Trade Union Law of the PRC (limits workers to party-controlled union affiliation) State Security Law, Article 4 (which lists specific "state-endangering" acts in vague language) Emergency Response Law (which limits the spread of false information during disasters, such as the SARS outbreak and the Chengdu earthquake).Estimated Reading Time: 7 mins. Feb 25, · The Law Library of Congress' Introduction to China's Legal Structure A Brief Introduction to the Chinese Judicial System and Court Hierarchy by Yifan Wang, Sarah Biddulph and Andrew Godwin. China’s Political Institutions and Leaders in Charts by Susan V. Lawrence, Specialist in Asian Affairs, Congressional Research odishahaalchaal.com: Nongji Zhang.
This guide provides some useful resources for the study of Chinese law and important materials available through Harvard Library and the Harvard Law School Library. If you have reference questions on Chinese law, you may request a research consultationor email our Reference Department at research law.
The Whaf legal system is a socialist system of law based primarily on the Civil Law model. The diagram below from the Law Library of Congress illustrates the structure of the Chinese court system:. Many libraries or librarians have created useful research guides on Chinese legal research. If you don't find what you are looking for on this guide, you should also take a look at these other research guides.
General research guides for Chinese studies are also valuable sources for the study whaf Chinese law. Harvard University Digital Accessibility Policy. It looks like you're using Internet Whaat 11 or older. This website works best with modern browsers such as the latest versions of Chrome, Firefox, Safari, and Edge. If wgat continue with this browser, what does it mean when you spam a number may see unexpected results.
Toggle navigation MENU. People's Republic of China Legal Research This guide provides an overview of some of the best resources for Chinese legal research in both Chinese and English. Introduction to China's Legal System Welcome! The Legal System of China from Pkulaw. China Law Research Chinz Many libraries or librarians have created useful research guides on Chinese legal research.
Chinese Studies Research Guide General research guides for Chinese studies are also valuable sources for the study of Chinese law. Online Resources for Chinese Studies in North American Libraries From the Library of Congress, this research guide provides introductions to library collections and hyperlinks to ade on Chinese studies in major North American libraries.
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For example, China’s intellectual property law (the area of law concerned with patents, copyrights, and trademarks) at least ostensibly meets the international standard required by the Trade Related Intellectual Property (TRIP) agreement of the World Trade Organization (WTO). Nov 22, · Technically, under Chinese law, all are equal, but it is often—as it is elsewhere in the world—that some are more equal than others. According to the Estimated Reading Time: 8 mins.
Law of the People's Republic of China , officially referred to as the Socialist legal system with Chinese characteristics , is the legal regime of China , with the separate legal traditions and systems of mainland China , Hong Kong , and Macau. During the Maoist period - , the government had a hostile attitude towards a formalized legal system, because Mao and the Chinese Communist Party CCP "saw the law as creating constraints upon their power.
Courts were closed, law schools were shut down and lawyers were forced to change professions or be sent to the countryside. There was an attempt in the mids to import a socialist legal system based on the Soviet Union. But from the start of the "anti-rightist" movement in 9 to the end of the Cultural Revolution around the PRC lacked most of the features of what could be described as a formal legal system.
This policy was changed in , and Deng Xiaoping and the CCP put into place an "open door" policy which took on a utilitarian policy to the reconstruction of the social structure and legal system where the law has been used as useful tool to support economic growth. Since then, China has continued to develop a formal legal system.
A huge increase in the amount of legislation passed and the increased focus on implementing and enforcing law has allowed for a more stable legal environment compared to the Maoist period. The country is currently in a period of transition as its legal system continues to develop.
Scholar Daniel C. K Chow describes the current system as following "rule by law" rather than "rule of law. China's legal system is largely a civil law system, reflecting the influence of Continental European legal systems, especially the German civil law system in the 19th and early 20th centuries.
On the other hand, Hong Kong still retains the common law system inherited as a former British colony, and Macau employs a legal system based on that of Portuguese civil law. This is part of the One Country, Two Systems theory. They have their own courts of final appeal and extradition policies. As such, respectively, they are not within the jurisdiction of the court system within China, which is only effective within mainland China, but their respective Basic Laws are subject to interpretation by the Standing Committee of the National People's Congress.
