigher level finds such errors in a legally effective ruling by a court of lowerlevel in its jurisdiction, it has the authority to lodge a protest.

● Lastly, the parties may petition the court to reopen a case if the litigantestablishes newly found evidence sufficient to support a reversed judg-ment, no sufficient evidence in the original trial, wrong application of thelaw, procedural violation in the original trial, or any judicial misconductcorruption.

In addition to the formal adjudicative supervision within the judicial system,pressure from the local people’s congress or from the local CPC organisations canresult in an individual case being be reopened, legally through the adjudicativesupervision mechanism. The PRC Law on Supervision of the Standing Committeeof People’s Congresses, promulgated on 27 August 2006, has put an end to thenational and local parliaments’ practice of individual case supervision.

This underlying philosophy of the adjudicative supervision system conforms tothe Chinese legal system’s traditional emphasis on substantive justice. ‘Support-ers argue [the supervision] is necessary because of the low level of professionalcompetence of some judges, the existence of judicial corruption, and the adverseinfluence of local and departmental protectionism. They claim supervision helpsto correct injustices, promote the rule of law, and serves a deterrent function.’126

Opponents, however, assert the system ‘impedes judicial independence, hindersthe emergence of a more authoritative court, and leads to conflicts between thecourt and other state organs.’127 It is also a sensible argument that the systemundermines the fundamental rule of law principles of certainty and finality,128

and eventually the legitimacy of the judicial system as there is, absolutely intheory and often in practice, no judgment that is really final.

4.5 The procuracy

As noted previously, China’s procuratorates as a legal institution are treatedas part of the judicial system, not part of the executive branch, as is the casein many other countries. The procuratorates are in charge of initiating publicprosecution against suspects of crimes on behalf of the state. For ordinary casesunder investigation by the police, the procuratorates decide whether to prosecutethe defendant by examining the facts and the legal grounds for the case basedon the reports of the police. For cases concerning treason, attempts to split thecountry and other serious criminal offences that sabotage the implementationof state policies, the procuratorates have authority that covers a wide range

126 ibid., p. 214.127 ibid., p. 214.128 ibid., pp. 214–15.



of investigating and enforcing powers. The procuratorates directly investigatecriminal cases involving personnel of state agencies, such as embezzlement,taking bribes, dereliction of duty and infringement of others’ rights. They decidewhether to issue arrest orders for the police to arrest and detain suspects. Last butnot least, the procuratorates serve as a check and balance on the powers of thecourts and the government, as they have the authority to supervise the legality oftrials in the courts, and the investigatory activities of the police and state securityorgans, as well as the operation of prisons, houses of detention and correctionalinstitutions.129 In cases where the procuratorates find definite errors, they canlodge protests to the court of the same level or a higher level.

Reflecting the structure of courts, the Organic Law of the People’s Procu-ratorates establishes a four-level procuratorate system: the Supreme People’sProcuratorate at the top, followed by the High People’s Procuratorates in the31 provinces, hundreds of Intermediate People’s Procuratorates, and thousandsof Basic People’s Procuratorates. There are also some specialised procuratoratessuch as the military procuratorial organs. One noticeable difference between theprocuratorate system and the court system is that the procuratorates are underthe dual-leadership of the people’s congress at the corresponding level and of theprocuratorate at the higher level. A conflict of powers could only be reconciledby the CPC’s mono-leadership.

Under the traditional communist political discourse, the courts, the procuracyand the police are supposed to unite as a trinity to advance state interest.130 Sev-eral decades of legal reform has, however, greatly eroded the basis of the unityand increased the functional independence, specialisation and departmentalismof each agency. This has also led to growing tensions among these agencies. Forinstance, the procuratorates, because of their constitutional mandate for super-vising the courts, might consider themselves superior to the courts. Likewise,the courts’ superiority complex is derived from the fact that courts are the finaladjudicator, even for cases brought by the procuratorates.131

4.6 CPC Political-Legal Committees (Zhengfa Weiyuanhui)

In the Chinese Party-state, the CPC’s dominance of political life inevitably extendsto the legal arena.132 Peerenboom observes that ‘the Party influences the courts invarious ways and through various channels. The Party primarily exerts influencein the areas of ideology, policy, and personnel matters, though it sometimes isinvolved directly in deciding the outcome of particular cases.’133 One of the most

