Chinese law is one of the oldest legal traditions in the world. In the
20th and 21st centuries, law in China inherits a large number of
traditions. The core of modern
Chinese law is based on Germanic-style
civil law, socialist law, and traditional Chinese approaches.
For most of the history of China, its legal system has been based on
the Confucian philosophy of social control through moral education, as
well as the Legalist emphasis on codified law and criminal sanction.
Following the Revolution of 1911, the
Republic of China
Republic of China adopted a
largely Western-style legal code in the civil law
tradition (specifically German-influenced). The establishment of the
Republic of China
Republic of China in 1949 brought with it a more
Soviet-influenced system of socialist law. However, earlier traditions
from Chinese history have retained their influence.
Law in the People's
Republic of China
Republic of China is currently undergoing gradual
reform, as many elements inside and outside the country emphasize the
need to strengthen the rule of law in China, and international trade
and globalization spur transformations in various areas of Chinese
1 Chinese legal tradition
Confucianism and Legalism
2.1 Republic of China
2.2 People's Republic of China
4 Rule of law
6 Further reading
7 External links
Chinese legal tradition
Main article: Traditional Chinese law
The word for law in classical Chinese was fǎ (法). The Chinese
character for fǎ denotes a meaning of "fair", "straight" and "just",
derived from its water radical (氵). It also carries
the sense of "standard, measurement, and model". Derk Bodde and
Clarence Morris held that the concept of fǎ had an association with
yì (義: "social rightness"). Yan Fu, in his Chinese translation
De l'esprit des lois
De l'esprit des lois published in 1913, warned his
readers about the difference between the Chinese fǎ and Western law:
"The word 'law' in Western languages has four different
interpretations in Chinese as in lǐ (理: "order"), lǐ (禮:
"rites", "decorum"), fǎ (法: "human laws") and zhì (制:
A term which preceded fǎ was xíng (刑), which originally probably
referred to decapitation. Xíng later evolved to be a general term for
laws that related to criminal punishment. The early history Shang Shu
recorded the earliest forms of the "five penalties": tattooing,
disfigurement, castration, mutilation, and death. Once written law
came into existence, the meaning of xíng was extended to include not
only punishments but also any state prohibitions whose violation would
result in punishments. In modern times, xíng'penal law or criminal
law. An example of the classical use of xíng is Xíng Bù (刑部,
lit. "Department of Punishment") for the legal or justice department
in imperial China.
The two major Chinese philosophical schools discussed below,
Confucianism and Legalism, strongly influenced the idea of law in
China. Briefly, under Confucianism, the state should lead the people
with virtue and thus create a sense of shame which will prevent bad
conduct. Under Legalism, law is to be publicly promulgated standards
of conduct backed by state coercion. The tension between these two
systems is that
Confucianism relies on tradition to make the leader
the head of household of all China, while Legalism makes standard law
that even the emperor should be bound by. The common factor is that
both endorse to different degrees a paternalistic conception of the
state, which knows better than its citizens and makes laws to protect
them. This concept persisted throughout the imperial period, into the
republican period, and can still be seen acting today.
Unlike many other major civilizations where written law was held in
honor and often attributed to divine origin, law in early China was
viewed in purely secular terms, and its initial appearance was greeted
with hostility by Confucian thinkers as indicative of a serious moral
decline, a violation of human morality, and even a disturbance of the
total cosmic order. Historically, the people's awareness and
acceptance of ethical norms was shaped far more by the pervasive
influence of custom and usage of property and by inculcating moral
precepts than by any formally enacted system of law. Early emperors
however embraced the Legalist ideal as a way of exerting control over
their large and growing territory and population. This process was
integrated with traditional Chinese beliefs in the cosmic order,
holding that correct behavior was behavior consonant with the
appropriate responses set by fǎ. Xíng states the potential costs to
the individual of exceeding them and imposes penalties for these
The imperial period was characterized mainly by the concept of law as
serving the state, a means of exerting control over the citizenry. In
Qing dynasty there were efforts to reform the law codes
mainly by importing German codes with slight modifications. This
effort continued and was amplified in the republican period resulting
in the Provisional Constitution of 1912 which included the idea of
equality under the law, rights for women, and broader rights for
citizens vis-à-vis the government. The onset of the communist period
at first rolled back the development of individual rights with the
primary concept of law returning to that of a tool of the state. After
Cultural Revolution devastated the ranks of intellectuals and
legal professionals, it took until 1982 for the idea of individual
rights to reemerge as a significant influence on Chinese law.
