Those who approach the comparative study of Chinese law will likely do so with a limited knowledge of the Chinese legal system, and the perception of the system as unrefined, authoritarian and inferior to western systems of law. While many of the criticisms of the Chinese legal system are, in practice, justified, the Chinese constitutional and legislative framework is, at least theoretically, surprisingly sophisticated.

A young system

Perhaps the most astounding aspect of the Chinese legal system is its relative youth. The contemporary system of law in China emerged from the chaos of the 1966–76 Cultural Revolution, at a time when the People’s Republic of China was transitioning from a ‘pure socialist planned economy’ to a ‘socialist market economy’.1 Consequently, the entirety of the current constitutional and legislative framework has been put in place within the last 40 years, beginning with criminal and criminal procedural laws in 1979,2 which were followed by a new constitution in 1982,3 the General Principles of Civil Law in 1986,4 and the Civil Procedure Law in 1991.5 This modernisation of Chinese law was conducted within a period of about 10 years, albeit not necessarily in a fully comprehensive manner.6

Theoretical protection of rights

The 1982 Constitution is a high-quality instrument that protects, on a paper, a significant number of constitutional rights and freedoms. In the drafting process, some 140 constitutions from around the world were consulted to create China’s unique blend of democratic rights and freedoms underpinned by socialist ideology.7 These rights include many familiar to western scholars, such as equality before the law; universal protection; universal suffrage; freedoms of speech, the press, assembly, association, procession, demonstration and religious belief; and the rights to work and receive education.8 It is surprising to find such a comprehensive collection of rights in the constitution of a country with an objectively poor human rights record, highlighting the problems associated with the realisation of those rights.

A blueprint for developing countries?

The expeditious growth of the Chinese legal system may, however, make it a suitable blueprint for developing countries seeking to modernise their legal systems, especially as the Chinese approach promotes rapid economic development.9 As Volker Behr acknowledges, often the pre-existing legal system of a country cannot be easily adapted for new political and economic conditions, so reform is sometimes needed at the fundamental level.10 It may be wiser to focus on rapidity rather than precision or comprehensiveness, as basic laws that can be enacted quickly and then gradually refined over time can be more effective than complex codes that take years to draft.11

A constitution and basic civil and criminal provisions allow a legal system to function while being refined, complemented, amended and consolidated.12 A significant advantage of this approach is that it merely requires a competent and active legislature — unlike common law systems, the Chinese approach does not require a strong or well-trained judiciary and legal profession from the start.13 China also appears to have a much faster alternation between de-codification and re-codification than European and Latin American jurisdictions:14 while special legislation does develop in China outside codes (de-codification), it is consolidated into the codes comparatively quickly (re-codification).15

The Communist Party and the rule of law

Despite these advantages, there remain many valid criticisms of the Chinese legal system that relate mostly to the rule of law and the enforcement of constitutional rights. Randall Peerenboom asserts that the dominance of the Communist Party over the legislative, executive and judicial processes in China makes it difficult for the legal system to ‘obtain sufficient authority to control the Party’.16 In order to enforce the rule of law, the Communist Party must voluntarily bring itself within the law.17 On the other hand, China has come a remarkably long way towards political, legal and economic stability in a short period of time, and to a large degree this has been the product of centralised control by the Communist Party.

The need for an independent judiciary

A further criticism is that China does not have a constitutionally independent judiciary to enforce the rule of law or uphold constitutional rights. In comparing the Chinese constitutional framework to that of the United States, Zhiwei Tong explains that the United States Constitution separates the powers of government between three branches such that the judicial branch is equal to, but independent of, the legislative and executive branches.18 This contrasts with the Chinese Constitution, which distributes power ‘in accordance with democratic centralism; the judicial branch is created by and is responsible to the’ National People’s Congress, giving the judiciary no authority to supervise or balance the ‘representative organ.’19 This does not necessarily make the system structurally unsound or undemocratic: Zhiwei argues that the Chinese Constitution provides for its own enforcement, and suggests the path forward for the Chinese legal system is to implement a constitutional court consistent with the constitutional structure of the People’s Republic of China.20

Conclusion

Although it has been the target of much criticism, the Chinese legal system deserves a little more credit than it has typically been given. In a relatively short period of time, the country has laid the foundations for sustainable legislative and economic growth. By opting for codification rather than case law as the main mechanism for legal development, China has been able to give effect to its socialist goals, develop its economy rapidly, engage in international trade and investment, and lay the foundations for what could one day become a liberal democracy. Thus, despite its many flaws that reduce the efficacy of the constitutional and legal system, there remains a solid base for future development.

  1. Volker Behr, ‘Development of a New Legal System in the People’s Republic of China’ (2007) Louisiana Law Review 1161, 1164. ↩

  2. «中华人民共和国刑法» [Criminal Law of the People’s Republic of China]; [Criminal Procedure Law of the People’s Republic of China]. ↩

  3. «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China]. ↩

  4. «中华人民共和国民法通则» [General Principles of Civil Law of the People’s Republic of China]. ↩

  5. «中华人民共和国民事诉讼法» [Civil Procedure Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress, 9 April 1991. ↩

  6. Behr, above n 1, 1166. ↩

  7. Ibid 1167–70. ↩

  8. «中华人民共和国宪法􏰂􏰃􏰄􏰅􏰆􏰇􏰈􏰼􏰏» [Constitution of the People’s Republic of China] ch II. ↩

  9. Behr, above n 1, 1174–5. ↩

  10. Ibid 1175. ↩

  11. Ibid. ↩

  12. Ibid. ↩

  13. Ibid 1177. ↩

  14. Maria Luisa Murillo, ‘The Evolution of Codification in the Civil Law Legal Systems: Towards Decodification and Recodification’ (2001) 11(1) Journal of Transnational Law & Policy 1. ↩

  15. Behr, above n 1, 1175–6. ↩

  16. Randall Peerenboom, ‘China and the Rule of Law: Part II’ (2006) 1 Perspectives 6. ↩

  17. Ibid 1–2. ↩

  18. Zhiwei Tong, ‘A Comment on the Rise and Fall of the Supreme People’s Court’s Reply to Qi Yuling’s Case’ (2010) 43 Suffolk University Law Review 669, 674. ↩

  19. Ibid. ↩

  20. Ibid 679. ↩