129 See generally the Organic Law of the Peoples’ Procuratorates (1979; Rev 1983).130 R Peerenboom (2002), op. cit., p. 312.131 The broader context is the growing institutional competition in China’s political system. As Liebmanobserves, ‘[t]he central Party-state has encouraged a range of official actors – including the courts, the media,letters and visits bureaux, the procuratorates, Party discipline authorities, and people’s congresses – to playoversight roles, often over each others.’ B L Liebman, ‘China’s Courts: Restricted Reform’, Columbia Journalof Asian Law, vol. 21, no. 1, 2007, p. 40.132 See generally K Zou, op. cit., pp. 45–72.133 R Peerenboom (2007), op. cit., p. 302.


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important institutional channels in this regard is the system of CPC Political-Legal Committees (PLCs). The PLC system was established in the 1950s, origi-nally as a repressive empire against the ‘class enemies’ classified by the Party.134

In the reform era, it has been turned into powerful Party machinery to over-see all legal enforcement authorities and exert ‘united leadership’ for legalaffairs.135

The Central PLC currently comprises a member of the Politburo StandingCommittee,136 the Minister of Public Security, the President of the Supreme Peo-ple’s Court, the President of the Supreme People’s Procuratorate, the Ministry ofNational Security, the Minister of Justice, the Commander in Chief of the ArmedPolice, a representative from the military, and several staff members. The localPLCs largely have a similar composition that represents the internal groupingsof the CPC organisation at the local levels. Bringing representatives of differentpolitical and legal institutions (some of which are supposed to serve as checksand balances on each other’s power) itself demonstrates a strong characteristicof the China’s ‘socialist legality’, which requires an institutional arrangementto guarantee the ultimate control of the CPC over legal matters.137 Neverthe-less, Peerenboom maintains that ‘it is clear that the PLC is primarily responsiblefor ideological work through setting and disseminating policy, though it is alsoinvolved in the decision-making process for certain important or difficult casesand on occasion in personnel decisions.’138

5 Legal profession

By early 2009 in China there were about 143 000 registered lawyers workingin approximately 13 000 registered law firms.139 Compared with the situationduring 1979–1980 when there were less than 300 lawyers in a handful of state-owned law firms,140 it has to be admitted that the legal profession is indeed thefastest growing industry in the legal community in China.

The evolution of the legal profession perfectly reflects the development of therule of law and the Party-state’s ambivalent attitude towards it. After the endof the Cultural Revolution, China’s paramount leader, Deng Xiaoping, acknowl-edged the essential role of lawyers for China’s reform and ‘open door’ policyand estimated China would need between 100 000 and 200 000 lawyers to meet

134 K Lieberthal, Governing China: From Revolution Through Reform, WW Norton & Company, New Yorkand London, 2004, pp. 224–5.135 A brief official description of duties of the Central PLC can be found on the website of the People’s Daily,the CPC’s flagship newspaper: <http://cpc.people.com.cn/GB/64114/64135/5994757.html>.136 The Politburo Standing Committee is the highest and most powerful decision-making body in the CPC,and its members are China’s top leaders.137 T Saich, Governance and Politics in China, 2nd ed, Palgrave Macmillian, New York, 2004, p. 139.138 R Peerenboom (2007), op. cit., p. 303.139 Information accessed from <http:wwwxinhuanet.com> on 15 April 2009.140 J Chen (2008), op. cit., p. 162.



the needs of the new society.141 The 1980-adopted Provisional Regulations onLawyers re-established the legal profession. Lawyers were, however, definedrestrictively as ‘state legal workers’ with the task ‘to provide legal assistanceto state organs, enterprises and institutions, social organisations, people’s com-munes and citizens’.142 Put simply, lawyers were just like other governmentemployees and their mission was to advance state interests through legal work.

