Legal Culture in China
Understanding Legal Culture in China: A Practical Overview
The legal culture in China has undergone significant transformations in recent decades, shaping the country’s approach to justice, governance, and social order. As China’s global influence grows, understanding its legal system becomes crucial for international relations, business dealings, and cross-cultural exchanges. The Chinese legal system, rooted in a unique blend of traditional values and modern principles, presents a complex landscape that merits careful examination.
This comprehensive overview delves into the key aspects of China’s legal culture, exploring its historical foundations and contemporary realities. It examines the constitutional framework that underpins the Chinese legal system, the workings of civil and criminal justice, and the role of the Communist Party in shaping legal norms. The article also sheds light on legal education and professional development in China, as well as the ongoing challenges in implementing the rule of law. By providing insights into these crucial areas, this exploration aims to foster a deeper understanding of the intricate tapestry that makes up China’s legal culture.
Historical Evolution of Chinese Legal Thought
Legalism vs. Confucianism
Two major schools of thought significantly influenced Chinese legal philosophy: Legalism and Confucianism.
Legalism, gaining popularity during the Warring States period (453-221 BCE), advocated for a system of clear and strict laws to harness subjects’ energy. Legalists, such as Lord Shang Yang and Han Fei Tzu, believed human nature was inherently evil and required control through state power. They promoted the idea of “weakening the people” to maintain societal stability.
In contrast, Confucianism emphasized moral persuasion and the concept of li (propriety), a set of accepted social norms enforced by society rather than courts. Confucians believed in the fundamental goodness of human nature and stressed the importance of cultivating inner virtue (de) and demonstrating filial piety (xiao).
The Qin dynasty (221-206 BCE) initially favored Legalism, implementing harsh, uniform laws. However, the subsequent Han dynasty (206 BCE-220 CE) blended elements of both philosophies, a process known as the “Confucianization of law”. This amalgamation reached its pinnacle in the Tang Code of 624 AD, renowned for its precision and clarity.
Modern Legal Reforms
China’s modern legal reforms began in earnest with the Reform and Opening platform adopted by the Chinese Communist Party in 1978. This initiative aimed at “democratic institutionalization and legalization,” marking the start of establishing a modern legal system.
Since then, China has undergone rapid legal development, adopting numerous laws and regulations, often on a “provisional” or “trial implementation” basis. This approach allows for experimentation and incremental changes, mirroring China’s economic reform model.
Significant milestones include the 1982 Constitution, which has been amended four times. In 1999, the National People’s Congress added the principle that China exercises the rule of law, and in 2004, it included provisions to respect and preserve human rights and protect private property.
Recent reforms have focused on achieving greater social fairness and justice, recognizing that the legitimacy of one-party rule depends not only on economic growth but also on ensuring fair treatment of citizens and creating a “harmonious society”.
Constitutional Framework of the Chinese Legal System
The constitutional framework of China’s legal system is rooted in the 1982 State Constitution, which serves as the foundation for the country’s governance and legal structure. This framework has evolved significantly since the early 20th century, reflecting China’s journey towards modernization and the establishment of a socialist state under the rule of law.
Basic Principles of the Constitution
The 1982 Constitution emphasizes the principle of law-based governance, stating that China shall practice law-based governance and build a socialist state under the rule of law. It affirms the unity and sanctity of the socialist legal system, prohibiting any laws, administrative regulations, or local regulations from conflicting with the Constitution.
A fundamental tenet of the Constitution is that all power in the People’s Republic of China belongs to the people. This principle is put into practice through the National People’s Congress (NPC) and local people’s congresses at various levels, which serve as the organs through which people exercise state power.
The Constitution also establishes the principle of democratic centralism for state institutions. This means that while the NPC and local people’s congresses are created through democratic elections, they are also responsible to the people and subject to their oversight.
State Organs and Their Functions
The NPC, defined as “the highest organ of state power” in the 1982 Constitution, plays a crucial role in China’s constitutional framework. Its major functions include amending the state constitution, enacting laws, supervising the enforcement of the constitution and laws, and electing or appointing key government officials.
The State Council, also known as the Central People’s Government, serves as the executive body of the supreme organ of state power and the supreme organ of state administration. Led by the Premier, the State Council has extensive powers, including adopting administrative measures, enacting administrative regulations, and directing various aspects of national governance.
The state Central Military Commission, established by the 1982 Constitution, is responsible for directing the armed forces. It oversees key military personnel appointments, manages PLA financial and material resources, and develops regulations for the military.
