Inside China's Legal System

Chang Wang, Nathan Madson

• Publisher: Chandos Publishing
• Year: 2013
• ISBN:
  9780857094612
• Topic: Law
• Subtopic: Public Law
• Index: Law

China's legal system is vast and complex, and robust scholarship on the subject is difficult to obtain. Inside China's Legal System provides readers with a comprehensive look at the system including how it works in practice, theoretical and historical underpinnings, and how it might evolve. The first section of the book explains the Communist Party's utilitarian approach to law: rule by law. The second section discusses Confucian and Legalist views on morality, law and punishment, and the influence such traditional Chinese thinking has on contemporary Chinese law. The third section focuses on the roles of key players (including judges, prosecutors, lawyers, and legal academics) in the Chinese legal system. The fourth section offers Chinese legal case studies in civil, criminal, administrative, and international law. The book concludes with a comparison of China's fundamental governing and legal principles with those of the United States, in such areas as checks and balances, separation of powers, and due process.

• Uses extensive legal materials and historical documents generally unavailable to Western based academics
• Gives insider knowledge, including first-hand experience teaching law, and close involvement with judges, attorneys, and law professors in China
• Analyses legal issues from historical and cultural perspectives holistically

Foreword 1

Justice Paul H. Anderson, Minnesota Supreme Court, USA

Most of us who have the privilege to work within the American constitutional system are very proud of this form of government and willing to talk about it. We frequently become strong advocates for our form of government when visiting with persons from other countries, especially countries with emerging democracies. But we have to be careful not to forget that countries developing their own systems of government, particularly judicial systems, have their own history and culture and thus will develop in several different ways. Most of these countries must, in their own particular way, seek to establish and maintain a system that guarantees the existence of the rule of law. Those of us who serve in government positions in the United States genuinely want to help other countries achieve their goals, but we must be willing to grant those countries sufficient room to do it in a way that works for them.

Those of us from the United States who engage in these efforts should explain why and how our system of government has worked well for us. We should emphasize the fact that there are several important fundamental principles that provide the foundation of our system. These principles include a commitment to the rule of law, a constitution approved by the people, separation of powers, judicial independence and the concept of judicial review of governmental acts that may violate individual rights or a constitutional mandate. But it is a grave mistake for us to overstate our case and claim that our system will work well everywhere. Such an approach can have the same effect as pounding a square wooden peg into a round hole: it does not work well and results in many splinters. We need to explain our form of government but provide enough latitude so our listeners have an opportunity not only to learn about our system but also to evaluate it to see what may work well for their own country. Then we must encourage them to take our best, leave the rest, and employ the best in their own country.

A good starting point for a conversation about our American democracy with representatives from another country is a discussion about the history, culture, government and especially the legal system of their country. This approach may appear to be simple and obvious, but it is often overlooked and even ignored. But its importance to a person's credibility can never be overestimated. Making this initial effort shows respect for your listener. Make an effort to know something about each country and its people. Doing so will lead to a more meaningful sharing of perspectives and ideas about each other's countries. It will also provide a great antidote to mistaken assumptions and diplomatic blunders.

An understanding and appreciation of the importance of our own history when discussing different legal systems should not be underestimated. I readily concede that I have a strong bias in favor of this approach, given that I am a history buff who values a historical perspective. It is difficult to talk to representatives from other countries about their need to establish the rule of law, create an independent judiciary, improve human rights or get more women lawyers and judges without acknowledging our own history. On this latter point, my own experience is informative.

When I was a law student at the University of Minnesota Law School in the late 1960s, we only had one female judge in Minnesota and very few women lawyers. In my class of over 200, there were only four women. When I visit with my female classmates today, they remind me how difficult it was for them to attend law school at that time. It was not unusual for professors to chastise women students on the grounds that they had no business being there, they were there only to get a husband and in the process they were taking the place of a male student who needed to attend law school so he could get a good job as a lawyer and feed his family. In many ways, I was oblivious to the travails of my female colleagues. It took many years to heighten my awareness as to the value that my female peers could bring and have brought to our system of government. While my female colleagues from those days assure me that I always treated them with respect, I am often amazed at how oblivious I was to how different their experience was from mine. We have come a long way in a short period of time, but we cannot forget our past, and we need to share that past with others.

One point I wish to make by using the foregoing example is that, as advocates for our system of government, we must acknowledge that our system is still evolving and much of this evolution is recent. We must understand, appreciate and discuss this recent history. We need to appreciate the fact that a key ingredient in our system is our ability to reinvent ourselves periodically. Then we can explain, in a credible manner, how our system of government has flourished because of the presence of women judges and persons of color. Always make it an objective to explain to others that for the rule of law to flourish, a government must have the ability to incorporate change peacefully so that the government can better reflect the citizens it serves.