In 1996 a formal Lawyers Law was adopted, in which lawyers were redefinedin a much less politically charged way as legal practitioners licensed to ‘providelegal services to the society’.143 Despite the strong rhetoric of socialism andthe avoidance of the more typical description that lawyers should provide legalservices to clients, under the new law ‘Chinese lawyers [were] now neverthelessallowed by Chinese law to perform similar functions to those lawyers in othercountries’.144 The Lawyers Law was revised in 2007, and now the definition of alawyer is one who is licensed to ‘provide legal services to clients’ under a retaineror designation.145 Under the revised law, lawyers are required to ‘safeguardthe client’s lawful rights and interests, safeguard the correct implementation ofthe law, and safeguard social fairness and justice.’146 As Peerenboom succinctlyremarks, ‘[t]he change in the definition of lawyers and the toning down of therhetoric of socialism, particularly when coupled with structural reforms to theorganisation of law firms, represent steps in the direction of greater independenceof the legal profession.’147

To obtain the practicing licence for lawyers, one must pass the National Judi-cial Examination (NJE) that is held on a yearly basis and have undertaken atraineeship with a law firm for more than one year. The person also needs toshow he or she upholds the PRC Constitution and has good conduct. To sit forthe NJE the requirements are that one (1) is a PRC citizen; (2) upholds the PRCConstitution and has rights to elect and be elected to public office; (3) has fullcapacity for civil conduct; (4) has graduated with an undergraduate degree froma law school or department in a higher educational institution, or from a non-lawschool or department but has knowledge of the legal field; and (5) can show goodconduct.148 Permanent residents or citizens of Hong Kong, Macau and Taiwanare also allowed to participate in the NJE. A lawyer can only practise in one lawfirm, but there are no geographic restrictions on a lawyer’s legal practice withinthe PRC.

The legal form of a law firm could be either a general partnership or specialgeneral partnership according to China’s Partnership Enterprise Law (1997; Rev2006). An individual lawyer with legal practice experience of more than five

141 R Peerenboom (2002) op. cit., pp. 347–8.142 Provisional Regulations of the People’s Republic of China on Lawyers (1980; abolished in 1996).143 Lawyers Law 1996, art 2.144 J Chen (2008) op. cit., p. 163.145 Lawyers Law (1996; Rev 2007), art 2.146 Lawyers Law (1996; Rev 2007), art 2.147 R Peerenboom, (2002) op. cit., p. 352.148 Ministry of Justice of the People’s Republic of China (MoJ), Guanyu 2009 Guojia Sifa Kaoshi YouguanShixiang de Gonggao [Public Notice on the Relevant Matters Concerning 2009 National Judicial Exam], PublicNotice No. 85, 25 May 2009.


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years could also establish a solo practice, called an ‘individual law firm’, wherebythe lawyer bears unlimited liability for all the debts incurred in the firm’s practice.Only the state can establish limited liability law firms. An overwhelming majorityof the law firms today are partnership firms.

Privatisation has probably had the most significant impact on the legal profes-sion. If law firms and lawyers are not financially beholden to the state, they willbe more likely to confront the state in legal disputes between state and citizens,and even use law as a weapon to limit the state’s exercise of powers. That said, thelegal profession today is at best semi-independent in the sense that the Govern-ment, or the PRC Ministry of Justice which is charged with regulating law firmsand lawyers, has a strong desire to control the legal profession. Although the All-China Lawyers’ Association was incorporated as a self-regulatory organisation,it is listed as a ‘subordinate unit’ under the Ministry of Justice.149 Likewise, locallawyers’ associations are subordinated to the departments of justice of their localgovernments.

Despite the many restrictions on lawyers and lawyering, Chinese lawyers arebecoming increasingly independent and many of them have taken on the stateto safeguard their clients’ rights. As Jianfu Chen observes:

Taking advantage of the amendments made to the Criminal Procedure Law of the PRCin 1996 (effective 1 January 1997) that afford defence counsel a greater role in discov-ery, the examination of witnesses and the presentation of evidence, criminal lawyersare becoming more aggressive in defending their clients. Similarly, lawyers are makinguse of a variety of means provided by administrative laws such as the AdministrativeLitigation Law of the PRC (effective 1 October 1990) and the Administrative Supervi-sion Law (effective 9 May 1997) to sue the government and challenge administrativedecisions.150

