GEB 1305

China and the World

Lecture 4

The Development of Modern China:

Legal and Political Development
1
Political Development

2
The Chinese Communist Party and State Institutions

• The political and economic reordering of China after 1949 was modeled after the

Soviet party-state.

• The Chinese Communists adopted the organizational principles of a cadre party and its

leadership role in politics, society, and the economy from Lenin (1870–1924), the

founder of the Communist party-state in the former Soviet Union.

• The party was conceived of as a centralized hierarchical organization for political

mobilization and control

3
The Chinese Communist Party and State Institutions

• The formal organizaIon of poliIcal insItuIons in the People’s Republic of China (PRC)

corresponds to that of a centralized socialist party dictatorship.

• PoliIcal rule is based on the Chinese Communist Party (CCP), that possesses

comprehensive powers in terms of decision-making and the ability to interfere in all

aspects of poliIcal, administraIve, economic, and social issues.

• ConcentraIon of power rather than a division of power with respect to the execuIve,

legislaIve, and judiciary funcIons

4
Ideology and Legitimation in Transition
• Under the changed conditions of the 21st century, in addition to its economic and socio-political
programs, nationalism plays a vital role in the self-legitimation of the CCP.

• In order to win political support, the party presents itself as the guardian of China’s national
sovereignty and dignity.

• “Patriotic education” is of key importance in the media and in education

• Xi Jinping considered strictly governing the party to be a prerequisite for achieving the goals of the
“Four Comprehensives”

à beginning in 2013 the party leadership embarked on an extensive anti-corruption campaign,

which was explicitly directed against leading party cadres and their patronage networks
5
The Constitution of the Party-State
• Key elements of the state institutions set forth in China’s first constitution in 1954 adhered to the
Soviet model

• To this day, the following features remain the basic principles of the constitutional system of the
PRC:

• the leading political role of the CCP;

• the comprehensive powers of the central government to intervene with respect to the
regional leadership;

• a concentration of power (and hence an explicit rejection of political limitations on power

among the executive, legislative, and judicial branches); and
• subordination of individual rights to collective interests. 6
The Cons9tu9on of the Party-State

• Four constitutions have been enacted since the PRC was founded (in 1954, 1975,

1978, and 1982), each of which reflect the changing political objectives of the CCP.

• Constitutions of 1975 and 1978: highlighted the importance of class struggle

• The present constitution of 1982 (of which key elements were modified in 1988,

1993, 1999, and 2004): indicates efforts to achieve socialist modernization of the

economy and stabilization of state institutions.

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The Constitution of the Party-State
Chapter III contains details about the state structure :
The National People’s Congress
• The legislative body, is indirectly elected every five years and is formally the “highest organ of state power.”
• The plenary session of the NPC is responsible for:
• revisions to the constitution (with approval by a two-thirds majority),
• preparing and amending basic laws (by a simple majority),
• election/removal of the president, and confirmation/removal of the most important members of other state bodies
(including the supreme judicial organs),
• examination and confirmation of the national budget, and
• decision-making on war and peace (Arts. 62–64).
• According to the constitution, candidates for high-ranking government offices are elected by the NPC or by its Standing
Committee. However, in reality the candidates are already selected and appointed—but not publicly—prior to the
congress by the CCP organs. 8
The Constitution of the Party-State

The Chairman of the PRC (the President)

• Engages in “affairs of state,” which remain unspecified in the constitution.

• Since the 1990s, the office has effectively served diplomatic purposes and foreign-

policy profiling of the CCP general secretary, who appears internationally not in his

party role but rather as China’s state president.

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The Constitution of the Party-State

The State Council

• That is the Chinese central government, is defined in the constitution as the “executive

body” of the NPC and as the “highest organ of state administration”

• The Premier, or the head of the State Council, exercises a broad range of powers.

• Directs the State Council and assumes overall responsibility for the work of the

government
10
The Communist Party as Sovereign of the State

• The system of political institutions that exists in the PRC has not been fundamentally

affected by any of the constitutional revisions that until now have been enacted.

• The constitution of the PRC remains primarily a political document.