The current constitution, created in 1982, states in Article V that no
organization or individual is above the law and in Article III makes
the People’s Congresses and state administration responsible to the
people, paving the way for later efforts to allow enforcement of
individual rights. Passage of the Administrative Litigation Law of
1987 created legal recourse for individuals from arbitrary government
action, an avenue previously unavailable. Despite the deep-seated norm
against legal proceedings, litigation in the Chinese courts has
increased dramatically, especially in recent years. The continuing
weakness of courts resulting from their dependence on the local
government for financial support and enforcement undermines the
effectiveness of these remedies but this has also begun to change with
China’s initiatives to increase legal training and the
professionalism of the judiciary.
One avenue of individual appeal from government action which continues
to be important is the custom of xìnfǎng or petitions by citizens to
the individuals officials for change. The continuing wide use of
xìnfǎng reflects the fact that many officials are still able to
avoid legal sanctions and the underlying avoidance of the legal
system, as well as the personal ability of officials to personally
intervene to change unjust results. Recently xìnfǎng has been
institutionalized to some extent with the central government mandating
that every level of administration establish a xìnfǎng office to
handle petitions and report them up to high levels. This solution by
exertion of personal power clearly goes against the idea of rule of
law, and worse, some scholars have noted that xìnfǎng today
functions more as an informational collection system for the
government than an effective review mechanism.
Confucianism and Legalism
Confucianism and Legalism are two major Classical legal theories or
philosophies developed during the Spring and Autumn period and the
Warring States period, a time that saw the most impressive
proliferation of new ideas and philosophies in Chinese history. While
both theories call for governmental hierarchy, they differ drastically
in their views of human potential and the preferred means to achieve
political order. Nevertheless, both theories have influenced and
continue to influence the development of cultural, social, and legal
norms in China.
The basic premise of
Confucianism is the idea that human beings are
fundamentally good. With this optimistic view on human potential,
Confucius advocates for ruling through li – traditional customs,
mores, and norms – which allow people to have a sense of shame and
become humane people with good character, rather than through
government regulations and penal law. The idea is that people will
internalize the acceptable norms and only take proper actions. This
will not only lead to a harmonious social order, but it will also
provide the additional benefit of improving an individual’s inner
character and the overall quality of the society. In contrast,
codified laws require external compliance, and people may abide by the
laws without fully understanding the reason for compliance. As such, a
social order achieved through formal laws does not come with the
additional benefit of better citizenry. It is worth noting, however,
that even Confucius did not advocate for the elimination of formal
laws. Rather, according to Confucius, laws should be used minimally
and reserved only for those that insist on pursuing one’s
self-interests without taking into account the well being of the
As Confucius rejects the general use of formal laws to achieve social
order, what lies vital to Confucius’ theory is the willing
participation by citizens of the society to search for commonly
accepted, cooperative solutions. In addition to willing participation
of citizens, there must also be grounds or bases upon which commonly
acceptable solutions can be arrived at – the concept known as li. Li
is commonly understood as a set of culturally and socially valued
norms that provide guidance to proper behaviors that will ultimately
lead to a harmonious society. These norms are not fixed or
unchangeable over time but rather a reflection of what is accepted at
a particular time in a particular context. When conflicts arise, the
li have to be applied and interpreted to produce a just result and
restore the harmony of the society. However, in the absence of any
procedural safeguard afforded by codified laws, interpretation of li
is subject to abuse.
