China’s Legislations and Her Judiciary and Procuratorates

China’s Legal System. Editor: Pan Guoping and Ma Limin. The Sinopedia Series Singapore: Cengage Learning, 2011.

National People’s Congress and Legislatures

The Constitution of the People’s Republic of China was written with the socialist principles of China being a united country with harmonious co-existence of her ethnic groups based on the idea of Unitarianism and guided by a stable legislative hierarchy and system. The National People’s Congress (NPC) is China’s state organ that exercises both state and regional powers. The 1954 Constitution stipulated that the NPC was the country’s highest state organ, which has the sole authority to exercise the state’s legislative power. The current 1982 Constitution expanded the authority of the Standing Committee of the NPC by assigning it more legislative powers and powers of legal interpretation, thus strengthening the legislative and supervisory functions of the NPC. The current constitution stipulates that the local people’s congress held in the provinces, municipalities, counties, cities, municipal districts, townships, and towns should be run by local administrative organs, respectively. These amendments assert that in order to strengthen the legal powers of the NPC, China’s nomocratic structure has to be improved through the enhancement of her core legislations.

The NPC holds the highest position of state power, and any other state organs, such as the President or State Council should not surpass or function in parallel with the NPC. Compared to the Parliament under the trias politica system, the NPC has greater powers and a higher position. State powers exercised by the NPC include legislative power, decision-making authority over significant affairs, powers over personnel, powers over the budget, and supervisory authority over the government.

The nature that the NPC and the local people’s congresses possess is that of state organs embodied by their exercising of legislative powers. The Constitution stipulates that the NPC and its Standing Committee exercise state legislative power. The NPC formulates and modifies the criminal, civil, and state organization law, among other basic laws. The Standing Committee of the NPC formulates and modifies other laws beyond these basic laws and makes partial amendments and modifications to the laws formulated by the NPC, as long as there are no conflicts with the basic principle of the amended laws.

In terms of legislative practices since the reform and opening up, legislative procedures and techniques have improved. In 2000, China issued the Legislation Law, which comprehensively improved the legislative procedures right from the foundation levels. The Legislation Law confirmed the exclusive legislative power of the NPC and Standing Committee, such as

  • Affairs concerning state sovereignty over, generation and organization of, and authority of state organs;
  • The regional autonomy of ethnic minorities;
  • The system of special administrative regions;
  • The system of self-governance at the primary level of society;
  • The basic civil legal system;
  • The basic economic legal system;
  • The basic systems of public finance, taxation, customs, finance, and foreign trade, and
  • Matters concerning lawsuits and arbitration.

China’s constitution and legislations stipulate that the State Council can formulate administrative regulations to adapt to her different conditions, such as her vast territories, complex circumstances and unbalanced development between regions. The local people’s congresses and its standing committees organized at the level of provinces, autonomous regions, and municipalities directly under the central government can formulate local regulations, with the precondition that there are no conflicts with the State Constitution, national laws and administrative statutes. The local people’s congresses and its standing committees of comparatively larger cities can formulate local regulations. The offices of the people’s congresses of autonomous regions have the right to formulate specific regulations for their own regions. Hong Kong and Macau Special Administrative Regions (SARs) have independent legislative power, with the precondition that there are no conflicts with the State Constitution and the Basic Law for SARs of the People’s Republic of China.

Chinese law stipulates that the State Constitution has the supreme legal authority, and any other laws, administrative statutes, and local regulations, autonomous regulations, and specific regulations should not create conflicts with the constitution. In terms of hierarchy, laws will be more powerful than administrative statutes, local regulations, and rules. Similarly, administrative statutes are ranked higher than local regulations and rules; while local regulations are ranked higher than the rules of local governments at the same and lower levels.

The offices of the people’s congresses above the county level shall have standing committees. The organization at this level was only created in 1979 after a long period of deliberation. The standing committees of offices of the people’s congresses at local levels often discuss and determine important regional matters, carry out the supervision of the government, courts and procuratorates, receive and reflect the opinions and requests of the people, and handle the suggestions and criticisms of the people so as to strengthen the overall supervision of the state organs.

Before a law is passed, it will be submitted to the NPC or its Standing Committee for voting. This is only done after a common understanding is reached through repeated reviews and discussions, which are essential features of the people’s congress system. The Standing Committee of the NPC usually submits the draft laws for voting only after the draft has been reviewed three times at the meetings of the Standing Committee. For laws drafted for special instances or for those embroiled in controversy, this review may be repeated more than three times. For example, the draft of the Property Rights Law was submitted and passed at the Fifth Meeting of the 10th NPC (2007) after seven reviews.

