China’s Legal System. Editor: Pan Guoping and Ma Limin. The Sinopedia Series Singapore: Cengage Learning, 2011.
Establishing a Constitutional System
China started developing a new legal system since the late 1970s. Since then, a constitutional system has been established in the country through unremitting efforts. A legal state is naturally bounded by laws. The current Chinese legal system comprises of seven legal sectors and three levels of rules and regulations. The seven legal sectors are:
- The Constitution and its legislations;
- Civil and commercial laws;
- Administrative laws;
- Economic laws;
- Social laws;
- Criminal laws; and
- Procedural and non-procedural laws.
The three levels of laws and regulations are legal acts, administrative and local regulations, and autonomous and specific regulations. The Chinese legal system represents the results of the reform and opening-up and social development. It also has features such as comprehensive coverage of all ministerial functions, distinct hierarchies in the application of laws, a tightly-integrated structure between laws, and scientific rigor in the expression of the laws.
In addition to the current Constitution of the People’s Republic of China and its four amendments, the NPC and its Standing Committee enacted over 200 laws covering all the seven legal sectors. In each legal sector, basic laws support the formation of a socialist legal system with Chinese characteristics, and the laws required urgently for reform, development, and stabilization have also been stipulated. The State Council stipulated over 600 valid and effective administrative regulations, while the local people’s congresses and its standing committees stipulated 7,000 local regulations, and ethnic autonomous regions stipulated 600 autonomous and specific regulations. Relevant departments of the State Council, the people’s governments of provinces, autonomous regions, municipalities, and major cities also stipulated a large number of regulations. In short, there are laws to abide by in national politics, economics, and social life.
|Valid and effective laws|
|Legal sectors Number||%|
|The Constitution and its legislations||38||16.4|
|Civil and commercial laws||34||14.7|
|Procedural and non-procedural laws||7||3.0|
The table above shows the percentage of valid and effective legislations of every legal sector formulated by the NPC and its Standing Committee.
Compared to the late 1970s, the administrative, economic, civil and commercial, and social laws relate more closely to everyday social and economic conditions. The Constitution is the heart of the legal system, and forms the foundation for the current central and local legislative power sharing system. The next few chapters will introduce specific conditions of other legal sectors and their development and operation.
In ancient Chinese classical and legal documents, many terms such as “decree,” “constitution,” and “statute” were used. For example, “the law enacted by the previous emperors is the constitution” from Shang Shu, Charge to Yue III, and “constitution” was used in the Discourses of Jin State, and Guan Zi, Establishing State Political Power. These terms were equal to “law,” and carried the meanings of “institution” and “statute” without the connotations of the currently used “constitution.”
Zheng Guanying, a reformist in the late Qing Dynasty, first used the concept of “constitution” during the 1880s in his work, Grand Design for a Prosperous Age. In 1908, the Qing government published the Outline of the Imperial Constitution, and “constitution” became a specific term used to refer to a state’s fundamental law. Thus, the meaning of “constitution” for the Chinese people has evolved after 100 years.
The current Chinese constitution is different from other laws, in that it is the “law of laws,” which prescribes the state’s fundamental legal system and the basic principles of the state’s existence.
The current constitution was adopted on December 4, 1982, at the Fifth Session of the NPC, and included the preamble and general principles, fundamental rights and duties of citizens, the state organs, the national flag, the national emblem, and the capital city. It comprises four chapters and has a total of 138 articles. The provisions of the constitution are specific and de nite and can possibly be claimed to be the most comprehensive and definitive in China’s history. The end of the preamble of the current constitution prescribes: “is constitution, in legal form, affirms the achievements of the struggles of the Chinese people of all ethnic groups and defines the basic system and tasks of the state; it is the fundamental law of the state and has supreme legal authority.” Article 5 of the General Principles of Constitution, in accordance with
For Your Information: Zheng Guanying and the Grand Design for a Prosperous Age
Zheng Guanying (1842-1922), a representative of reformers in the late Qing Dynasty, was a modern reformist and native of Xiangshan (now Zhongshan), Guangdong Province. During the reign of Qing Emperor Guangxu (1875-1908), Zheng served as an official for enterprises such as the Machine Weaving Management Bureau, the China Merchants Steam Navigation Company, and various other departments. Unfortunately, he was later forced to retire and he settled down in Macau. In 1894, he completed the Grand Design for a Prosperous Age to promote the ideology of “Save the Nation by Being Strong and Prosperous,” and proposed practical policies specifically targeting the areas of the late Qing Dynasty such as politics, economy, military, diplomacy, culture, and many other aspects, which attracted widespread attention. In his work, he believed that the Qing government should learn from the Western countries and “develop her constitution.”