Recognizing that people in a society hold diverse interests, Confucius
charges the ruler with the responsibility to unify these interests and
maintain social order. This is not done by dictatorship but by setting
an example. Therefore, a ruler needs not to force his people to behave
properly. Instead, the ruler needs only to make himself respectful,
and the people will be induced and enlightened by his superior virtues
to follow his example – an ideal known as wúwéi. Nevertheless, the
ruler must know and understand the li to be able to create solutions
to conflict and problems the society faces. As the people are to
follow the moral standards and example set by the ruler, to a large
extent, the quality of the ruler determines the quality of the
In contrast to Confucius’ li-based theory, the Legalism advocates
the utilization of codified laws and harsh punishment to achieve
social order. This is due to the legalists’ belief that all human
beings are born evil and self-interested. Therefore, if left
unrestrained, people would engage in selfish behavior which will
undoubtedly lead to social unrest. To cure this defect and force
people to behave morally, the only way, believed the legalists, is to
publicly promulgate clearly written laws and impose harsh punishments.
Realizing that the abilities of rulers are often limited and that
reliance on the ruler’s ability and judgment often leads to adverse
results, the legalists designed a system in which the law is run by
the state, not the ruler. This ensures that the laws will be applied
impartially without the interference of personal bias of the ruler or
ones who are responsible for applying the laws. It also makes it
irrelevant whether the ruler has superior abilities. This non-action
promoted by the legalists is their understanding of the concept of
wuwei, which is different from the Confucians’ understanding of the
Notwithstanding such an understanding, the ruler, like in
Confucianism, has the ultimate authority to decide what the law should
be. Therefore, like Confucianism, Legalism is subject to abuse as
well. In fact, the Qin emperor implemented strict laws and extremely
harsh punishments without taking into account mitigating circumstances
even for insignificant crimes. For example, books were burned and
people holding different ideals were buried alive. While the Qin
emperor successfully instilled fear and respect for law into the minds
of his people, the harshness of the law led to his quick demise after
only 14 years of reigning over China.
In summary, although both
Confucianism and Legalism were developed in
a period of turmoil and both were aimed at the re-unification of the
country, the two theories went opposite directions with one advocating
for and one against the use of formal laws to achieve social order.
What the two theories have in common is their concession of the
ultimate authority to the ruler, who remained above and beyond the li
or law. It is true that neither theory is ideal in achieving a social
order. Nevertheless, both theories have had a significant impact on
the cultural and legal development in China, and their influence
remains visible today.
The significant influence of the Legalist tradition in
Chinese law has
historically been overlooked. Although the Confucian ideology provided
the fundamentals for the substance of traditional law, the Legalist
school constructed the important framework of the traditional legal
Han dynasty retained the basic legal system established
under the Qin but modified some of the harsher aspects in line with
the Confucian philosophy of social control.
Han dynasty formally recognized four sources of law: lü (律:
"codified laws"), ling (令: "the emperor's order"), ke (科:
"statutes inherited from previous dynasties") and bi (比:
"precedents"), among which ling has the highest binding power over the
other three. Most legal professionals were not lawyers but generalists
trained in philosophy and literature. The local, classically trained,
Confucian gentry played a crucial role as arbiters and handled all but
the most serious local disputes.
Eventually, the incorporation of the essentials of Confucianist li
into legal codes occurred with this Confucian conception dominating
ancient Chinese law. Ch'ü concludes that the gradual process of
Confucianisation of law was the most significant development in the
legal system of China prior to 20th century modernization. The line
between ruling by moral influence and ruling by punishment was not
always clearly delineated. For example, li could be enforced by moral
influence and legal means. The metamorphosis of li into law depended
on its widespread and unvaried acceptance by society.