• De facto, the CCP stands above the constitution and the people: the party, and not the

people, is the sovereign of the state.

• Thus, in practice, the state constitution has limited impact regarding the formation of

political will, conflict resolution, and decision-making.

11
Overlap between Party and State Bodies

• To this day, the personnel and organizational structures of the CCP form the main

pillars of the ruling system in the PRC.

• Leading party cadres are situated at all key control points in the political system.

12
Overlap between Party and State Bodies

• In Communist government systems, the party and the state are often almost

indistinguishable from one another

• The CCP appoints personnel for leadership positions in both government and

administrative bodies

• Decisions made by government bodies must follow those guidelines established by the

parallel party committees or by the party groups ( 黨 組 ) established within the

government bodies.
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14
Overlap between Party and State Bodies

• Political control of economic administration and SOEs remained fundamentally intact by virtue of

the fact that the heads of the government authorities and the leading managers of the SOEs were
concurrently the members of the party committees, and thus they could be appointed or removed

from office within the framework of the CCP cadre system.

• When it comes to controversial issues or matters of principle, party committees continue to enjoy

a right to veto and authority to issue directives to the administration.

• Strategic areas, such as the cadre system, the judiciary and the security forces, and the military

chain of command, are still under the direct control of party bodies.

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Overlap between Party and State Bodies

• The CCP holds a particularly tight grip over the police and the armed forces.

• Today, the CCP officially represents “socialism with Chinese characteristics”, or

“Sino-Marxism” (Senger 1994), not only distancing itself from the Soviet model

but also seeking to reassess classical Marxism in terms of its significance for

China’s modernization.

16
Legal Development

17
The Development of a New Legal System
• In 1979, the National People's Congress (NPC) passed the laws which initiated the revival of the
Chinese legal system after the excesses of the Cultural Revolution (Wang, 2010).
• The areas in which these first laws were passed indicated the legal priorities of the government and
party at that time, which included:
• creating a solid government structure
• supporting economic growth through foreign investment and
• providing some degree of legal certainty for Chinese citizens.
• In 1982, the Constitution of the PRC was rewritten and reissued in the form which, with some
amendments, is still effective today.
• In 2010, the government proclaimed that the task of creation of ‘a socialist legal system with
Chinese characteristics’ had been completed (Chen, A., 2011, quoting Wu Bangguo, p 45).
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The Development of a New Legal System

• The legislative programme for both new laws and for revisions of current legislation

follows the priorities and initiatives identified in work programmes and plans laid out by

the Chinese Communist Party and in the five-year plans issued by the government

(Xinhuanet, 2016b).

• The judiciary, particularly the Supreme People's Court (SPC), is also required to

implement reforms identified in these documents.

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The Development of a New Legal System
• The power to issue laws in relation to fundamental matters under the 1982 Constitution (Articles 62 and
67) is limited to the NPC and its Standing Committee. These matters include:
• State sovereignty
• the structure and powers of courts and governments
• criminal offences
• the deprivation of political rights and restriction of freedom of citizens
• Tax and expropriation
• the civil, economic and fiscal systems
• dispute resolution systems.
• The State Council, the primary executive body of the Chinese government, may issue administrative
regulations.
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The Development of a New Legal System
• In 2001, China acceded to the World Trade Organiza7on.
• The impact on China's legisla7ve system was substan7al, as China revised its investment regime to comply with
WTO direc7ves, rethought its intellectual property regime and used WTO accession to push programmes of
economic and hence legisla7ve reform (Cohen J.A., 2001; Halverson, 2004).
• Subsequently there has been an aggressive programme of both legal revision (such as amendments to the Criminal
Law, most recently in 2015 (Standing CommiNee, 2015), to deal with the problems of the new economy, including
increasing corrup7on) and legal reform to implement major economic and social changes put through by the
government. Example include:
• the consolida7on of the tax regimes for foreign and local enterprises through the promulga7on of the Law of
the People's Republic of China on Enterprise Income Tax in 2007
• revision of the labour laws to cope with the increased mobility of workers and the rise of the private sector
through the Labour Contract Law of the PRC in 2007 (revised in 2012) and
• the revision of China's environmental laws, par7cularly the Environmental Protec7on Law in 2014 (see
generally Qin, 2015).
21
Public Participation in the Law-Making Process and the Development of the Legal System

• As part of its commitments in acceding to the World Trade Organization, the Chinese government
committed that it would publicize, in Chinese and a foreign language, generally English, its laws and
regulations on trade and investment (Bath, 2009).