practical conditions in China, states the following provisions related to the supreme legal authority of the constitution: “No laws or administrative or local rules and regulations shall contravene the constitution. All state organs, armed forces, political parties, public organizations, enterprises, and institutions shall abide by the constitution and the law. All acts in violation of the constitution or the law shall be investigated. No organization or individual is privileged to act above the constitution or the law.” In China, the constitution also has supreme legal authority, not only in the category of the legal norm but also in the category of the entire social norm. To practice the basic strategy of ruling the state according to law, the first priority for China is to implement the constitution. The current constitution is guided by the ideology of the Four Cardinal Principles, namely; taking the path of socialism, upholding the people’s democratic rule, upholding leadership by the Communist Party of China, and upholding Marxism-Leninism and the thoughts of Mao Zedong. These cardinal principles are incorporated into the constitution, which prescribes:
- The people hold all power of the state;
- The state organs of the People’s Republic of China will apply the principle of democratic centralism;
- All ethnic groups in the People’s Republic of China enjoy equal treatment;
- The state rules the country according to law and constructs a socialist legal nation; and
- During the primary stages of socialism, the state adheres to the basic economic system with public ownership remaining dominant and diverse sectors of the economy developing side-by-side, the distribution of work shall remain dominant, with the coexistence of a variety of distribution modes.
Besides highlighting the Four Cardinal Principles, the constitution embodies the following basic values:
- Concentrate efforts on socialist modernization;
- Develop socialist democracy and improve the socialist legal system;
- Safeguard the unity of the country and the unity of all the country’s ethnic groups; and
- Persevere in reform and opening-up by reforming the economic and political systems.
The basic rights of citizens include:
- Equality of all citizens under the law;
- Freedom of speech, the press, assembly, association, procession, and demonstration;
- Freedom of faith;
- Personal dignity; and
- Personal freedom.
The constitution gives specific provisions on the basic rights of citizens based on lessons learnt from the country’s history. Article 41 states that citizens have the right to criticize and suggest improvements for any state organ or functionary. Citizens have the right to file complaints or charges against state organs, or expose any state organ or functionary for any violation of the law or dereliction of duty, and stipulates that the state organ must deal with complaints, charges, or exposures made by citizens in a responsible manner. No one shall suppress such complaints, charges, or exposures, or retaliate against such citizens. Citizens who have suffered losses due to the infringement of civic rights by any state organ or functionary have the right to claim compensation in accordance with the law.
The constitution is based on the principle of democratic centralism for state organs. Experience gained in building political power since the founding of modern China has resulted in comprehensive stipulations on these state organs:
- The state strengthens the system of the people’s congresses as the basic political system; as part of the NPC, its functions and powers are delegated to and exercised by its Standing Committee;
- The state has a president and a vice-president;
- The state establishes the Central Military Commission to lead all the armed forces;
- Under the sole leadership of the central authorities, the state strengthens the local organs, and the people’s congresses at and above the county level have their standing committees; and
- The leaders of the state shall serve no more than two consecutive terms each.
The constitution stipulates specific provisions related to ethnic minority regional autonomy, urban and rural grassroots autonomy, and special administrative regions. Chinese social order has undergone profound changes with the deepening of the opening-up reforms. The NPC appended amendments and supplements to the constitution four times that included certain articles meant to adapt to the changes in social conditions since 1988.
Respect and Guarantee of Human Rights
For the past 30 years, in the development of Chinese laws, systemic reform and changes in perceptions have revolved around the dignity of the Chinese people. Respect and guarantee of human rights and the protection of the fundamental rights of citizens are the necessary requirements for achieving state governance by the Chinese people and maintaining the long-term interests of the people and the nation. The Chinese legal system accords with the development principle of human political civilization, conforms to the fundamental realities of the present developmental level in China, and exhibits specifically Chinese characteristics. The essence of the reform is to put the people first, reflect their common will, and guarantee their fundamental rights.