Although the codification of law was largely completed by the Tang
Code of CE 624, throughout the centuries the Confucian foundations of
Tang Code were retained, and indeed with some aspects of it
strengthened by the later dynasties. The Great Ming Code, which was a
model for the Qing code, covered every part of social and political
life, especially family and ritual, but also foreign relations and
even relations of earthly life with the cosmos. 
The Confucian notion that morality and self-discipline was more
important than legal codes caused many historians, such as Max Weber,
until the mid-20th century to conclude that law was not an important
part of Imperial Chinese society. This notion, however, has come under
extreme criticism and is no longer the conventional wisdom among
Sinologists, who have concluded that Imperial China had an elaborate
system of both criminal and civil law which was comparable to anything
found in Europe.
During the Qing dynasty, criminal justice was based on extremely
detailed Great Qing
Legal Code. One element of the traditional Chinese
criminal justice system is the notion that criminal law has a moral
purpose, one of which is to get the convicted to repent and see the
error of his ways. In the traditional Chinese legal system, a person
could not be convicted of a crime unless he has confessed. This often
led to the use of torture, in order to extract the necessary
confession. These elements still influence modern Chinese views toward
law. All capital offenses were reported to the capital and required
the personal approval of the emperor.
There was no civil code separate from the criminal code, which led to
the now discredited belief that traditional
Chinese law had no civil
law. More recent studies have demonstrated that most of the
magistrates' legal work was in civil disputes, and that there was an
elaborate system of civil law which used the criminal code to
The introduction and translation of Western legal texts into Chinese
is believed to have been started under the auspices of
Lin Zexu in
1839. More systematic introduction of Western law together with other
Western sciences started with the establishment of
Tongwen Guan in
1862. The major efforts in translation of Western law that continued
until the 1920s prepared the building blocks for modern Chinese legal
language and Chinese law.
Legal translation was very important from
1896 to 1936 during which period the Chinese absorbed and codified
their version of Western laws. These efforts were assisted by the
medium of the Japanese legal language and law developed in Japan
Meiji period which involved in large part Japanese
translation of European Continental laws.
In the late
Qing dynasty there was a concerted effort to establish
legal codes based on European models. Because of the German victory in
Franco-Prussian War and because Japan was used as the model for
political and legal reform, the law codes which were adopted were
modeled closely after that of Germany.
Attitudes toward the traditional Chinese legal system changed markedly
in the late-20th century. Most Chinese and Westerners of the early
20th century regarded the traditional Chinese legal system as backward
and barbaric. However, extensive research into China's traditional
legal system has caused attitudes to become more favorable in the
late-20th and early 21st centuries. Researchers of the early and
mid-20th century tended to compare the traditional Chinese legal
system to then contemporary systems, finding the former to be
backward. However, more recent research compared the 18th-century
Chinese legal system to European systems of the 18th century,
resulting in a far more positive view of traditional Chinese
The Department of
Punishment was changed to fa bu (法部: "Department
of Law") in the early 1900s legal reforms.
Republic of China
Main article: Law of the Republic of China
Law in the
Republic of China
Republic of China (Taiwan) is mainly a civil law system.
The legal structure is codified into the Six Codes: the Constitution,
the Civil Code, the Code of Civil Procedures, the Criminal Code, the
Code of Criminal Procedures and in Administrative Laws.
People's Republic of China
Main article: Law of the People's Republic of China
After the Communist victory in 1949, the newly established People's
Republic of China
Republic of China (PRC) quickly abolished the ROC's legal codes and
attempted to create a system of socialist law copied from the Soviet
Union. With the
Sino-Soviet split (1960-1989) and the Cultural
Revolution (1966-1976), all legal work came under suspicion of being
counter-revolutionary, and the legal system completely collapsed.
