China’s Legal System. Editor: Pan Guoping and Ma Limin. The Sinopedia Series Singapore: Cengage Learning, 2011.
Multi-Level Legal Supervision
In China’s legal circles, the phrase, “legal supervision” has two meanings, one in a broad sense and one in a narrow sense. Legal supervision in a narrow sense refers to specific state authorities that carry out supervision based on legislative, judicial, and law enforcement activities in accordance with legal authority and legal procedures. Legal supervision in a broad sense refers to all state authorities, social organizations, and citizens who carry out supervision on the legality of various legal activities.
Legal supervision in its narrow sense includes the following levels: The supervision of state authorities refers to the people’s congresses and their standing committees at all levels, who implement legal supervision on state organs generated through legal procedures. Among these, the NPC and its Standing Committee occupy the dominant position in the whole system of legal supervision.
The legal supervision of administrative authorities refers to legal supervision carried out by the state administrative authorities. It not only includes the legal supervision between the upper and lower levels within the administrative system as well as the national and specialized agencies established by the internal administrative system, but also includes the supervision of administrative counterparts when administrative authorities exercise their administrative rights. The supervision of national administrative authorities can be divided into four categories: general administrative supervision, specialized administrative supervision, administrative reconsideration, and administrative control.
The supervision of the judiciary includes two kinds: the supervision of the procuratorates and the supervision of judicial authorities. These are an important part of China’s supervisory system. According to the regulations of the constitution and relevant laws, as well as current prosecution practice, the supervision of the procuratorate is a specialized kind of supervision, that is the supervision is carried out on the legality of law enforcement and judicial activities of relevant state authorities as well as crime committed by national public staff and other criminal acts. The function of legal supervision of the procuratorate is closely linked to litigation activities, and it can be further divided into three categories: criminal litigation supervision, civil litigation supervision, and administrative litigation supervision.
The supervision of judicial authorities refers to the supervision of the people’s courts. In China, the people’s courts are specialized agencies that exercise national jurisdiction; they have an important position in the whole legal supervision system. The supervision of the people’s court is divided into the following types: supervision within the people’s court system, and supervision of the people’s court on administrative authorities, among others.
The supervision of the CPC is a very important form of legal supervision. The CPC is the ruling party and holds the leadership position in the nation. It plays a very important role in monitoring the implementation of the constitution and laws, safeguarding the national unity of the legal system, overseeing the implementation of guidelines and policies of the party and state, ensuring the execution of government decrees, supervising all cadres, but particularly, leading cadres at all levels, and preventing the abuse of power, among other aspects.
Legal supervision in the broad sense also includes social organizations and citizens who carry out supervision on the legality of various legal activities.
The supervision of social organizations mainly refers to the supervision carried out on democratic parties, the CPPCC, and social groups. For a long time, China’s democratic parties and the CPPCC actively carried out legal supervision in various forms and in a variety of ways, thus becoming an important social force in legal supervision. In practice, it also playing an active and effective role. The supervision of social groups mainly refers to the legal supervision carried out by trade unions, youth leagues, women’s federations, urban neighborhood committees, village committees in rural areas, consumer protection associations, environmental groups, and other social organizations that play important roles in their areas.
Supervision of citizens refers to the legal supervision carried out directly by a citizen. The objects of supervision include all state authorities and their staff, political parties, social groups, social organizations, and the mass media, among other bodies. The right of legal supervision of citizens is the essential form of expression and component of state power accorded to Chinese citizens.
In the legal supervision of citizens, the supervision of legal occupations deserves special mention, particularly the supervision of the special group of lawyers and jurists. The members of this group possess legal expertise and have a special and important role in the legal supervision system.
A recent example occurred in December 2009, when five scholars from the School of Law at Peking University submitted a Proposal for the Review of the Regulations on the Dismantlement of Urban Houses to the NPC Standing Committee. These scholars believed that this regulation promulgated in 2001 conflicted with the principles and specific provisions relating to the protection of citizens’ housing and other real estate in the constitution, the Property Rights Law, and the Law on the Administration of Urban Real Estate. They recommended that the legislature should review the regulation, and thereafter revoke or revise it. This proposal attracted the attention of the national legislature and China’s legislature is currently preparing a new regulation to replace the disputed Regulations on the Dismantlement of Urban Houses.
In recent years, China has continuously deepened its judicial reform, where one important element was to strengthen the supervision of judicial power, constantly improve the transparency of the trial system, procuratorial work, police work, prison services, and other judicial systems, so that the right of participation, the right to know, and the right of action of the public have better protection. This will go a long way in helping to resolve a number of outstanding problems affecting the meting out of justice.
Continuous Development and Improvement of Legal Services
Legal services are an important aspect in China’s modern legal system and have a heavy influence on people’s social lives. For legal services, people will first think of lawyers. In China, the legal practice system and the legal services profession have gone through a relatively tough path of development.
When the People’s Republic of China was founded in 1949, lawyers were included in the scope of the country’s public positions. By the end of 1957, 19 provinces, municipalities, and autonomous regions in China had established lawyers associations or a preparatory committee, set up 820 legal counsel offices, and boasted 572 full-time lawyers and 350 part-time lawyers. In the turbulent era thereafter, Chinese rule of law encountered a setback and this was no exception in the case of lawyers.
In 1979, China resumed the legal practice system. At that time, there were only 79 law firms and 212 lawyers. Since then, the Chinese legal profession has experienced rapid development with China’s reform and opening up. In 1986, the All China Lawyers Association was formally established. In the same year, the Bar Examination was implemented. In May 1996, the Legal Practice Law was formally promulgated, and Chinese lawyers and law firms entered a period of professional, large-scale development. Since 2002, China has held a national standardized judicial examination, promoting professional training for judges, procurators, lawyers, and notaries. When the strengthening of the protection of human rights and the building up of the country as ruled by law become important social objectives, China’s legal services profession developed and improved along with these trends.