China has a tradition of adopting civil law systems. During the Qing Dynasty, the Chinese government hired Japanese legal experts to copy legal systems from Japan in order to modernise the Chinese legal system. This stemmed from the German civil law system. Although the CCP abolished all legal systems of the ROC after , its legal system was deeply influenced by the legal system of the Soviet Union , which could also be regarded as a civil law system.
The development of the current legal system dates from the late s, after the end of the Cultural Revolution. After more than 30 years of endeavour, the People's Republic of China has established, through enactments by the National People's Congress and its Standing Committee, a rather complete legal system with constitution, civil and commercial law, criminal law, administrative law, economic law, procedural law, etc.
In the s, the Weiquan movement began in the PRC, seeking to advance citizens' rights partly by petitioning for enforcement of existing laws, and partly through activism.
Lawyers in the movement have seen some court victories, but in other cases they and their families have been ostracized and even tortured for their activities. It establishes the framework and principles of government, and lists the fundamental rights and duties of Chinese citizens. In practice, however, although these "fundamental rights" include "freedom of speech, of the press, of assembly, of association, of procession and of demonstration" the enforcement of these rights and other elements of the Constitution are subject to the discretion of the Communist Party's leadership.
Unlike some civil law jurisdictions such as Germany , China does not systematically lay down general principles in its constitution which all administrative regulations and rules must follow. The principles of legislation and the validity and priority of law, rule and administrative regulations are instead listed in the Legislation Law , constitutional provisions, basic laws and laws enacted by the National People's Congress and its standing committee, regulations issued by the State Council and its departments, local laws and regulations, autonomous-zone regulations, legal explanations and treaty norms are all in theory incorporated into domestic law immediately upon promulgation.
Signed international treaties are in practice automatically incorporated into PRC law, and they are superior to the relevant stipulations of PRC laws. However, the PRC reserves the right to make reservations regarding provisions of a treaty. Unlike common law jurisdictions, there is no strict precedential concept for case law and no principle of stare decisis.
In addition, there is no case or controversy requirement that would require the Supreme People's Court to limit its decisions to actual cases, and the SPC does issue general interpretations of the law.
In practice, lower people's court judges attempt to follow the interpretations of the laws decided by the Supreme People's Court.
In addition, unlike common law jurisdictions, higher courts have the power of supervision and guidance, which means that on their own initiative they can reopen a case that has been decided at a lower level. Courts in the PRC do not have a general power of judicial review which enables them to strike down legislation.
However under the Administrative Procedure Law of the People's Republic of China , they do have authority to invalidate specific acts of the government. In cases where there is a conflict of laws, the process to resolve this conflict is outlined in the Legislation Law of the People's Republic of China , in which an interpretation is requested by the legislative body that is responsible for the law.
This process has been criticized both by Western and Chinese legal scholars for being unwieldy and for not allowing for judicial independence and separation of powers. At the same time, the counterargument has been made that resolving legal conflicts is primarily a legislative activity and not a judicial one.
The hierarchy of regulations are. Major areas of law are substantive laws and procedural laws. The former include administrative law , criminal law , civil law or business law , and economic law. These are separated into different branches. For example, contract law is considered a branch of civil law. The latter includes civil procedure law , criminal procedure law and administrative procedure law.
Article 2 of the document states that the civil law governs personal and property relationships between natural persons and legal persons having equal status. It covers a wide range of topics, including the General Principles, marriage law , property law , contract law , copyright law , and trademark law. From the point of view of some scholars, business law, such as corporation law , bankruptcy law , insurance law , and law on negotiable instruments , is distinguished from civil law.
In contrast to other civil law jurisdictions, the PRC has not yet consolidated its civil law into a single code. However, the legislative plan is to enact the branches of civil law as separate legislation in the first place and then consolidate them into an entire Civil Code. The first part of the future Civil Code would be General Provisions which will be based on the current General Principles of Civil Law adopted in Civil procedural law advocates the principle of 'open trial' - a system in which the second instance is the final hearing, although a trial supervision system exists in civil litigation which will allow a limited number of cases being tried by the third instance.
Enforcing judgments can prove particularly difficult. China's first post substantive and procedural Criminal Code was enacted in Noteworthy features of criminal law in China include the requirement that crimes and criminal sanctions may only be governed by national laws as opposed to provincial laws or ministerial regulations.