An even greater role and better protection was given to lawyers under the 2007revised Lawyers Law (effective 6 June 2008) in which a whole chapter coversthe rights and responsibilities of lawyers. Under art 33 of the new law, as of thedate of first interrogation of or adoption of a compulsory measure in relation toa criminal suspect or defendant by the crime investigation organ, an authorisedlawyer has the right to meet with the criminal suspect or defendant to gaininformation related to the case, simply by presenting his or her legal practisinglicence, law firm certification, and power of attorney or official legal aid papers.Previously such a meeting would, in addition to presentation of the documentsabove, have required an approval from the judicial authorities. Article 33 alsoprovides that the lawyer’s meeting with a criminal suspect or defendant shallnot be under surveillance. Before this revision, it was a common practice of thepolice or procuracy to have their own staff in such meetings. Article 34 of thenew Lawyers Law now grants lawyers the rights to read, extract and duplicate alllitigation documents and case materials related to their case. Before the revision,they were only allowed to read the relevant materials within the courts or thecrime investigation agencies.

149 See the website of the PRC Ministry of Justice: <http://www.moj.gov.cn/>.150 J Chen (2008) op. cit., p. 166.



6 New directions and trends

Despite the proclaimed ambition to establish a socialist legal system by 2010,legal reform has been steered towards an uncertain direction by the Chinese, orprecisely, the CPC, in the past two years.

When Xiao Yang was the President of the SPC, judicial reform followed adirection towards modernisation and, to some extent, westernisation, featuringvalues such as judicial independence, supreme authority of the rule of law, andprocedural justice. This has incurred a political backlash in recent years. On theone hand, the emphasis on judicial independence has undermined the CPC’sauthority and even its legitimacy. Active involvement of lawyers in politicallysensitive cases involving citizens’ civil and political rights has led to concernswithin the Party-state that the rule of law is being used as a tool to promotesocial and political changes, such as colour revolutions,151 in China. On theother hand, there is growing discontent that the reform promoted by Xiao Yanghas not enabled the courts to provide an effective remedy to disgruntled partieswith legitimate complaints.152

Following Chinese President Hu Jintao’s remarks that judges and procura-tors ‘shall always regard as supreme the party’s cause, the people’s interestand the Constitution and laws’ (which were characterised the famous ‘ThreeSupremes’),153 an internal legal document on judicial reform was issued bythe powerful Central Political-Legal Committee of the CPC in December 2008,aiming to shift the reform from the emphasis on judicial autonomy and profes-sionalism to the ‘mass line’ approach.154 In this light, the new move has a numberof guidelines.155

First, judicial reform must adhere to the leadership of the CPC. Second, thereform must be politically correct in the sense that it must be conducted withinthe boundaries of socialism with Chinese characteristics. Third, it should be lessambitious in light of the developmental stage of Chinese society and the economy.

151 Colour revolutions refer to the regime change movements that developed in several former Soviet Unionstates and Balkan states during the early 2000s. The movements adopted a specific colour or flower as theirsymbol. The Rose Revolution in Georgia led to the overthrow of Eduard Shevardnadze and a democraticelection in 2004 which put in power the pro-West President Mikhail Saakashvili. The Orange Revolution inUkraine resulted in the annulment of the result of a disputed Ukrainian presidential election in 2004, and thepro-West Yushchenko, leader of the opposition movement, was declared President in 2005. Official media inChina hold that these revolutions were supported by Western politicians and intelligence agencies.152 L Ke and W Ting, ‘Dalu Sifa Tizhi Gaige Zhuan Xiang’ [‘Judicial Reform in the Mainland has Turned to aDifferent Direction’], Fenghuang Zhoukan [Phoenix Weekly], 25 February 2009. Also, email correspondencewith R Peerenboom, 6 August 2009 (on file with the author).153 ‘Hu Jintao Jiu Zuohao Zhengfa Gongzuo Tichu 5 Dian Yaoqiu’ [‘President Hu Jintao Makes Five Demandsfor Good Political-Legal Work’], Xinhua, 25 December 2007. See also J Cohen, ‘Body Blow for the Judiciary’(op-ed), South China Morning Post, 18 October 2008.154 In Chairman Mao’s political discourse, the mass line, dealing with the relationship between the rulingparty and the people, forms a basis of the CPC’s leadership doctrine. As Lieberthal observes, “[t]he basicidea was that officials in direct contact with the masses should always remain close enough to the people tounderstand their fundamental desires and concerns. These officials would report their understanding up thehierarchy to provide the leaders a good sense of what people would welcome and implement and what theywould not.” K Lieberthal, op. cit., p. 64.155 See, for example, Q Wang, ‘Xin Yilun Sifa Tizhi Gaige Zhixiang’ [‘The Direction of the New Round of theJudicial Reform’], Liangwang Xinwen Zhoukan [Outlook News Weekly], 5 January 2009.


