The Development of the Chinese Legal System

Change and Challenges

Guanghua Yu

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136872761
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In recent years the Chinese legal system has undergone many reforms and this book brings the literature up to date, offering a contemporary account of the law and administration in China.

This book is the result of collective efforts in analysing the political, economic and social factors which affect the development of Chinese law. The volume contains contributions from a number of experts and scholars of Chinese law who examine some of the most important areas of Chinese law. The book covers constitutional law, criminal law, property law, mortgage law, intellectual property law, corporate law, securities regulation, banking regulation, civil procedural law, arbitration law, environmental law, and the regulation of telecommunications services.

Whilst the book addresses a number of diverse legal areas all the contributions look to explain the factors which led to the development of the law and the consequences of such developments, as well as the progress made by developing legal institutions and the possible obstacles to future development.

Part I
Public law

1
Constitutional judicialization and popular constitutionalism in China

Are we there yet?

Jianfu Chen

1.1. Introduction

I have often been told by Chinese law students that constitutional law is among the most boring subjects in their four-year curriculum. What happened (and in many respects, what did not happen) since the turn of the century seems to have proven the students wrong. Indeed, and until quite recently, the constitutional scene has been both lively and interesting, sometimes with joy and other times with disappointment. However, in all cases, there has been some considerable popular participation and support. Whether encouraged or disappointed, the significance of the various events in the last several years need to be understood in context – political and constitutional.

I have earlier argued that understanding the Chinese Constitution lies in understanding what are not in the Constitution, rather than what are in it. ¹ In light of the development in the last ten years or so, what occurred, what did not occur and what were meant to occur but are yet to be realized, are equally important in understanding and assessing constitutionalism in China today.

The various ‘constitutional events’ since 2001 have been analysed rather extensively, and in many cases, excellently. ² This chapter does not intend to repeat those analyses. Instead, it tries to put these ‘events’ in a contextual perspective and thus sheds some light on their significance (or insignificance) for the development of constitutionalism in China. It will argue that constitutional litigation is not dead in China; ³ it simply has not taken off in the first place, and constitutionalism, however it is understood, remains an illusive goal in contemporary China.

1.2. The missing mechanisms

A constitution, however well-crafted, means little unless it has some practical effect in reality. Constitutionalism, however defined, must ultimately be supported by practical mechanisms for checks and balances of government powers. If a reference to the constitution or the citation of it in court would arouse excitement among scholars and the general population, it indicates more the lack of constitutionalism than its existence. Though references to the constitution may also mean the emergence of constitutionalism, it, nevertheless, means a rather sad reality in that given society. Chinese constitutional law may well fall into this category.

However one wishes to interpret the Chinese constitutional law, the Chinese Constitution, as it stands now, concerns itself more with state organizational structure than with the checks and balances of governmental powers, more with the future direction of the society than the protection of fundamental rights of citizens and more with general principles than with detailed rules capable of implementation. I am, however, not suggesting that we should simply dismiss the Chinese Constitution out of hand. Seen as the ‘mother of all laws’, ⁴ the Chinese Constitution does set parameters for social and legal developments. ⁵ And significantly for the purpose of discussion here, the Constitution does contain something one may call a mini Bill of Rights, ⁶ the provisions of which appear to be compatible with international human rights standards. Through the 2004 constitutional amendment, the protection by the state of human rights is also declared without qualification.