There is a special committee set up for the NPC and the offices of the people’s congresses at each level. According to the 1982 Constitution and the NPC organic law, the special committee was set up at the First Meeting of the Sixth NPC. There were six special committees to begin with, and has since increased to nine:

  • Ethnic Affairs Committee;
  • Law Committee;
  • Internal and Judicial Affairs Committee;
  • Finance and Economy Committee;
  • Education, Science, Culture, and Health Committee;
  • Foreign Affairs Committee;
  • Overseas Chinese Affairs Committee;
  • Environmental Conservation and Protection Committee; and
  • Agriculture and Rural Affair Committee.

These special committees research, review, and draft proposals related to its scope of work. These committees also play an important role in strengthening the legislation and supervision of the NPC.

The legislative organs at each level of the people’s congresses often hold various kinds of sessions, discussions, and public hearings to gauge the opinions of different parties to increase the level of transparency of legislation and public participation when drafting laws and administrative and local regulations. In the case of drafting laws and statutes of vital public interest, these have to be published in full in the news media for the public’s feedback. After the laws are passed, they are published in the local and national people’s congresses and in government bulletins, government websites, and public media over time. For example, in recent years, drafts of laws and administrative statutes such as the Property Rights Law, the Law on Labor Contracts, the Law on Labor Dispute Mediation and Arbitration, the Law on the Promotion of Employment and Regulation of Real Estate Management have been made available to the public, with extensive efforts made to gather opinions from various quarters.

Election of the People’s Representatives

The NPC is formed by the representatives elected by the people. Article 59 of the State Constitution stipulates that the NPC be composed of the representatives selected from the provinces, autonomous regions, and municipalities directly under the central government, and the military. Each ethnic minority group should have a reasonable number of representatives. The representative electoral system of the NPC established by the Electoral Law and its five amendments (the latest was passed in 2010) has been completed.

According to the current State Constitution and the Electoral Law, except for the authority to elect representatives stipulated by the constitution, other groups such as overseas Chinese should not act as separate electing units. They are required to occupy a certain percentage in the total number of representatives. Each ethnic minority group should have at least one representative regardless of their population size. The electoral system of the NPC is a kind of indirect election based on the regional unit. This electoral system is a combination of the professional representative, the ethnic minority representative, and the regional representative systems.

In March 2010, the Third Session of the 11th NPC adopted the latest amendments to the Electoral Law, which highlight its equality, transparency, justice, universality, standard, and other democratic principles. For example, the newly amended Electoral Law stipulates: “The number of representatives in the National People’s Congress should be determined by the Standing Committee of the National People’s Congress, based on the population of the provinces, autonomous regions, and municipalities, according to the principle that each representative represents the same number of urban and rural populations as well as the requirement that ensure all regions, all ethnic groups, and all groups have the appropriate number of representatives.” This amendment unified the practical and idealistic principles of equality of the urban and rural electorates. In addition, the newly amended Electoral Law also stipulates that the NPC representatives and the representatives of the local people’s congresses at all levels should have wide representation, and there should be an appropriate number of grassroots representatives, especially among the workers, farmers, and intellectuals.

The Election Committee should arrange for candidates to meet the voters; close relatives of candidates should not act as scrutineers, ballot counters, or other such positions.

In the first two sessions of the NPC, the number of representatives was quite small—just 1,226. Later, the number increased to 3,497 up to the Fifth NPC in 1978. It decreased to 2,970 and 2,978 in subsequent sessions. According to provisions under the Electoral Law, the number of representatives in the NPC should not exceed 3,000. In the most recent two sessions (the 10th in 2004 and the 11th in 2008), the number of representatives totaled 2,985 and 2,987, respectively.

The number of local people’s representatives has decreased, while the quality of representatives has increased. The composition of the people’s representatives is moving in the direction of simplicity and effectiveness. The number of local people’s representatives saw an increase after 1979. Later, departments used a mathematical method to determine the number of representatives with a baseline value in addition to the population. This method was included in the amended Electoral Law of 1995. According to this principle, the total number of representatives of the people’s congresses at each level decreased from 6 million to 3.8 million, starting from 1986. Emphasis was placed on the improvement of the representatives’ quality, which changed the knowledge and age structures of the representatives and thus enhanced the efficiency of the meetings.

What is noteworthy is the increasing enthusiasm of the Chinese people when they participated in the election for local representatives for the people’s congresses in recent years. According to provisions under the Electoral Law, there are two ways to select the people’s representatives: (1) the candidates are nominated by an organization, or (2) the candidates are jointly nominated by voters and representatives.