The judicial system, as outlined in the 1982 Constitution and the Organic Law of the People’s Courts, consists of a four-level court system. The Supreme People’s Court sits at the apex of this system, supervising the administration of justice by all subordinate courts.
Rights and Duties of Citizens
The Constitution guarantees a wide range of rights to Chinese citizens while also outlining their duties. It emphasizes equality before the law and the state’s responsibility to respect and protect human rights.
Key rights include the freedom of speech, press, assembly, association, procession, and demonstration. The Constitution also protects freedom of religious belief, personal freedom, and the inviolability of citizens’ homes and correspondence.
In terms of social and economic rights, the Constitution guarantees citizens the right to work, rest, material assistance in old age or illness, and education. It also emphasizes gender equality, stating that women shall enjoy equal rights with men in all spheres of life.
However, these rights come with corresponding duties. Citizens are obligated to safeguard national unity, abide by the Constitution and laws, protect public property, and observe social morality. They also have the duty to defend the motherland, perform military service, and pay taxes in accordance with the law.
Civil and Criminal Justice in China
The Chinese legal system is characterized as a socialist legal system with uniquely Chinese characteristics, distinguishing it from common law and civil law systems. This system operates under the leadership of the Communist Party of China, as stated in the Constitution, which serves as the supreme law of the land.
Civil Law System Characteristics
China’s civil law system emphasizes the role of written laws and regulations. The National People’s Congress (NPC) and its Standing Committee (NPCSC) have the power to enact laws, while the State Council issues administrative regulations. Local People’s Congresses can issue laws applicable to their jurisdictions, provided they comply with the national Constitution and laws.
One unique aspect of the Chinese system is that the power to interpret laws is vested in the NPCSC, not the judiciary. These interpretations have the same effect as the laws themselves, highlighting the legislative branch’s significant role in shaping legal understanding and application.
Criminal Procedure and Rights of the Accused
The Chinese criminal justice system has undergone significant reforms in recent years to enhance fairness and protect the rights of the accused. However, it still differs considerably from Western systems in several aspects.
- Detention and Arrest: The police can detain suspects for up to 37 days before the prosecutor approves the arrest. After an official arrest, the law allows for an investigation and prosecution review period of up to 13.5 months before formal charges must be laid.
- Right to Legal Representation: Suspects have the right to hire a practicing lawyer from the date of their first interrogation or when subject to compulsory measures. However, there are exceptions where access to a lawyer may be denied with permission from the investigating authority.
- Right to Remain Silent: Unlike in some Western countries, Chinese law does not allow for “the right to remain silent”.
- Trial Process: A criminal trial typically consists of five parts: court-opening session, court investigation, court debate, final statement(s) of defendant(s), and judgment pronouncement.
- Appeal Process: Defendants have the right to file an appeal within ten days from the day following receipt of the judgment.
Alternative Dispute Resolution Mechanisms
China has been actively promoting alternative dispute resolution (ADR) methods to complement its court system and improve access to justice. The three primary dispute resolution systems in China are:
- Litigation: This is the traditional court-based process handled by Chinese courts. The litigation process in China is generally inquisitorial, with judges taking dominant roles in the trial and actively involved in fact-finding.
- Arbitration: This is a private process where disputing parties agree that one or several individuals can make a binding decision about the dispute. Arbitration awards are comparatively easier to implement outside of China due to the country’s participation in the New York Convention.
- Mediation: This is a voluntary, confidential, and private dispute resolution process where a neutral mediator helps parties reach their own negotiated settlement agreement.
In recent years, China has been exploring online dispute resolution, particularly in response to the COVID-19 pandemic. The Ministry of Justice and the Supreme People’s Court have encouraged courts and arbitration tribunals to enhance their capabilities for conducting litigation or arbitration online.
These developments in civil and criminal justice reflect China’s ongoing efforts to modernize its legal system while maintaining its unique characteristics and socialist principles.
Role of the Communist Party in the Legal System
The Chinese Communist Party (CCP) has maintained a political monopoly since the founding of the People’s Republic of China in 1949, overseeing the country’s rapid economic growth and rise as a global power. The party’s role in the legal system has evolved over time, with recent years seeing a significant shift in its approach to law and governance.
Party Leadership in Legal Affairs
Under the leadership of General Secretary Xi Jinping, the CCP has been asserting comprehensive control over all aspects of Chinese society, including the legal system. This marks a departure from the previous approach, where the party maintained a technical separation between itself and the state apparatus. Xi’s push to codify party leadership into law and explicitly establish the party’s command of “socialist rule of law with Chinese characteristics” suggests an appreciation for the legitimating power of law.