Due to historical experience, “humanistic concerns” have left deep imprints on the present Chinese legal system, and the development of the rule of law has highlighted the high value placed on human rights. The term “personal dignity” was added to the constitution in 1982. Based on the juncture of the promulgation of the Administrative Procedural Law in 1989 and the State Compensation Law in 1994, China established the administrative procedural system and state compensation system, and most citizens’ lives began improving. The term “human rights” was added to the constitution in 2004, which accelerated the process of its protection.
|Main contents of amendments to the Constitution|
|Year||No. of amendments||Description of amendments|
|1988||2||… State permits the private sector to exist and develop within the limits prescribed by law.|
|… Right to use of land shall be transferred in accordance with the law.|
|1993||9||… Multi-party cooperation and political consultation shall exist and develop under the Communist Party of China leadership.|
|… The term “planned economy” in certain articles changed to “market economy.”|
|… The state practices as a “socialist market economy.”|
|… The state strengthens the formulation of economic laws, improves macro adjustment and control.|
|1999||6||… Stipulation that the People’s Republic of China exercises rulings by law.|
|… Building of a socialist country governed according to law.|
|… Adjustments made to the national fundamental political and distribution system by additional provisions.|
|… In the primary stage of socialism, the state upholds the basic economic system with the dominance of public ownership and the simultaneous development of an economy of diverse forms of ownership.|
|… Upholding of the distribution system with the dominance of distribution according to work and coexistence of diverse modes of distribution.|
|2004||14||… Theory of the “Three Embodiments” in the preamble.|
|… The state encourages, supports, and guides the development of non-public sector areas.|
|… The state exercises supervision and control of non-public sectors in accordance with the law.|
|… Citizens’ lawful private property shall not be encroached upon.|
|… The state protects the legal right of citizens to own and inherit private property.|
|… Article 33 states that the state respects and protects human rights.|
|… The term “special administrative region” was added into Article 59 relating to the NPC composition of the special administrative regions.|
Firing up all levels of society with enthusiasm and the creation of social harmony can only be achieved through persistence in putting people first and respecting and guaranteeing their human rights. China’s main goals are poverty eradication and the removal of backwardness, guarantee of human rights for every person, and the creation of a modern socialist country that is prosperous, strong, democratic, culturally advanced, and harmonious. China’s basic stand on human rights development is:
- Placing top priority on people’s rights to subsistence and development;
- Making development the principal task; and
- Promoting citizens’ political, economic, social, and cultural rights for their all-round development.
China has formulated and improved a series of legal systems to highlight the tenet of human rights, of which its codification and institutionalization are still ongoing.
The Chinese constitution, criminal law, general principles of civil law among other laws include fundamental stipulations on protecting citizens’ right to life. Provisions for workplace safety and health are found in the Law on Workplace Safety and the Law on the Prevention and Treatment of Occupational Diseases. China still retains the death penalty but follows the policy of “judicious sentencing of the death penalty,” and exercises strict and careful control over the use of the death penalty.
Legal protection for personal freedom and dignity is offered through the constitution, criminal laws, and criminal procedural laws, among others. The citizens’ right to their personal name, honor, and portraiture are provided in the General Principles of the Civil Law. Criminal Law prescribe the crime of extortion of confessions by torture performed by judicial personnel, and forbids the extortion of confessions by torture, and also prescribes strict legal procedures for compulsory measures and means, including detention, arrests, investigation, and the gathering of evidence, related to personal freedom and safety.
No administrative regulation or local regulation shall impose any penalties restricting personal freedom as per the Legislation Law and Law on Administrative Penalties. An example of improved legal conscientiousness is the replacement of the Measures for Taking in and Sending back Vagrants and Beggars in Cities with Measures for Assisting Vagrants and Beggars with No Means of Support in Cities.