In May 2003, Wang Liang, a resident of the city of Shenzhen, was elected as the Fourth Session Representative of Futian District, Shenzhen City, Guangdong Province, by actively running for election and garnering votes from the electorate. According to Item 2 of Article 29 of the Electoral Law, “voters or representatives forming a group of 10 and above can also recommend candidates.” Article 37 states that “electors can vote for or against the candidate as a representative and can select any other voters or waive the right to vote.” Wang Liang won his Session Representative seat and thus fulfilled his political dream. He was also known as the representative that “jumped straight out” of the ballot box. Wang Liang recounted: “Me being elected had a sense of serendipity involved, but it was also a clear validation of the just structure of the Electoral Law; my election among the other candidates was indisputable and the system has helped to make people more aware of the democratic processes.”

In recent years, such active local representatives participating at every level of the election have appeared. The latest example was Wang Shurong, a 68-yearold woman from Hebei Province. She campaigned to be a NPC representative and finally fulfilled her wish after 20 years of unceasing efforts. In 1987, she contested the election for the first time, getting just 10 votes from her family and neighbors. Henceforth, she contested numerous times and increasingly received more votes. In 2007, she was finally elected as the people’s representative of Xianghe County, Hebei Province. It was her greatest dream to become a representative of the NPC so that she could directly participate in and discuss political Affairs. She had hoped to review documents involving agriculture in her county during her tenure.

China’s Judiciary and Procuratorate

The judiciary in China is made up of judicial organs (such as courts) and civil servants (such as judges) who interpret and apply the laws enacted by the NPC, while the procuratorial system is concerned with the execution of the laws by state administrative organs and her civil servants. There are specific state organs that manage these activities. The main judicial activity revolves around the handling of legal cases, which deal mostly with arbitration of disputes and controversies involving legal problems and the judgment of these cases. Law enforcement entails the all-round management of society, and the content is more comprehensive than for judicial cases. The administrative organs are known as law enforcement organs; they are the executing organs for state power or legislative organs. The laws and other standardized legal files formulated by the legislative organs are carried out and fulfilled by the state. What follows here is an introduction to the judicial system of China. Details on the administrative organs and the content of law enforcement are covered in the next chapter.

According to the provisions of the constitution and laws of China, the judicial and procuratorial organs of respective levels of the state exercise judicial power concertedly. The people’s court is the judicial organ, and the people’s procuratorate is the legal supervisory organ. They independently exercise judicial and procurator powers, respectively, according to the law. They are also not subjected to any interference from any administrative organs, social organizations, or individuals.

The judicial organs include the Supreme People’s Court, local people’s courts, and special people’s courts, such as military courts. The local people’s courts comprise the lower people’s courts, middle people’s courts, and higher people’s courts. The Supreme People’s Court is the highest judicial organ in China.

The procuratorial organs include the Supreme People’s Procuratorate, local people’s procuratorates at respective levels, and special people’s procuratorates, such as military procuratorates. The Supreme People’s Procuratorate is the highest procuratorial organ in China. The responsibility of the people’s procuratorate is to enforce justice fairly and ensure the proper execution of laws.

Ever since 1978, the judicial system has been developed in parallel with the reform and opening up process, during which it has undergone major changes, such as moving from a social appeal system to a government guided system. In the mid-1990s, judicial reformation was a key topic of discussion in academic circles and the media. Since the 15th National Congress of the Communist Party of China (CPC) in 1997, judicial reformation has become a state initiative, dominated by the central government with the close coordination of the respective departments, as well as participation and discussion among all social circles. Judicial reformation is the logical consequence of reform and opening-up, which in itself is an inevitable process. In a sense, judicial reformation can be considered as a phenomenon of the nomocratic development process in China or a focal point on the nomocratic development in China. It is an interesting social project that involves numerous aspects of the judicial system, judicial procedures, and judgment system. This judicial reformation has achieved initial success and seen substantial progress, which is an encouraging sign in the direction of establishing a just, effective, and authoritative judicial system.

China has established and improved the judiciary, created the three major judicial systems of civil, administrative, and criminal affairs, and formed a modern judicial system that conforms to the requirements of a socialist nomocratic country. The judicial system of China includes systems such as the public judiciary, panel discussion, people’s jury, defense of accused, lawsuit agents, legal avoidance, judicial mediation, judicial relief, two-tier trials, and the review of the death penalty system.