The harshness of criminal law in China is under heavy criticism or strong support, especially the insistence on capital punishment for many crimes. China accounts for the biggest number of criminals executed in the world per year, which has raised great concern among different human rights groups and international organizations.
This is distinct from the system of administrative punishments including detention for periods of multiple years and procedures which are governed under a separate system of laws and regulations.
One example of the structural barriers to the independence of courts is the Chinese Communist Party political-legal committee system, by which "the Party has the power to instruct, monitor or scrutinize courts regarding specific decisions of individual cases or categories of cases that attract attention from the Party. The State Council is authorized to promulgate administrative regulations, on social and economic sectors and affairs consistent with the laws adopted by the NPC and its Standing Committee.
These laws include environmental protection law , regulations on taxation and customs, product quality law , and so on. In these areas, the central government and its organs are superior to other parties, such as enterprises and individuals, for they exercise the power of regulation. The Administrative Procedure Law of the People's Republic of China allows legal persons to bring legal challenges against administrative actions. The types of administrative actions that can be challenged must be "concrete actions", which include: administrative punishments such as detentions and fines , administrative coercive measures, interference with the operations of enterprises, refusal to take action or perform an obligation, unlawful demands for performance of duties, and violations of rights of the person or property rights.
The review of state action is carried out in the local people's court. Court review of agency action is not permitted for state action involving national defense or foreign affairs. Moreover, the court cannot review administrative legislation. As a matter of fact, although administrative litigation involving governments is on the rise due to citizens using legal measures to protect their property from government violation, it is still quite difficult for the court to give fair judgements or efficient execution, as the court's judges are appointed by the Communist Party and finance comes from the government.
There are two types of organs that are empowered to make legislative enactments. In theory, legislation issued by administrative organs is subordinate to that issued by state-power organs. Enactments of administrative organs must not conflict with the Constitution or law. In addition, local people's governments must ensure that their enactments comply with those issued by the State Council and its subordinate departments.
The concept of delegation of power has yet to be fully developed in the PRC legal system. For example, because it is not customary to expressly delegate power to administrative bodies to issue specific regulatory documents, they are not drafted pursuant to any specific entrustment of power in the manner of a statutory authorization of the enactment of implementing regulations. In drafting the new laws, the PRC has declined to copy any other legal system wholesale, and the general pattern has been to issue laws for a specific topic or location.
Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to judicial decisions having more precedential value than in most civil law jurisdictions.
In formulating laws, the PRC has been influenced by a number of sources, including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the Republic of China on Taiwan , and the English-based common law used in Hong Kong.
The law of the United States has also been very influential particularly in the area of banking and securities law. The highest legislative authority is the National People's Congress.
Decisions may contain legal norms in the form of amendments or supplements to laws. They are often used to delegate lawmaking authority to the State Council. The nature of the selection delegates to the NPC has meant that popular input into lawmaking at this level is very limited. Because the delegates range from different fields and backgrounds, only some of them are legal professionals or practitioners.
Without any formal legal education or knowledge, few of the delegates can make suggestions or give opinions on legislation. Thus, a fairly wide cross-section of the party and government at both central and local levels is given the opportunity to produce input.
The act of legislating is to some extent a game of interest groups. Nevertheless, drafts of legislation must be approved by the provincial level congress before they can become law. The judge and prosecutor still are regarded as public servants. It is recognized that the quality of judges and prosecutors are lower than lawyers, but in the major cities, such as the provincial capital cities, the new recruited judges are with higher law degrees than ever before. Any person who wants to work as a judge, prosecutor, or become a practicing lawyer or a public notary, will need to pass the SJE to obtain a Certificate of Legal Profession Qualification.
Like in courts of imperial times, judges are also inquisitors who question witnesses, but unlike traditional courts, only evidence given in court is taken into account. Parties are permitted to engage agents ad litem who may be lawyers or any citizen approved by the court.
A major concern with the modern court system is bribery of judges resulting from low salaries and financial dependence on local government.
Though a great part of disputes that reach the courts still end in mediated rather than adjudicated outcomes, Chinese judges still apply formal laws and follow rules of civil procedure. Since judges in China normally begin their careers as judges as opposed to first serving as lawyers, they may become judges at an unusually young age relative to most other countries.
Under the Organic Law of the People's Courts , judicial power is exercised by the courts at four levels:. It supervises the administration of justice by the people's courts at various levels. Cases are decided within two instances of trial in the people's courts.