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Foreign elements should be borrowed cautiously to make sure they fit in withChina’s indigenous conditions. Fourth, the reform must adhere strictly to themass line. The purpose of the judicial reform is said to be meeting the people’sdemand for judicial justice and promoting social stability and harmonisation.Fifth, there must be effective coordination of the relations among different organsof the bureaucracy and among different levels of the government. Lastly, thereform must comply with existing laws. No measure inconsistent with the existinglaws shall be implemented before the laws are revised.

One of the specific impacts of the new reform is the legal system’s refocusingon substantive justice. One of the SPC’s new policies on judicial settlement ofdisputes is ‘an jie shi liao’, meaning the problems must be solved when the caseis closed. That is to say, simply providing a judicial solution is not good enough;it must also be a good solution which contributes to social harmonisation or atleast does not cause social instability. This has encouraged the judiciary to shiftthe focus to mediation. Indeed, senior leaders of the CPC have strongly requestedthe courts to ‘use as much as possible methods such as mediation, reconciliation,search exhaustively the balance point between various conflicting interests, andattempt to achieve a win-win solution in disputes settlement’.156 Wang Shengjun,the current President of the Supreme Court, indicated that the courts shouldconsider mediation as the first method to use in resolving disputes.157 In practice,the judiciary has begun to channel the disputes to other organisations in the pre-filing period. For cases docketed by the courts, the judges would conduct first apre-hearing mediation followed by an after-hearing mediation.

It might be too early conclude that the recent new move in judicial reform sig-nals a significant setback in China’s legal construction. In a broader context, it isuseful to notice some very positive developments in the recent two years duringwhich the Party-state has tightened ideological constraints. These include therevision of the Lawyer’s Law to give practicing lawyers more rights; the acceler-ated privatisation of the legal profession; the proposal to centralise funding forthe courts so that they are less vulnerable to local protectionism; legalising opentrial procedures; and the adoption of anti-torture measures in the judicial pro-cess. These reforms should meaningfully contribute to the rule of law in China.

A plausible explanation for the mixed message sent by the ‘Three Supremes’is probably that the Party-state would tolerate, or even encourage, rule of lawdevelopment to the extent that law does not become a threat to its monopoly ofthe political powers. It is certainly true that the ‘Three Supremes’ stress the Party’sleadership, but it can also be read that the CPC must also act within the boundariesof the PRC Constitution and basic laws. In this sense, the ‘Three Supremes’ alsolegitimises the essential role of law in the Party’s political discourse.

156 Y Zhou, ‘Shenru Guanche Luoshi Kexue Fazhanguan, Cujin Jingji Pingwen Jiaokuai Fazhan, BaozhangShehui Gongping Zhengyi, Weihu Shehui Hexie Wending’ [‘Deeply Implement the Concept of ScientificDevelopment, Promote Stable but Relatively Fast Economic Growth, Safeguard Social Fairness and Justice,and Maintain Social Harmonization and Stability’] (speech delivered at the National Conference on Political-Judicial Work, 17 December 2008), available at People’s Daily Online <http://www.people.com.cn/>.157 See also Chapter 2, section 7.4.



7 Conclusion

China has gone a long way towards establishing the rule of law in the past threedecades. Legal reconstruction in China has been subject to the (in)fusion ofthree schools of influence, namely traditional legal thought, socialist ideologyand Westernisation. China is clearly close to its proclaimed goal of building acomprehensive socialist legal system by 2010. It has established sophisticatedlegal institutions for making, interpreting and applying the law. More impor-tantly, Chinese people are increasingly turning to the legal system for help, as isevident from the number of cases initiated every year.158 The belief in the ruleof law is taking hold in China.