The party has made “governing the country in accordance with law,” or “law-based governance” (依法治国), a cornerstone of its governance strategy.. This approach, along with Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, forms the ideological basis for the party’s role in the legal system.
Relationship Between Party and State Laws
While the CCP demands “absolute” leadership in political-legal work, it continues to delegate day-to-day responsibilities to state legal institutions. These institutions are expected to address and resolve complex matters professionally, efficiently, fairly, and autonomously to maintain social stability and promote economic development.
However, the party-state often bypasses state legal requirements or adopts illiberal ones when dealing with sensitive matters. This has resulted in a dual state and legal system, where most Chinese citizens enjoy the protection of an increasingly sophisticated body of law and legal institutions, while those deemed a threat to the party-state are handled outside the law.
Anti-Corruption Campaigns and Legal Reforms
A significant aspect of the CCP’s involvement in the legal system is its anti-corruption campaign, launched in 2012 under Xi Jinping’s leadership. This campaign, the largest organized anti-corruption effort in CCP history, has targeted both high-level officials (“tigers”) and local civil servants (“flies”). As of 2023, approximately 2.3 million government officials have been prosecuted.
The Central Commission for Discipline Inspection (CCDI) has been the primary agency overseeing this campaign. While the CCDI is nominally an independent agency, in practice, ultimate oversight falls under Xi Jinping’s purview as General Secretary.
Recent constitutional changes have proposed the creation of a new anti-graft state agency, the National Supervisory Commission, which would merge the CCDI with various anti-corruption government departments.This new body would be the highest supervisory organ in the country, outranking courts and the office of the prosecutor.
These developments highlight the CCP’s ongoing efforts to institutionalize its leadership role in the legal system while simultaneously pursuing legal reforms and anti-corruption measures. The party’s approach to law and governance continues to evolve, balancing the need for legal legitimacy with its desire to maintain control over all aspects of Chinese society.
Legal Education and Professional Development
Legal education and professional development in China have undergone significant transformations in recent years, reflecting the country’s commitment to modernizing its legal system and nurturing a skilled legal workforce.
Law School Programs and Curriculum
Chinese law schools offer comprehensive programs designed to equip students with a solid understanding of the law and practical skills. The Bachelor of Law (LLB) degree, typically spanning four years, serves as the foundation for aspiring legal professionals. Some institutions, such as the University of Washington School of Law, offer specialized Master of Jurisprudence (M.J.) programs tailored for Chinese professionals. These programs focus on integrating law with other fields, such as healthcare, business, and technology, preparing students to address challenges in a constantly changing global environment.
The curriculum in Chinese law schools is structured to provide a balance between theoretical knowledge and practical application. For instance, the Juris Master (LL.M.) Program at Tsinghua University requires a minimum of 25 credits of course studies and a dissertation. Students must complete approximately ten courses and a research paper within two semesters to earn their degree. The program offers a mix of compulsory and elective courses, with most foundational courses offered in the fall semester and specialized electives in the spring.
Legal Professional Qualifications
To become a lawyer in China, individuals must pass the National Bar Examination, a comprehensive assessment of their understanding and application of Chinese law. This examination is a crucial step in obtaining the legal profession qualification certificate, which is mandatory for those seeking to practice law.
The legal professional qualification examination is divided into two parts: an objective test and a subjective test. The objective test covers a wide range of subjects, including socialist legal theory with Chinese characteristics, jurisprudence, constitutional law, criminal law, civil law, and international law. The subjective examination assesses candidates’ ability to analyze cases, draft legal documents, and write essays on legal topics.
Continuing Education and Specialization
Continuing Legal Education (CLE) plays a vital role in the professional development of Chinese lawyers. The Law Society of Hong Kong, for example, requires all trainees to undertake Continuing Professional Development (CPD) in each year of training. Many institutions, such as the Faculty of Law at the University of Hong Kong, offer accredited CLE programs tailored to meet these requirements.
These programs often include short courses, workshops, lectures, seminars, and conferences presented by faculty staff or guest speakers from Hong Kong and overseas. These opportunities allow legal professionals to stay current with the latest developments in their field and acquire necessary CPD points.
In conclusion, legal education and professional development in China emphasize a comprehensive approach, combining theoretical knowledge with practical skills. From structured law school programs to rigorous qualification examinations and ongoing professional development, the Chinese legal system is committed to producing competent and adaptable legal professionals capable of meeting the challenges of a rapidly evolving legal landscape.