The panel discussion system and people’s jury system leads many people to link it to the jury system practiced in the United States, but there is a considerable difference between the two. According to Chinese law, to guarantee the participation of citizens in their trials and to enhance the just application of laws, the people’s jury and judge will form a collegial panel. This panel conducts trials in civil, administrative, and criminal procedural cases with important social impacts. The defendant of a criminal case, the plaintiff or defendant of a civil case, and the plaintiff of an administrative case can apply for the formation of a people’s jury. The people’s jury enjoys the same rights and undertakes the same duties as other panel members. However, it independently exercises its voting rights by drawing conclusions from the facts and making the necessary legal applications. There should be an odd number of members in the panel discussion to prevent a tie during voting.

The judicial mediation system is one example of a legal procedure with specific Chinese characteristics. When pursuing civil cases, according to voluntary, legal, and democratic requirements, the court will adopt the method of mediation to enable both parties to reach reconciliation and settle any disputes over civil rights under the direction of the adjudication personnel. The withdrawal rate through mediation for national civil cases in the first instance was about 56% in 2006. About half of the civil cases in China are settled through judicial mediation.

The review system for the death penalty is an important system independent from the two-tier trial system, as it carries out reviews for death penalty cases. In the course of judicial reformation, the Supreme People’s Court formulated the Decisions on Several Issues Concerning the Review of Death Penalty Cases, which controls and unifies the applicable standard for sentencing of the death penalty, consolidates the standard of evidence submitted for death penalty cases, and standardizes the review procedures for the death penalty so as to guarantee the discretion and justice of death penalty cases. Since the second half of 2006, open court sessions have been held for all death penalty cases of the second instance.

The judicial relief system was born from judicial reformation. Social economic development is still unbalanced and most citizens cannot afford to hire a lawyer or pay lawsuit fees. In accordance with the Regulations on Providing Judicial Relief to the Interested Parties with Economic Difficulties (2000), for parties with financial difficulties in lodging a civil lawsuit or administrative proceedings to the people’s court to protect their own legal rights, the people’s court will implement the relief system that postpones, reduces, or exempts the payment of lawsuit costs. On April 1, 2007, the Method of Payment of Lawsuit Costs formulated by the State Council was implemented, where Chapter 6 stipulates clauses such as the main procedures and conditions for judicial relief. Cases of judicial relief handled by various local courts have seen a growing trend in recent years. In 2003, the number of cases with judicial relief implemented by Chinese courts was 228,282 with a sum of RMB 1.057 billion in lawsuit costs reduced, postponed, or exempted. In 2006, China’s courts implemented judicial relief for 282,581 person-times with a sum of RMB 1.211 billion of lawsuit costs reduced, postponed, or exempted. From 2003 to 2008, judicial relief provided by the courts helped 1.27 million persons with RMB 5.48 billion in lawsuit costs, reduced, postponed, or exempted.

The data show that nearly 80% of criminals with civil compensations are hard to fulfill, as many off enders do not have enough financial assets to compensate the victims. The Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security are exploring ways to establish a relief system for crime victims.

China set up her legal assistance system in 1994. Any citizen who is not able to engage a lawyer due to financial difficulties but is seeking state compensation, applying for social security benefits or minimum standard of living state benefits can apply for legal assistance according to state provisions. In criminal trials, any citizen who cannot engage a lawyer due to financial difficulties can also apply for legal assistance according to state provisions. Any defendant who is not able to engage a lawyer with the following disabilities or disadvantages, such as being blind, deaf, dumb, or is a minor (below 18 years old) or is facing a death sentence, will have a defense lawyer appointed by the people’s court. Local governments at various levels have established legal assistance institutions and are staff ed by full-time personnel dealing in such matters.

China has formulated laws such as the Arbitration Law, the Law on Legal Practice, the Notarization Law, the Law on Labor Dispute Mediation and Arbitration, and the establishment of systems such as arbitration, legal practice, notarization, legal assistance, and judicial examination. The state conducts a unified judicial examination for qualifying junior judges, procurators, and lawyers. China has held her national unified lawyer qualification examinations since 1986 and the national unified judicial examinations since 2002. These examinations have boosted the professionalism of the Chinese legal practitioners.

China has also accelerated her pace for judicial reformation, where its goal is to maintain a just legal system by strengthening the control and supervision of power and authority. This seeks to guarantee the independent exercise of the powers of the judicial and procuratorial organs in a just manner and hence, improve the judicial disclosure system such as trial disclosure, the disclosure of procuratorial, police, and prison affairs. These measures have brought about the right of participation, the right to know, and the right of action by the public, thus gaining better guarantees and making new progress in the respect for and protection of human rights.