But measured by any standard the Chinese legal system is still less than ade-quate. Obstacles to the rule of law seem difficult, if not impossible, to surmount,especially when it comes to citizens using the law to take on government. Judicialinstitutions are not independent of the ruling party. Recently, a reorientation ofthe judicial reform has solidified the dominant role of the CPC in the judiciary,strengthening the long-existing impression that the Party is above the law. In theforeseeable future, the Chinese legal system can only develop to the extent thatit does not become a force for political change threatening the ruling status ofthe CPC.

References

A Articles/Books/Reports

Chen, A H Y, ‘Socialist Law, Civil Law, Common Law, and the Classification of Contempo-rary Chinese Law’, in Otto, J M, Polak, M V, Chen, J and Li, Y,(eds), Law-Making in thePeople’s Republic of China, Kluwer Law International, The Hague, 2000

An Introduction to the Legal System of the People’s Republic of China, LexisNexis, HongKong, 2004

Chen, J, ‘Market Economy and the Internationalization of Civil and Commercial Law inPeople’s Republic of China’, in Jayasuriya, K (ed), Law, Capitalism and Power in Asia,Routledge, London, 1999

Chinese Law: Context and Transformation, Martinus Nihhoff Publishers, Leiden andBoston, 2008

Ch’u, T, Law and Society in Traditional China, Mouton & Co, Paris, 1961Clark, D, ‘The Many Meanings of the Rule of Law’, in Jayasuriya, K (ed), Law, Capitalism

and Power in Asia, Routledge, London and New York, 1999Clarke, D, Murrell P, and Whiting, S, ‘The Role of Law in China’s Economic Development’,

in Brandt, L and Rawski, T G (eds), China’s Great Economic Transformation, CambridgeUniversity Press, Cambridge, 2008

Clarke, D C, ‘Puzzling Observations in Chinese Law: When is Riddle Just a Mistake?’, inHsu C S (ed), Understanding China’s Legal System: Essays in Honor of Jerome A Cohen,New York University Press

158 In 2009 alone, the SPC tried and closed 11 749 cases, and lower courts tried and closed 10.54 millioncases. See W Shengjun, Work Report of Supreme People’s Court of China (delivered at the Third Session ofthe Eleventh National People’s Congress, 11 March 2010), The National People’s Congress of the People’sRepublic of China <www.npc.gov.cn/npc/xinwen/2010-03/18/content_1564249.htm>.


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Cohen, J, ‘Body Blow for the Judiciary’ (op-ed), South China Morning Post, 18 October2008

Cohen, J A, and Lange, J E, ‘The Chinese Legal System: A Primer for Investors’, New YorkLaw School Journal of International and Comparative Law, vol. 17, no. 2 & 3, 1997,p. 345

Dam, K W, The Law-Growth Nexus: The Rule of Law and Economic Development, BrookingsInstitution Press, Washington DC, 2006

David, R, and Brierley, J E C, Major Legal Systems in the World Today, 3rd ed, Stevens &Sons, London, 1985

Dowdle, M W, ‘Of Parliaments, Pragmatism, and the Dynamics of Constitutional Devel-opment: The Curious Case of China’, New York University Journal of International Lawand Politics, vol. 35, no. 1, 2002, p. 1

Fairbank, J K, and Goldman, M, China: A New History, 2nd enlarged ed, The Belknap PressHarvard University Press, Cambridge, MA, 2006

He, Q, and Xiuqing, L, Waiguo Fa Yu Zhongguo Fa – Ershi Shiji Zhongguo Yizhi Waiguo FaFansi [Foreign Law and Chinese Law – A Reflection on the Transplantation of ForeignLaw in China in the 20th Century], China University of Political Science and Law Press,Beijing, 2002

‘Hu Jintao Jiu Zuohao Zhengfa Gongzuo Tichu 5 Dian Yaoqiu’ [‘President Hu Jintao MakesFive Demands for Good Political-Legal Work’], Xinhua, 25 December 2007