• This commitment was part of a general move towards transparency in relation to the law

• The 2003 Administrative Licencing Law requires that all matters subject to administrative licencing
must be publicized online (Article 33).

• A further advance was made by the 2007 State Council Regulations on the Disclosure of
Government Information, which set out requirements for the disclosure to the public of
government information.
22
Public Participation in the Law-Making Process and the Development of the Legal System

• As a consequence of these reforms, central and local government ministries now provide a

significant amount of information online in relation to the law, including laws, regulations, and

present and future legislative proposals.

• Correspondingly, the rapid growth of the Internet in China and the tremendous growth of Chinese

participants in chat rooms and other forms of online social media have resulted in an intense online

discussion on law, the courts and the legal system as a whole.

• For example, when the draft Labour Contract Law was circulated for comment in 2007, over

191,000 submissions were received from members of the public (Cai, 2010, p. 76).
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Public Par>cipa>on in the Law-Making Process and the Development of the Legal System

• In relation to trials, access of the media to court proceedings is also inconsistent (Cheung, 2016).

• In addition, censorship of the Internet and social media is pervasive and prompt, and appears to be

increasing under the current regime in China (Creemers, 2015; Freedom House, 2016).

• When this is considered together with the increase of ideological control over universities heralded

by a 2015 party circular on strengthening propaganda and ideological training in universities

(Buckley, 2015; Communist Party Central Committee, 2015a), it seems likely that foreign

commentators and academics able to publish outside China will assume a greater role after some

years of relative openness in the Chinese debate.

24
China and the Rule of Law

• Article 5 of the Chinese Constitution was amended in 1999 to state that ‘The People's

Republic of China governs the country in accordance with law, and establishes a

socialist rule of law country’ (Wang, 2010, p. 12).

• Within China, the approach of government officials and agencies, human rights groups,

the public and academics of what constitutes the rule of law – and what the Chinese

legal and judicial system should achieve in aspiring to the rule of law – differs

substantially. 25
China and the Rule of Law
• Wang identifies as factors in the rule of law (Wang, 2010, p. 10) :

• a changing and dynamic legal system;

• principles such as supremacy, impartiality, universality and transparency of law, with a role in
checking power and guaranteeing human rights;

• the goal of limiting government power and the assurance of citizen's rights;

• and a requirement that it be built on the basis of market economy and a democratic political
system

• The idea that rule of law is important in China is generally accepted in Chinese society, despite
differences of view as to what it means, what it actually involves, and how it should be achieved.
26
China and the Rule of Law
• The Party and government also claim ownership in the concept of the rule of law and the implementation of
government in accordance with law.

• This was reiterated in 2014, when the fourth plenary session of the 18th Communist Party Central Committee
(‘Fourth Plenum') resulted in the issue of the Decision on Several Major Issues Concerning Comprehensively
Promoting Ruling the Country in Accordance with Law.

• The Decision concentrated on the comprehensive advancement of the ‘socialist rule of law with Chinese
characteristics', which involves:

1. conducting government on the basis of law;

2. improving judicial impartiality and raising credibility;

3. strengthening the notion of rule and creating a ‘rule of law’ society;

4. raising the competence of rule of law professionals and strengthening and improving the Party's leadership
over efforts to advance comprehensively the law-based governance of China. 27
China and the Rule of Law
• In particular, this includes such aspects as:
1. ruling in line with the Constitution as supervised by the NPC and its Standing Committee;
2. having a government which abides by review of major decision-making in the government;
3. transparency;
4. prevention of interference by officials in judicial cases and protection of human rights; and
5. improvement by the Communist Party of its own internal processes (Communist Party Central Committee,
2014).
• In subsequent policy documents, the significance of the rule of law and the importance of improving China's legal
environment are referred to as a necessary part of the implementation of China's strategies to improve the
business environment, open up the economy and encourage economic activity according to market conditions
• Views vary on whether there can be rule of law under the leadership of the Communist Party and – if this is
possible – whether real efforts have been made to implement it.
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The Judiciary and the Supreme People’s Court

• Over the years the SPC has become an important par4cipant in shaping the interpreta4on
and applica4on of Chinese law, as well as the procedural aspects which play a vital role in the
administra4on of jus4ce.