I have on two occasions been invited by a branch of the Chinese government to lecture in China on issues such as American federalism, the rule of law and the importance of judicial independence. On my first trip I had a 12-day window for travel and lecturing. I was able to present eight lectures at five of the top ten law schools, a police academy, a training school for judges and an undergraduate university. I also participated in 16 meetings with justices of the supreme courts in Beijing, Shanghai and Hangzhou, law school deans, police academy presidents, police officers and several members of the legal community. It was an extraordinarily interesting and challenging educational and cultural experience, and all the more interesting because I was in China shortly after the major earthquake in Sichuan province.

There were times during my visit when I thought that I might be in over my head. I was worried the Chinese would discover that at heart I was just a farm kid from Minnesota who did not have much to offer. But my fears did not turn out to be justified. I discovered that as a product of our American democracy who has had the privilege to serve in high public office, I had much to share. That said, I must caution everyone not to trust anyone – including me – who pretends to tell you the truth about China. It is very difficult, if not impossible, to know such truth. The most anyone who is a student or keen observer of China can do is to share facts, information and personal insights, observations and perspectives about this country that has recently become an economic powerhouse.

When talking about China, I generally begin my discussions by comparing our two governments. In the United States we have a separation of powers which provides a system of checks and balances. China has central party rule with central authority, and there are very few, if any, checks and balances. In the United States we have an independent judiciary. An independent judiciary does not exist, nor is it presently desired, in China. In the United States we have existed under the concept of the rule of law for over two centuries. China puts a premium on the concept of rule by law. Many Chinese are very proud of their system of rule by law. But do not be mistaken: there is a huge difference between the rule of law and rule by law.

In the United States we have free speech guaranteed by the First Amendment to our constitution. In China the press and media are essentially the mouth and tongue of the Communist Party. There are severe restrictions on the free communication of ideas: I need go no further than note the compromises on internet accessibility and information that China demands of companies such as Google. In the United States we have the right to access public documents. In China access to information is deemed a privilege, not a right. Easy access to information is critically important to a form of government that is controlled by the people. This free flow of information allows us to hold our public officials accountable and correct our mistakes. Early twentieth-century journalist William Allen White said it well:

You can have neither wise laws nor free enforcement of wise laws unless there is free expression of the wisdom of the people – and alas, their folly with it. But if there is freedom, folly will die of its own poison, and wisdom will survive.

In the United States we have open access to court records. In China, party government and the courts operate in secrecy. We have, for the most part, an open and transparent system of government. In China everything is run by the party from the top down, and mostly in secret. Any valid organizational chart of the Chinese government will show a direct line that invariably runs from the courts to a political and judicial committee of the Communist Party. This structure means that the courts in China are subordinate to the party – the party controls the courts through its political and judicial committee. Thus the judiciary is not free from the party's political influence. There is a saying in China that the most important cases are decided by politics; medium-sized cases are decided by money and influence; and only the smallest cases are decided under the law, if they get decided at all. This is a system governed under rule by law, not the rule of law.

Nevertheless, when I was invited to China to talk about our American democratic society, I was given free rein to describe our form of government and make whatever comparisons with China's government that I chose. So the question becomes: why was I given this broad latitude to speak? I believe it can be explained by acknowledging that some real change is occurring in China. I saw some of this change up close when I observed a more open attitude by the government when it dealt with events following the 2008 earthquake in Sichuan province. But the real questions remain: how much change will there be, and how soon?

Based upon my admittedly limited knowledge about China, I would conclude that most of the current reforms in China have their roots in the changes in Chinese culture that occurred between 1980 and 1989 – the decade leading up to Tiananmen Square. The 1989 Tiananmen Square protest is obviously a seminal event in China's modern history, not unlike 11 September 2001 is for the United States. Following Tiananmen Square, there was an increased level of government-sponsored suppression of certain activities in Chinese society – the activities that had been moving China in the direction of being a more open society. This suppression led to a more nationalistic attitude and further restrictions on Chinese society.

But again change appears to be in the wind. In the last few years Chinese leaders seem to be more willing to acknowledge the fact that, if China is going to move forward as a leader in the international economy and play its rightful role as a world power, it must move beyond its post-Tiananmen Square attitudes. The big question is how it will do it and how fast. I believe China's leaders are exploring their alternatives. There is a legitimate internal inquiry going on – it may even be an internal quandary. In the end, I believe that this legitimate interest in making some change is why I have twice been invited to lecture in China. I believe there is a genuine interest in what we Americans may be able to contribute to this process of change, particularly in the area of our perspectives on the law.

My colleague in Minnesota's judiciary, Judge Kevin Burke, is correct when he notes that economic forces are driving change in China. China's leaders know their country is a world economic power and acknowledge that, at least in the economic sphere, China needs some semblance of the rule of law if it is going to thrive. But the leadership in China is justifiably worried about the implications of such change, even if the change is controlled and modest. Students of Chinese history and culture who are aware of the multifaceted nature of the Chinese character know that these concerns are not unfounded. Those in power, if they want to retain it, have reason to be concerned about what may happen once the rule-of-law genie gets out of the bottle. Even modest reforms can, once put in place, lead to dramatic changes that bring with them some unforeseen collateral consequences. If and when the rule-of-law genie does get out of the bottle – even if it is initially limited to the economic sphere – it could easily become uncontrollable for the current leadership in China. The rule of law may spread to other areas of society such as political freedom and human rights, a spread that can threaten the established power structure.