In the past 30 years, the development of China’s legal services profession has been amazing in terms of its specialization, standardization, and market-oriented paths. An increasingly stronger demand is required for the qualifications and professional knowledge of legal practitioners. At the institutional level, occupational access, practice licensing, market supervision, discipline, and other areas have been standardized. The legal services sector has gradually transformed itself from state organs to the social services sector and its personnel management and operating mechanism have gradually realized marketization. Chinese law firms can be funded solely by the state or also set up by partnerships or individuals.
According to official statistics, by the end of 2008, China had 156,710 lawyers and 14,467 law firms nationwide. In 2008 alone, lawyers conducted 1,967,784 various types of litigation and proxy cases, they were engaged in 534,643 non-litigation matters, and also took up 184,739 cases of legal aid. China’s legal services profession has become an important force indispensable to national socio-economic development. In 2008, after 10 years of controversy, the newly revised Legal Practice Law was promulgated, taking into account the problems in practice, especially those that are difficult to detect or resolve, difficult to investigate, difficult to collect evidence and any other difficult issues. The revised law expanded the rights of lawyers and strengthened the protection of the rights of lawyers, allowing them to better protect the legal rights of litigants.
Notarization agencies and notaries are another important component of China’s legal services. Under the provision of the Notarization Law, a notary must pass the national judicial exam so as to be qualified. According to the application of parties, notarization agencies can prove acts of civil law, as well as the authenticity and legality of facts and documents with legal significance. Since the 1970s, China’s notarization industry has seen significant development and there are now more than 3,000 notarization agencies and about 13,000 notaries nationwide.
In recent years, the number of certificates issued by notarization agencies in the whole country has reached about 10 million every year, of which more than 3 million are foreign-related notarizations sent to more than 100 countries and regions. The Chinese people have become more familiar with the profession of notary services and many people already know how to ask a notarization agency to handle testaments, inheritance papers, pre-marital property, and other notary issues. From previously being completely unknown to Chinese people, notaries and notarization agencies are now household words.
Before 2000, China had only a few examples of notarization for preserving evidence. In recent years, as the awareness of people seeking legal services has been broadened, these types of services have gradually increased in volume. Once, a notary in Beijing went shopping at his local supermarket and he saw a young man arguing heatedly with a salesman. The young man claimed that the product he bought did not work. He then made a notary on that product at a notarization agency, sealed it up, and then sent it to the quality inspection department for review. Now, more and more people will require the help of evidence preservation services in terms of software infringement, Internet infringement, and other types of infringements. Evidently, the scope of notary services has become very wide. For example, during the Beijing Olympic Games, the basketball used during the match between the United States Dream Team and the Chinese team was immediately sealed up after the game, and this process was completed under the supervision of a notary.
Of course, the historical development of the Chinese legal services is still relatively short and many systems are still not mature enough. More aspects have yet to be further developed and improved. For example, the distribution of the lawyer profession is now very uneven, with the numbers of lawyers in Beijing, Shanghai, Guangdong, and other developed areas exceeding 10,000, while the total number of lawyers for 12 western provinces and autonomous regions is less than 20,000. Even worse, some counties do not even have a single lawyer. At the same time, some lawyers are unable to retain clients and have no guaranteed income. This is clearly seen in the Chinese people’s career preferences, as those who aspire to become judges far exceeds those who are content to practice as lawyers.
Corresponding to the marketization of legal services, China established a legal aid system in order to solve the problem of some parties being unable to engage legal services through the market. In recent years, China has increased her judicial assistance and legal aid efforts, so that the problems of difficulties in litigation and implementation are effectively alleviated. The newly enacted Regulations on Means of Payment for Lawsuit Expenses reduced, on average, 60% of the total litigation costs. The newly implemented Administrative Measure on Legal Fees stipulates strict procedures for legal fees and severely punishes the illegal collection of fees. In Fengtai District, Beijing, there is a legal aid station for migrant workers. Since its creation in September 2005, it has provided legal aid to more than 5,000 migrant workers, counseled more than 17,000 cases, and has benefited about 90,000 migrant workers.
China has actively developed legal aid projects and in addition to the above legal aid system, she has also expanded legal services through the recruitment of volunteers and other means. 2009 was the first year of the operation of “1+1” China Legal Aid Volunteer Initiative. This initiative was created through the help of professional legal practitioners and recruited volunteers. Lawyers and graduates of law schools were mobilized to visit counties that had no practicing lawyers and parts of western and central China that lacked legal practitioners, to provide legal aid voluntary services. A total of 30 lawyers and 70 law students became the first batch of volunteers. They went to 70 counties and 13 provinces, autonomous regions, and municipalities to offer their legal expertise and advice.
For Your Information: The “1 +1” China Legal Aid Volunteer Initiative
The “1+1” China Legal Aid Volunteer Initiative is a legal aid activity borne out of love and dedication, that was sponsored by the Ministry of Justice and the Central Committee of the Communist Youth League (CYL). It is jointly organized and carried out across the country by the China Legal Aid Foundation together with the Youth Volunteer Office of the CYL Central Committee, Lawyer Notary Guide Department of the Ministry of Justice, the Legal Aid Office of the Ministry of Justice, the Legal Aid Center of the Ministry of Justice, and the All China Lawyers Association. This initiative is designed to provide counties in western China that have a serious lack of or no legal practitioners with trained lawyers and graduates of law schools. These volunteers carry out legal aid activities and provide legal advice in order to meet the legal needs of the people so as to maintain social fairness and justice.
China’s legal services profession has made considerable achievements and it can be said that the specialized, standardized, and market-oriented legal services profession has been established.