The State Council enacted the Measures for Taking in and Sending back Vagrants and Beggars in Cities in 1982, and the Ministry of Civil A airs and Ministry of Public Security issued a series of articles and regulations. With the development of Chinese rulings by law and an improvement in the idea of “putting people first,” the above-mentioned measures obviously could not conform to the demands of the new situation. This law and regulation had conflicts with the Legislation Law and the Law on Administrative Penalties. The legal potency is superior to administrative laws and regulations, and regional administrative laws, regulations, and rules. In March 2003, a college graduate, Sun Zhigang, was beaten to death after he was taken in by a shelter in Guangzhou. The case caught public attention and three citizens undertaking legal studies submitted a proposal to the NPC Standing Committee, stating that the Measures for Taking in and Sending back Vagrants and Beggars in Cities posed conflicts with the constitution and laws and hence needed to be re-examined. Several months later, the State Council enacted the Measures for Assisting Vagrants and Beggars with No Means of Support in Cities, and annulled its previous measures. This alteration of laws and regulations is strong evidence of the humanistic concern shown by the country.
The Chinese constitution established the principle that all citizens are equal before the law. The constitution and the Law on Regional Ethnic Autonomy prescribe that all ethnic groups are equal and have the freedom to use and develop their own spoken and written languages, as well as the freedom to preserve or reform their own folkways and customs. The Law on the Guarantee of the Rights and Interests of Women stipulates that women enjoy equal rights with men in political, economic, cultural, social, family, and other areas.
The constitution states that all power in China belongs to the people. Citizens have the right to vote and contest in elections. The constitution and the law guarantee the freedom of speech, the press, assembly, association, procession, and demonstration. The Electoral Law on the NPC and the Local People’s Congresses, Law on Assemblies, Processions and Demonstrations, and other laws and regulations provide guarantees for the political rights and freedom of citizens. The Regulations on Written and Personal Petitions, promulgated by the State Council, protects citizens’ rights to criticism, suggestion, petition, accusation, and impeachment by strengthening the government’s responsibility for handling people’s letters and visits regarding petitions.
The Constitution stipulates that citizens can enjoy religious freedom. The Regulations on Religious Affairs promulgated by the State Council protects the lawful rights and interests of religious bodies, venues for religious activities, and religious believers. The State Council enacted the Provisions on the Administration of Religious Activities of Aliens within the Territory of the People’s Republic of China in 1994 to respect the freedom of the religious belief of foreigners within Chinese territory, and to protect and administer their religious activities, as well as cultural and academic exchanges.
In order to protect her workforce, China has also established laws and regulations such as
- The Labor Law;
- The Law on Labor Contracts;
- the Law on Labor Dispute Mediation and Arbitration;
- the Law on the Promotion of Employment;
- the Regulations of Paid Annual Leave for Employees;
- the Regulation on Labor Security Supervision;
- Work-related Injury Insurance Regulations; and
- Regulations on Unemployment Insurance.
Special protection is given to disadvantaged groups through Regulation on the Employment of the Disabled, Regulations on the Protection of Female Staff and Workers, and Regulations on Forbidding the Use of Child Labor.
China has issued laws and regulations for the legal protection of economic, social, and cultural rights. The constitution states that the lawful private property of citizens will not be encroached upon. The Property Rights Law declares that state property rights of both collective and private persons and the rights of other rights holders are protected. The Law on the Guarantee of the Rights and Interests of the Elderly, the Law on the Protection of Minors, the Law on the Protection of the Disabled, Regulations on Minimum Subsistence Allowance for Urban Residents, Regulations for the Rural Five-Guarantees Work, and Regulations on Pensions and Preferential Treatment for Servicemen, and other laws or regulations reinforce legal protection for special groups. The Law on Compulsory Education reinforces the responsibility of the state for the protection of the implementation of compulsory education, and citizens’ rights to education are protected by law. The constitution states that citizens have the freedom to engage in scientific research, literary, and artistic creation, as well as other cultural pursuits.
Besides that, China has joined 22 international human rights conventions such as
- The International Convention on the Elimination of All Forms of Racial Discrimination;
- The Convention on the Elimination of All Forms of Discrimination against Women;
- The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment;
- The Convention on the Rights of Children; and
- The International Covenant on Economic, Social, and Cultural Rights.
The Chinese government has taken these legal duties seriously and has fully taken advantage of the positive effect of the international human rights convention in the promotion and protection of human rights.
The construction of Chinese laws demonstrates the determination to gain the respect and protection of human rights and citizens’ fundamental rights. Making legislative and systemic adjustments based on “putting people first” will be the direction for Chinese laws and the rule of law in the coming years.