As I noted earlier, there is a real hunger in China for Western ideas, especially American ideas. The Chinese are legitimately interested in any substantive ideas we are willing to share with them. In part, this interest stems from an appreciation of what we have achieved as a society. Nevertheless, the Chinese are concerned about what change may bring. Thus they are proceeding carefully, with deliberation, and in ways that are often difficult for us to understand. It is also apparent that whatever changes they will make, they intend to make them on their own terms.

Most of us in the United States know that during the twenty-first century we face significant competition from China. But I left China believing that the United States and other Western countries have something special that gives us an advantage in this competition – our freedom. Despite all the energy, intellectual engagement and overwhelming manpower that I saw in China, I believe the United States can not only survive but thrive in the face of this economic challenge. The reason is that the current government structure in China still requires most of the people to confine their thinking to specific and often isolated thought silos. Thinking in China still tends to remain under restraint; it is intentionally confined by government policies. The Chinese people do not have the intellectual freedom and exchange that we enjoy. If we in the United States maintain our freedom and traditional ability to think outside the envelope and be innovative, we will do fine. Again, as noted earlier, because of the freedoms we enjoy we have the ability to reinvent ourselves periodically in order to meet changing circumstances. It is an advantage we must work to preserve.

There is another significant advantage that freedom of expression not only allows, but promotes. Here I refer to what Mark Twain once termed a 'discriminating irreverence'. This discriminating irreverence strengthens our society because it is one of the ways we hold our leaders accountable. It most frequently manifests itself through our use of humor.

When visiting the United States in the 1880 s, British poet and culture critic Matthew Arnold lamented what he viewed as a pervasive lack of discipline in our society. Arnold especially lamented the lack of awe and respect Americans had for those who were better than others. In pointing out this deficiency he noted that there was one institution of American life that struck him as a particularly bad idea. That was what he called the role of a 'funny man' who, he said, 'is a national misfortune there'. The primary target of Arnold's criticism is a person we now universally regard as a national treasure – journalist, novelist, social critic and skeptic Mark Twain. Twain had an excellent and profound response to Arnold's criticism, and it is an observation that the leaders in China should note and ponder. Twain said, 'A discriminating irreverence is the creator and protector of human liberty.'

This book by Chang Wang and Nathan H. Madson attempts to provide as complete a picture as is presently possible of the Chinese legal system. It is based on their understanding of the posture and position that the Communist Party of China has taken with respect to the rule of law. The authors note the reluctance of China's current leaders to see the rule of law too firmly grounded in the human rights/civil rights area, but yet that same leadership understands its utility in many other areas of Chinese society. During my numerous conversations about the Chinese legal system with Chang Wang and upon reading the authors' manuscript, I have gained great respect for their insights and perceptions as to how the Chinese legal system works. They demonstrate a unique ability to comprehend the complex interrelation of politics and the court, political structure with both rule by law and rule of law, and the impact of these factors on those who are ruled – governed – under these competing and often incompatible concepts.

As previously indicated, I have over the past few years met with several delegations of judges and lawyers from China. As a result of these meetings I have gained some understanding of how difficult it is to establish the concept of rule of law in China and to develop an understanding of the American concept of rule of law. Without question, China's progress in this area will be one of fits and starts. We need to appreciate that sometimes it may appear as though there are two steps forward and one step back – or even one step forward and two steps back. But if there is to be progress – more steps forward than there are steps back – we need people like the authors and their scholarship to help us gain a better insight into the vast and mysterious Chinese legal system. We need people like them to help us understand China's historical and cultural roots and current context, and to break down barriers of language, complexity and communication that can impede or even prevent those who want to understand China better from accomplishing their goal.

Foreword 2

David Weissbrodt, Regents Professor and Fredrikson & Byron Professor of Law University of Minnesota Law School

The significance of China in the world today can scarcely be overstated, though it may seem a cliché to say so. The magnitude of its engagement with the world has become enormous since the reform period of the late ...

Table of contents

• Cover image
• Title page
• Table of Contents
• Copyright page
• Dedication
• List of abbreviations
• Acknowledgments
• Foreword 1
• Foreword 2
• About the authors
• Introduction: justice with a Chinese face
• Part I: Historical views
• Part II: The players
• Part III: Case studies
• Part IV: Conclusion
• Appendix 1: Constitution of the People’s Republic of China
• Appendix 2: The socialist legal system with Chinese characteristics
• Appendix 3: Charter ’08
• Selected readings and resources for further research in Chinese law and history
• Index