Over the past century China has had several constitutions. The
first attempts towards implementing a constitution in China occurred
during the final decade (1902-1912) of the Qing Dynasty. Various
controlling groups subsequently promulgated different constitutions
between that time and the establishment of the PRC in 1949. The PRC
had a provisional constitution from its inception until the enactment
of its first constitution in 1954. This initial constitution was based
on the constitution of the Soviet Union. It was shortly ignored,
however, and became without legal force. Although it provided for the
election of the
National People’s Congress
National People’s Congress (NPC) every four years as
the highest state power, these guidelines were not adhered to. The
second constitution of the PRC, modeled on the ideology of the
Cultural Revolution, came into force in 1975. This constitution
subjected the NPC to the
Communist Party of China
Communist Party of China and removed previous
constitutional protections such as equality under the law and
private-property succession rights. It was also immediately
disregarded through breaches of its provisions and non-adherence to
guidelines regarding the NPC. The third constitution of the PRC was
adopted in 1978. Although this version moved away from the ideologies
of the Cultural Revolution, it did retain some remnants of it. It also
retained Communist Party control over the state structure. However,
reformists subsequently gained power, which led to the breakdown of
this constitution as focus shifted to economic construction and
With the start of the
Deng Xiaoping reforms (ca 1979), the need for
reconstructing a legal system to restrain abuses of official authority
and revolutionary excesses was seen.[by whom?] In 1982 the National
People's Congress adopted a new state constitution that emphasized the
rule of law under which even party leaders are theoretically held
Legal reconstruction occurred in piece-meal fashion.
Typically, temporary or local regulations would be established; after
a few years of experimentation, conflicting regulations and laws would
The current[update] Constitution of the PRC, enacted in 1982, reflects
the model of the first PRC constitution. The Constitution provides
for leadership through the working class, led in turn by the Communist
Party. This Constitution also contains more extensive rights than any
of the previous constitutions. The rights include equality before the
law, political rights, religious freedom, personal freedom, social and
economic rights, cultural and educational rights, and familial rights.
These rights, however, are connected to social duties. The duties
include safeguarding the unity, security, honor, and interests of the
country, observing law and social ethics, paying taxes, and serving in
the military. Neither the rights nor duties provided for in the
Constitution are exhaustive.
The Constitution provides that the NPC is the supreme organ of state
power over a structure of other people's congresses at various
levels. The NPC has power to:
amend the Constitution by a two-thirds majority
elect and remove highest-level officials
determine the budget
control economic and social-development planning
The NPC also includes a Standing Committee that functions much as the
NPC does when the NPC is not in session. Although the Standing
Committee has had some powers since 1955, its law-making powers were
initially provided for in the 1982 Constitution. The NPC sits at the
highest level in the hierarchy of governmental structure in the PRC.
This national level is followed in descending order by the provincial
level (including autonomous regions and municipalities directly under
the national level), the prefectural level, the county level, and the
townships and towns level. Government members at the lower two levels
are directly elected, and those at the higher levels are elected by
the lower levels. In addition to the NPC, the provincial people's
congresses possesses legislative power and can pass laws so long as
they do not contravene the Constitution or higher legislation or
The Constitution states its own supremacy. However, it has been
theorized[by whom?] that the supremacy of the Communist Party means
that the Constitution and law are not supreme, and that this
perspective results from the Marxist view of law as simply a
superstructure combined with a lack of recognition of rule of law in
philosophical or historical tradition. Although the Constitution
provides for legislative, executive, judicial, and procuratorial
powers, they all remain subject to Communist Party leadership. Often,
important political decisions are made through actions which are not
regulated by the Constitution. Additionally, courts need not rely on
the Constitution in deciding cases, and they may not review
legislation for Constitutionality. Nonetheless the
Constitution does provide the linguistic framework for conducting
government affairs and describing them in the media.
Since 1979, when the drive to establish a functioning legal system
began, more than 300 laws and regulations, most of them in the
economic area, have been promulgated. The use of mediation committees,
informed groups of citizens who resolve about 90% of the PRC's civil
disputes and some minor criminal cases at no cost to the parties, is
one innovative device. More than 800,000 such committees operate - in
both rural and urban areas.