Ke, L and Ting, W, ‘Dalu Sifa Tizhi Gaige Zhuan Xiang’ [‘Judicial Reform in the Main-land Has Turned to a Different Direction’], Fenghuang Zhoukan [Phoenix Weekly],25 February 2009

Keller, P, ‘Sources of Order in Chinese Law’, American Journal of Comparative Law,vol. 42, no. 4, 1994, p. 711

Liang, H, Minfa Zonglun (Di-er Ban) [General Introduction to Civil Law], 2nd ed, FaluChubanshe [Law Press China], Beijing, 2004

Lieberthal, K, Governing China: From Revolution Through Reform, WW Norton & Company,New York and London, 2004

Liebman, B L, ‘China’s Courts: Restricted Reform’, Columbia Journal of Asian Law, vol. 21,no. 1, 2007, p. 1

Michelson, E, ‘Lawyers, Political Embeddedness, and Institutional Continuity in China’sTransition from Socialism’, American Journal of Sociology, vol. 113, no. 2, 2007,p. 352

Peerenboom, R, China’s Long March Toward Rule of Law, Cambridge University Press,Cambridge, 2002

‘Competing Conceptions of Rule of Law in China’, in Peerenboom R (ed), AsianDiscourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve AsianCountries, France and the US, Routledge, London and New York, 2004

‘Courts as Legislators’, The Rule of Law in China Series: Policy Brief 1, The Foundationfor Law, Justice and Society, Oxford, 2006

China Modernizes: Threat to the West or Model for the Rest?, Oxford University Press,Oxford, 2007

Ren, X, Tradition of the Law and Law of the Tradition: Law, State and Social Control in China,Green Wood Press, Westport, 1997

Saich, T, Governance and Politics in China, 2nd ed, Palgrave Macmillian, New York,2004

Supreme People’s Court of China (SPC), Work Report of the Supreme People’s Court at theSecond Session of the Eleventh National People’s Congress, 10 March 2009

Tamanaha, B Z, On the Rule of Law: History, Politics, Theory, Cambridge University Press,Cambridge, 2004

Thio, L, ‘Lex Rex or Rex Lex? Competing Conceptions of the Rule of Law in Singapore’,UCLA Pacific Basin Law Journal, vol. 20, no.1, 2002–03



Wang, J, ‘The Rule of Law in China: A Realistic View of the Jurisprudence, the Impactof the WTO, and the Prospect for Future Development’, Singapore Journal of LegalStudies, 2004, p. 347

Wang,Q, ‘Xin Yilun Sifa Tizhi Gaige Zhixiang’ [‘The Direction of the New Round of theJudicial Reform’], Liangwang Xinwen Zhoukan [Outlook News Weekly], 5 January 2009

Yu, X, ‘Legal Pragmatism in the People’s Republic of China’, Journal of Chinese Law, vol. 3,no. 1, 1989, p. 29

Zhao, L, ‘Zhongguo Fayuan Yu Jieshu Chuilian Duan’an’ [‘Courts in China Want to Endthe Practice of Holding the Court from Behind a Screen’], Nanfang Zhoumo [SouthernWeekend], 15 November 2007

Zhu, J, Zhongguo Falu Fazhan Baogao – Shujuku he Zhibiao Tixi [China Legal Develop-ment Report – Databank and Assessment Criteria], Renmin Daxue Chubanshe [RenminUniversity Press], Beijing, 2007

Zou, K, China’s Legal Reform: Towards the Rule of Law, Martinus Nijhoff Publishers, Ledenand Boston, 2006

B Cases

Guanyu Jiaqiang Renmin Fayuan Shenpan Gongkai Gongzuo de Ruogan Yijian [SeveralOpinions Concerning Strengthening the Open Trial Work of the People’s Court], promul-gated by the Supreme Court of China (SPC) on 4 June 2007, SPC document number:Fafa (2007) 20 Hao)

Zuigao Renmin Fayuan Guanyu Shenli Xingzheng Anjian Shiyong Falv Guifan Wenti deZuotanhui Jiyao, promulgated by the SPC on 18 May 2004, SPC document number:Fafa (2004) 96 Hao