While there is always a gap between the law and reality in all countries, the disparity between the Chinese Constitution on paper and its reality is extraordinary in that few, in or outside China, have taken the Chinese Constitution seriously until very recently. Theoretically, the 1982 Constitution for the first time expressly declares that the Constitution has the supreme authority of law. ⁷ It further declares that the state upholds the uniformity and dignity of the socialist legal system and that no law or administrative or local regulation shall contravene the Constitution. ⁸ There are, however, no mechanisms or procedures established by the Constitution for citizens to challenge the constitutionality or legality of these laws and regulations, nor has the National People’s Congress (NPC) or its Standing Committee (SCNPC) ever invalidated any such laws or regulations publicly. ⁹ Similarly, there neither is any mention of the right of citizens or organizations to challenge the constitutionality of government actions, nor is any mechanism established for the enforcement of a citizen’s constitutional rights. The Constitution vests the power to supervise the enforcement of the Constitution with the NPC and the SCNPC, ¹⁰ but both authorities are legislative organs and, more problematically, there is, once again, no mechanism for either its enforcement or its supervision by these authorities. The SCNPC is further entrusted with the power to interpret the Constitution, ¹¹ yet it rarely does so. ¹² Finally, the Constitution reserves the power of constitutional amendment to the NPC and requires that any amendment must be proposed by the SCNPC or one-fifth of the deputies of the NPC and adopted by a majority vote of more than two-thirds of all deputies. ¹³ However, in reality, all amendments to the Constitution have been proposed by the Party and no suggestion to amend the Constitution proposed by the Party has ever been rejected or even modified by the NPC.

While many scholars insist that the 1982 Constitution is the ‘best’ among the four Constitutions adopted in the PRC, other scholars and officials do recognize the weakness in the present Constitution. As one prominent Chinese scholar concedes

The supervision and enforcement mechanisms are still imperfect. … The power of constitutional supervision has not been sufficiently exercised; constitutional interpretation has yet to be developed; education in the constitution is still being carried out, and special institutions are yet to be established. ¹⁴

Not surprisingly, the question that whether the provisions of the Constitution may be directly enforced in a court of law remains a controversial issue and is yet to be settled. ¹⁵

The various ‘constitutional events’ since 2001, and their significance or insignificance, can only be understood and make sense in the context of this conspicuous absence of practical mechanisms in the Constitution.

1.3. The ‘constitutional events’

1.3.1. An overview

It is not just the intellectuals who have identified the deficiencies in the Constitution; Party and State authorities have also openly acknowledged the need to address the lack of mechanisms for constitutional implementation. Thus, the SCNPC in the mid-1990s decided that one of its major tasks was to strengthen the supervision of legal enforcement, ¹⁶ and some NPC deputies began a call for the making of a law on supervision. ¹⁷ Discussions and debate about various proposals for strengthening constitutional interpretation and supervision, including the establishment of a Constitutional Committee within the NPC, the establishment of a Constitutional Court or the granting of constitutional review powers to the Supreme People’s Court also began in the 1990s. ¹⁸ Amid these talks and discussions on constitutional implementation, attempts were made to run ‘test cases’ by the more right-conscious and reform-minded lawyers.

The Law on Law-Making (Law), adopted in 2001, is the first serious constitutional effort to address the lack of constitutional mechanisms for practical purposes. Not surprisingly, serious talk and discourse on constitutional review mechanisms occurred during the draft of that Law and much of the actions occurred after the adoption of the Law. It would, however, be misleading to suggest that efforts to make the Chinese Constitution a relevant document only occurred after 2001. In fact, the rapid development of law before 2001, especially in the administrative law areas, has the effect of translating some of the general constitutional provisions into detailed practical arrangements, with some having effect on the operation of checks and balances, others on the actual realization and protection of rights and still others filling gaps in the constitution. While, on the whole, the development has been short of aspirations of scholars, the pre-2001 legal development, especially those after 1992, on the relationship between the rule of law and market economy, ¹⁹ had laid the foundation for significant changes in judicial attitudes towards the Constitution, and in forming a short-lived consensus on the need to establish mechanisms for ...

Table of contents

• Contents
• List of charts
• List of tables
• List of contributors
• Preface
• Acknowledgements
• Introduction
• Part I Public law
• Part II Civil law
• Part III Corporate law
• Part IV The regulation of banking and the stock market
• Part V Procedural law
• Part VI Law and regulation with international implications
• Index