In drafting the new laws, the PRC has not copied any other legal
system wholesale, and the general pattern has involved issuing 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 many
situations where the laws are missing, confusing, or contradictory,
and has led to judicial decisions having more precedental 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
Republic of China on Taiwan, and the
English-based common law used in Hong Kong.
Legal reform became a government priority in the 1990s. The Chinese
government has promoted a reform it often calls "legalisation"
(法制化). Legalisation, among other things, has provided the
régime with a gloss of legitimacy and has enhanced
predictability. There have been major efforts in the
rationalization and strengthening of the legal structure and
institution building in terms of developing and improving the
professionalism of the legislature, judiciary and legal profession. As
market reforms have deepened and social inequality has widened, legal
forums – ranging from mediation and arbitration commissions to
courts – have come to play an increasingly prominent role.
The 1994 Administrative Procedural Law allows citizens to sue
officials for abuse of authority or malfeasance. In addition, the
criminal law and the criminal-procedures laws were amended to
introduce significant reforms. The criminal-law amendments abolished
the crime of "counter-revolutionary" activity. However political
dissidents are sometimes charged on the grounds of subverting state
security or of publishing state secrets. Criminal-procedures reforms
also encouraged establishment of a more transparent, adversarial trial
process. Minor crimes such as prostitution and drug use are sometimes
dealt with under re-education through labor laws. The PRC constitution
and laws provide for fundamental human rights, including due process,
but some have argued that they are often ignored in practice. (See
Human rights in the People's Republic of China.)
The basic principles of Chinese legislative drafting include
generality and flexibility. Sometimes excessive generality and
omissions in Chinese law, coupled with the wide discretionary powers
conferred on local authorities to implement laws, undermines the
predictability and certainty of law. Furthermore, as
Chinese law is
intended[by whom?] to be educative, the language of the law is that of
the ordinary language comprehensible to the average citizen,[citation
needed] although many laws are drafted in broad and indeterminate
As a result of a pending trade war with the
United States of America
over violations of intellectual property rights of American
corporations in the early 1990s, the People's
Republic of China's trademark law has been modified and as of
1995[update] offers significant protections to foreign
After their respective transfers of sovereignty, Hong Kong and Macau
continue to practice English
Common Law and Portuguese legal systems
respectively, with their own courts of final appeal. In other words,
Hong Kong and
Macau lie outside of the legal jurisdiction of the
People's Republic of China, except on constitutional issues.
Due to the growing sophistication of Chinese laws, the expansion of
the rule of law, as well as an influx of foreign law firms, China has
also begun to develop a legal-services market. Foreign lawyers have
accompanied foreign capital and their clients to China, which has had
an immense influence on the promulgation of new Chinese laws based on
international norms, especially in regards to intellectual property
and corporate and securities law.[need quotation to verify]
On July 1, 1992, in order to meet growing demand, the Chinese
government opened the legal-services market to foreign law-firms,
allowing them to establish offices in China when the Ministry of
Justice and the
State Administration of Industry and Commerce
State Administration of Industry and Commerce (SAOIC)
issued the Provisional Regulation of Establishment of Offices by
Foreign Law Firms regulation.
As a result, many foreign law firms, including the United States'
Baker & McKenzie and Paul, Weiss, Rifkind, Wharton & Garrison,
along with several British firms, incorporated consulting firms in
their home countries or in Hong Kong and then set up subsidiaries in
Beijing or Shanghai to provide legal services.
However, many regulatory barriers to entry remain to protect the
domestic legal industry. Issues relating to
Chinese law must be
Chinese law firms, and foreign lawyers are also prohibited
from interpreting or practicing
Chinese law or from representing their
clients in court. However, in reality many foreign law firms interpret
laws and manage litigation by directing the local firms they must have
cooperative relationships with. In this regard, China's restrictive
legal market can be directly tied[by whom?] to a phobia of people
asserting their legal rights in the face of rampant corruption.