Zuigao Renmin Fayuan Guanyu Sifa Gongkai de Liuxiang Guiding [Six Provisions of theSupreme People’s Court on Judicial Transparency], promulgated by the SPC on 8 Decem-ber 2009, SPC document number: Fafa (2009) 58 Hao

Zuigao Renmin Fayuan Guanyu Sifa Jieshi Gongzuo de Guiding, promulgated by the SPC on23 March 2007, SPC document number: Fafa (2007) 12 Hao

C Legislation

China’s Partnership Enterprise Law (1997; Rev 2006)Civil Procedure Law (1991; Rev 2007)Constitution [Zhonghua Renmin Gongheguo Xianfa] (1982)Criminal Procedure Law (1979; Rev 1996)Law on Guarding State Secrets (1988)Law on Judges (1995; 2001 Rev)Law on Supervision of the Standing Committee of People’s Congresses (2006)Lawyers Law (1996; Rev 2007)Legislation Law [Zhonghua Renmin Gongheguo Lifafa] (2000)Organic Law of the People’s Courts (1979; Rev 2006)Organic Law of the Peoples’ Procuratorates (1979; Rev 1983)

D Web materials

Chen, A H Y, ‘Legal Thought and Legal Development in the People’s Republic of China1949–2008’ (28 March 2009) Social Science Research Network <http://ssrn.com/abstract=1369782>

Clarke, D C, ‘The Chinese Legal System’ (4 July 2005) <http://docs.law.gwu.edu/facweb/dclarke/public/ChineseLegalSystem.html>

Dong, X, and Xiaoli, C, ‘Zhongguo Gaoyuan Yuanzhang Yiban Wei DangzhengChushen, Duoren Weizai Fayuan Gongzuo’ [‘Half of the High Court Presidents were


CHINA 61

Formally Party or Government Officials, and Many of Them Never Had Judi-cial Experience’] (20 July 2009) Sichuan Online/Chengdu Commercial Daily<http://news.xinhuanet.com/local/2009-07/20/content_11736366.htm>

PRC Ministry of Justice website, <http://www.moj.gov.cn/>

State Council Information Office (SCIO), China’s Efforts and Achievements in Promot-ing the Rule of Law (28 February 2008) Information Office of the State Council ofthe People’s Republic of China <http://www.china.org.cn/government/whitepaper/node_7041733.htm>

Supreme People’s Court <http://www.court.gov.cn/>

Wang, S, Work Report of Supreme People’s Court of China (delivered at the Third Sessionof the Eleventh National People’s Congress, 11 March 2010) The National People’sCongress of the People’s Republic of China <http://www.npc.gov.cn/npc/xinwen/2010–03/18/content_1564249.htm>

Work Report of the Supreme People’s Court (delivered at the Second Session ofthe Eleventh National People’s Congress, 10 March 2009) <http://lawprofessors.typepad.com/china_law_prof_blog/files/spc_work_r eport.html>

Wu, B, Work Report of National People’s Congress Standing Committee (delivered at the Sec-ond Session of the Eleventh National People’s Congress, 9 March 2009) The NationalPeople’s Congress of the People’s Republic of China <http://www.npc.gov.cn/englishnpc/Speeches/2009-03/16/content _1493447.htm>

Xiaoping, D, ‘Carry Out the Policy of Opening to the Outside World and LearnAdvanced Science and Technology from Other Countries’ (10 October 1978), SelectedWorks of Deng Xiaoping, vol. II (1975–82), available at People’s Daily Online<http://english.peopledaily.com.cn/dengxp/contents2.html>

Zhou, Y, ‘Shenru Guanche Luoshi Kexue Fazhanguan, Cujin Jingji Pingwen JiaokuaiFazhan, Baozhang Shehui Gongping Zhengyi, Weihu Shehui Hexie Wending’ [‘DeeplyImplement the Concept of Scientific Development, Promote Stable but RelativelyFast Economic Growth, Safeguard Social Fairness and Justice, and Maintain SocialHarmonization and Stability’] (speech delivered at the National Conference onPolitical-Judicial Work, 17 December 2008), available at People’s Daily Online<http://www.people.com.cn/>

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