Challenges in Implementing Rule of Law
Judicial Independence and Accountability
China’s judiciary faces significant challenges in achieving true independence. Despite recent reforms, courts remain subject to various internal and external controls that limit their ability to make independent decisions. Within the judiciary, court adjudicative committees led by court presidents still have the power to review and approve decisions in complex or sensitive cases, limiting the autonomy of individual judges and judicial panels.
External interference, particularly from local governments, poses a major challenge. Local authorities often intervene in judicial decisions to protect local industries, shield themselves from liability in administrative lawsuits, or favor local litigants. Their influence stems from control over judicial salaries, court finances, and appointments.
The Communist Party also exerts considerable influence on the courts. Party groups within the judiciary enforce Party discipline, and the Party approves judicial appointments and personnel decisions. Judges, aware of these control mechanisms, often align their decisions with Party policy. In sensitive cases, the Party exercises direct influence through Political-Legal Committees at various government levels.
Enforcement of Court Decisions
Enforcing court decisions remains a significant challenge in China’s legal system. The country lacks a comprehensive framework for enforcing judgments, particularly those from foreign jurisdictions. While China has been gradually building its legal framework to enforce foreign judgments, including those from the United States, the process is still evolving.
The enforcement of foreign judgments in China is primarily governed by the Civil Procedure Law (CPL). In the absence of international conventions or bilateral treaties, Chinese courts rely on the principle of reciprocity to enforce foreign judgments. However, the interpretation of this principle has been inconsistent, leading to difficulties in enforcing foreign judgments, including those from the U.S.
Recent developments, such as the 2023 Amendments to the CPL, have introduced new guidelines for enforcing foreign judgments. These changes may enhance the possibility of getting foreign judgments enforced in China, but challenges remain, including the need to meet specific criteria and miscellaneous requirements.
Public Trust in the Legal System
Building public trust in the legal system is crucial for implementing the rule of law effectively. Recent surveys indicate that a majority of Chinese citizens view the law as important for the country, with over 94% considering it “extremely important” (72.5%) or “important” (21.8%). This high regard for the law suggests a foundation for building trust in the legal system.
However, public perception of the legal system’s development lags behind economic growth. More than half of the respondents (52.8%) viewed the development of the law and legal system as lagging behind economic growth. This perception gap highlights the need for continued efforts to strengthen and modernize the legal system.
Interestingly, those with direct experience of the legal system, including legal professionals and individuals involved in legal proceedings, tend to have a more nuanced view. They are less likely to consider different aspects of the legal system as distinct and are more supportive of a stringent system of applying or referring to cases. This suggests that increased exposure to the legal system may lead to a more realistic understanding of its strengths and limitations.
Conclusion
To wrap up, China’s legal culture presents a complex tapestry woven from ancient traditions and modern reforms. The ongoing evolution of the Chinese legal system reflects the country’s efforts to balance its socialist principles with the demands of a rapidly changing global landscape. While challenges persist in implementing the rule of law, recent developments in legal education, professional qualifications, and anti-corruption measures signal a commitment to enhancing the legal framework.
The journey towards a more robust and transparent legal system in China continues, with implications that reach far beyond its borders. As the country navigates the intricacies of modernizing its legal culture, it faces the task of building public trust and ensuring effective enforcement of court decisions. For any of your concerns on Chinese legal culture, please don’t hesitate to contact us. Understanding these dynamics is crucial for anyone looking to engage with China in the legal, business, or diplomatic spheres.
FAQs
What defines the traditional legal culture of China?
The essence of traditional Chinese legal culture is characterized by humanism, moral enlightenment, prudent punishment, adherence to natural laws, the rule of law, and a preference for avoiding litigation through alternative dispute resolution methods.
How is the legal system structured in China?
China operates under a civil law system, which is uniquely shaped by its historical and political backdrop. The judiciary in China is under the control of the executive branch and does not function as an independent entity.
Can you describe the legal framework of China?
The legal framework in China is structured around the Constitution, which sets forth the civil responsibilities and expectations of its citizens. It comprises three primary levels of law: state laws, local statutes, and administrative regulations, each governing different aspects of legal enforcement and administration.
What is the order of precedence among Chinese legal norms?
In China, legal norms are organized into a hierarchy of effectiveness: at the top is the Constitution, followed by general laws, then administrative regulations, judicial interpretations, and military regulations. The lowest tier includes local laws and departmental regulations.