Information received[by whom?] from the State Council Legislative
Office suggests that China may be allowing foreigners to sit the
Chinese Lawyers Examination, or have a mutual recognition treaty with
other countries to allow foreign lawyers to conduct non-litigation
Chinese legal work.
While China's legal market continues to open up, China's laws and
regulations have helped the development of a number of domestic
Chinese firms specializing in working with foreigners to meet the
demand of a booming economy. According to Asia Law and Business
magazine China Awards, the top China firms were[when?] King & Wood
PRC Lawyers, Commerce & Finance Law Offices, Fangda Partners,
Haiwen & Partners,
Jun He Law Offices
Jun He Law Offices and Lehman, Lee &
Classical Chinese does not have a semantic equivalent to the concept
of "rights". The idea of rights was introduced to
China from the West. Its translation as quánlì (权利) was coined
William Alexander Parsons Martin
William Alexander Parsons Martin in 1864, in his translation of
Henry Wheaton's Elements of International Law....
Rule of law
One of the most commonly used phrases in contemporary China, by legal
scholars and politicians alike, is fǎzhì (法治). Fǎzhì can be
translated into English as “rule of law”, but questions have often
been asked whether Chinese leaders meant "rule by law", which means
the instrumental use of laws by rulers to facilitate social control
and to impose punishment as understood in the Legalist tradition.
The related concepts of yǐ fǎzhì guó (以法治国: "governing the
nation with law") and jiànshè shèhuì zhǔyì fǎzhì guójiā
(建设社会主义法制国家: "building a socialist rule of law
state") have been part of the Chinese Communist Party's official
policy since the mid-1990s. In 1999, the NPC adopted an amendment to
the Chinese Constitution, incorporating both concepts in Article 5.
The existence of the rule of law in China has been widely debated.
When discussing Chinese law, it is worth noting that various
expressions have been used, including “strengthening the law,”
“tightening up the legal system,” “abiding by the law in
administration,” “rule by law,” and the “rule of law”.
Different shades of meanings have been attached to each of these
terms, but Chinese officials and scholars have employed the
expressions rather loosely and sometimes interchangeably. However,
the central government had originally preferred the expression,
“strengthening the law/legal system” to “the rule of law”. It
was thought that the latter might give a controversial connotation of
the instrumentality, while the former conveyed a straightforward
meaning of strengthening the law and institutions. “Strengthening
the law” meant reform of legislation and enforcement of laws.
There are differing theories of the rule of law. One theory is the
"thin", or formal, theory of rule of law, and the other is the "thick"
The "thin" theory of rule of law is described by Randall Peerenboom as
at the basest level incorporating a legal system that imposes
meaningful restraints on the state and individuals in ruling power,
that the law is supreme, and that all citizens are equal before the
law (Peerenboom, 2). According to Lon Fuller’s account of thin
theory, rule of law exists in a society when the laws of that society
are “general, public, prospective, clear, consistent, capable of
being followed, stable, and enforced” (Peerenboom, 3). The thin
theory has also been explained by Joseph Raz as emphasizing the formal
or instrumental aspects of a legal system regardless of whether it is
part of a particular political structure, i.e. a democratic or
non-democratic society. Thick theory rule of law espouses all the
elements of thin theory in addition imposes a political, social, and
economic concept into the rule of law. The rule of law is regarded by
some as presupposing political or economic structures of liberal
democracy, human rights and other ideal socio-legal order. Some
scholars believe that given China's socialist and non-democratic
political system and practice, it is at best regarded as a country of
rule by law with law used by the state as an instrument for social
control. However, others rely on the formal or thin theory of rule
of law to interpret fazhi as a legal reality in China.
Additionally, some believe that China may still fall short of the thin
theory of rule of law.
Of particular relevance to the second principle set out above, was the
enactment of the Administrative Permission Law of the PRC (APL) on 27
August 2003, effective from July 2004. The APL for the first time
requires all laws and regulations that subject any civil act to
approval requirements to be published.