• However, the SPC is also an integral part of Chinese government structure and therefore plays
an important role in the interpreta4on and implementa4on of state and Communist Party
policy.

• Thus the 2015 Opinions on Comprehensively Deepening the Reform of the People's Courts,
which set out the fourth five-year reform for the courts, refer to, and are designed to
implement, Party policy.
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The Judiciary and the Supreme People’s Court

• Nevertheless, there is an inherent conflict in the legal and judicial system between:

• well thought out legal and judicial reform, which is directed towards the establishment and

operation of a fair legal and trial system, and

• the role of politics and party and government officials which significantly undermines, and in

some cases works against, the stated aspirations of the government and the courts.

à Thus, a major practical issue in the legal and judicial system for lawyers, business people and

Chinese citizens alike in China is the gap between the written law and the way in which the system

works in practice.
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Underlying Issues in the Judicial System
The Chinese courts and the judicial system are under stress in a range of ways:
1. The sheer number of cases increases every year. In 2015, the courts accepted 19,510,000 cases
and resolved 16,710,000 (Finder, 2016a; Supreme People's Court, 2016).
2. The organization of the courts, and the relationship between the courts, local government, the
Communist Party and the police and Procuratorate, present constant potential conflicts in legal
administration
• Judges are public servants and are hired, assessed and promoted in a highly bureaucratic
way.
• The President of each court is appointed by and answers to the People's Congress at the
same level and there is often significant local interference with the activities of the court.
• This problem is amplified by the ongoing issue of court funding, which has traditionally been
a matter for local government. 31
Underlying Issues in the Judicial System

The Chinese courts and the judicial system are under stress in a range of ways:

3. There is an ongoing practical problem with the concept of the leadership of the Communist

Party and the concept of judicial independence.

• A significant degree of control over the court's decisions has been exercised by the

relevant politico-legal committee of each court, backed up by the court's judicial

committee, to which decisions on difficult or controversial cases are referred (He, 2012),

and

• most judges are members of the Communist Party (Cohen, J., 2016; Fu, 2013).
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Underlying Issues in the Judicial System

• All of these issues are well known and well understood in China.

• However:
• Police and officials continue to engage in legal and illegal actions to silence criticism, which is seen
as dissent (by human rights lawyers, for example).
• Bureaucratic processes and rules (such as the imposition of quotas on judges which have the
effect of entrenching older and more reliable judges) (Cohen, J., 2016) and attacks on judges also
have an adverse impact on the courts (Zhuang, 2016).
• The extra-judicial system pursuant to which Communist Party members are detained and
investigated for offences by the Party before any matter goes before the courts (Sapio, 2008, 2015;
Wan, 2014). This system completely bypasses the Criminal Procedure Law and its procedural
protections for the 90 million members of the Party (Cohen, J., 2016).
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Underlying Issues in the Judicial System

• However:

• Government appear to be fighting a long-term battle against lawyers attempting to utilize the

opportunities in the legal and judicial system to protect procedural rights of litigants and

human rights generally. The reported use of both legal and extra-legal means to seize and

prosecute these lawyers and other persons not only indicates weakness in the legal structure,

where procedural safeguards can be so easily sidestepped, but points to the lack of

independence of the courts which conduct trials and hand out sentences (China Human

Rights Lawyers Concern Group, 2016).

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References

• Bath, V. (2018) “Legal and Judicial System”, in W. Wu & M. W. Frazier (eds) The SAGE

Handbook of Contemporary China. SAGE Publications Ltd.

• Heilmann, S. (2017) “The Chinese Communist Party and State Institutions” in China’s

Political System. Lanham, Maryland : Rowman & Littlefield.

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