The APL also provides that only those laws adopted by the National
People’s Congress or its Standing Committee, administrative
regulations promulgated by the State Council, and local regulations
adopted by the local people’s congresses may impose administrative
approval requirements. Individual ministries or agencies (central or
local) do not have such powers except in specified circumstances. This
is consistent with the hierarchy of laws and regulations provided
under the Legislative Law of the PRC. The enactment of the APL
represents an encouraging step forward.
Despite the newly elevated role of courts in Chinese society, there
still remains some consensus about defects in China’s legal system
in regards to progressing towards the rule of law. Scholars point to
the following defects as slowing movement toward rule of law. These
National People’s Congress
National People’s Congress is ineffective at executing
its constitutional duty to legislate and supervise the government.
Second, the Chinese Constitution is not treated as the supreme law,
nor is it enforced.
Third, the judiciary is not independent from political pressure. On
the other hand, direct intervention in particular cases by the CCP has
lessened in recent years, as has the direct influence of the CCP on
the legislative process.
Fourth, there is a high level of corruption among public officials.
Personal favors, bribery, and taking of public monies are all too
common at all levels of government.
Finally, the legal profession is inadequate for lack of qualified
attorneys and judges. This failure is being remedied by
legislation aimed at instituting higher educational standards for
judges, opening more courts and law schools throughout China.
In the 2000s, 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 are
^ See Lang Chippings, "Explicating 'Law': A Comparative Perspective of
Chinese and Western
Legal Culture" (1989) 3(1) Journal of Chinese Law
^ Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified
by 190 Ching Dynasty Cases with Historical, Social, and Judicial
Commentaries (Philadelphia: University of Pennsylvania Press, 1973) at
^ Yan Fu, Fayi [法意: "The Spirit of the Laws"] (Beijing: The
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^ Note 4 at 13.
^ Brian E. McKnight, Law and Order in Sung China (London: Cambridge
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^ Farah, Paolo Davide (2008). "The Influence of
Confucianism on the
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^ Ch'ü T'ung-tsu, Law and Society in Traditional China (Paris: Mouton
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^ Jiang (2005), p. Introduction.
^ Yu Jiang, "Jindai Zhongguo faxue yuci de xingcheng yu fazhan"
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^ Albert Hung-Yee Chen (1992), pp. 42-45.
^ Albert Hung-Yee Chen (1992), pp. 45-54.
^ Albert Hung-Yee Chen (1992), pp. 48-55.
^ Albert Hung-Yee Chen (1992), pp. 40-46.
^ a b Alford, William P. (1995). To Steal a Book is an Elegant
Offense: Intellectual Property Law in Chinese Civilization. Stanford,
California: Stanford University Press. ISBN 0-8047-2270-6.
^ The Internationalization of China's
Legal Services Market
^ ALB Awards[dead link]
^ Linda Chelan Li, The “Rule of Law” Policy in Guangdong:
Continuity or Departure? Meaning, Significance and Processes. (2000),
199-220. Reply Forward
^ Randall Peerenboom & He Xin, Dispute Resolution in China:
Patterns, Causes, and Prognosis, 4
East Asia Law Review
East Asia Law Review (2009), found
at Penne. ALR website Archived 2011-03-25 at the Wayback Machine.
^ a b Linda Chelan Li, The “Rule of Law” Policy in Guangdong:
Continuity or Departure? Meaning, Significance and Processes. (2000),
^ a b "China Briefing Business Reports" (PDF). Asia Briefing. 2008.
Archived from the original (PDF) on 2009-02-25. Retrieved
^ Albert Hung-yee Chen, An Introduction to the
Legal Systems of the
People’s Republic of China, Butterworths Asia (1992), 80-82.
^ Chen, 107; Randal Peerenboom, China’s Long March Toward Rule of
Law, Cambridge University Press (2002), 61
^ Chen, 106, 117-121
^ Peerenboom, 295-297
^ Chen, 121-123
^ Peerenboom, 290-293
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