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The Chinese Legal System: Continuing Commitment to the Primacy of State Power

Published online by Cambridge University Press:  12 February 2009

Pitman B. Potter
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Extract

On the 50th anniversary of the founding of the PRC, the legal system plays an increasingly significant role in social, economic and even political relationships. Legal norms drawn largely from foreign experiences have been selected and applied through a plethora of newly established institutions. The role of law as a basis for government authority has become a legitimate and significant issue in the broader political discourse. Despite these achievements, law in China remains dependent on the regime's policy goals. Particularly where political prerogatives are at stake, legal requirements appear to pose little restraint on state power. In this sense, the ten years that have passed since Tiananmen appear to have had little impact on the willingness of the party-state to dispense with legal requirements in pursuit of political expediency. If we are to rely upon Dicey's dictum on the rule of law being in effect when the state becomes just another actor, the rule of law in China still seems a distant prospect indeed.

Type
Research Article
Information
The China Quarterly , Volume 159 , September 1999 , pp. 673 - 683
Copyright
Copyright © The China Quarterly 1999

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References

1. Dicks, Anthony, “The Chinese legal system: reforms in the balance,” The China Quarterly, No. 119 (09 1989), p. 540.Google Scholar

2. “Zhongguo faxuehui zai jing zhengshi chengli” (“The China Law Society is formally established in Beijing”), Faxue yanjiu (Studies in Law), No. 5 (1982), p. 8.Google Scholar

3. See generally, Potter, Pitman B., “Riding the tiger: legitimacy and legal culture in post-Mao China,” The China Quarterly, No. 138 (06 1994), p. 325.Google Scholar

4. For a representative example, see Xinxin, Zhang and Ye, Sang, “Lawyer,” in Jenner, W. J. F. and Davin, Delia (eds.), Chinese Lives: An Oral History of Contemporary China (New York: Pantheon, 1987), pp. 189–194.Google Scholar

5. See generally, Alford, William P. and Liufang, Fang, “Legal training and education in the 1990s: an overview and assessment of China's needs,” manuscript, 1994.Google Scholar

6. Tanner, Murray Scot, “Organizations and politics in China's post-Mao law-making system,” in Potter, Pitman B. (ed.), Domestic Law Reforms in Post-Mao China (Armonk, NY: M.E. Sharpe, 1994)Google Scholar; O'Brien, Kevin, Reform Without Liberalization: The National People's Congress and the Politics of Institutional Change (New York: Cambridge University Press, 1990).CrossRefGoogle Scholar

7. “Qiao Shi's words on democracy in China,” in China News Digest (electronic media), 2 06 1997Google Scholar; “The 15th CCP National Congress closed, Qiao Shi is out,” China News Digest (electronic media), 19 09 1997.Google Scholar

8. See papers presented to the Conference on Lawmaking in the PRC, Leiden University Law Faculty, 26–28 October 1998.

9. Pei, Minxin, “Citizens vs. mandarins: administrative litigation in China,” The China Quarterly, No. 152 (12 1997), pp. 832–862.Google Scholar

10. “Tentative Regulations on the Procedure for Enacting Administrative Laws and Regulations” (Xingzheng fagui zhiding chengxu zanxing tiaoli) (State Council, 21 04 1987).Google Scholar

11. See generally, Dicks, Anthony, “Compartmentalized law and judicial restraint: an inductive view of some jurisdictional barriers to reform,”Google Scholar and Clarke, Donald C., “The execution of civil judgments in China,” both in The China Quarterly, No. 141 (03 1995).Google Scholar

12. For examples, see Yanming, Huang, “The stylization and regularizaron of the management and operation of the Chinese arbitration institute,” Journal of International Arbitration, Vol. 11, No. 2 (1994), p. 77.Google Scholar

13. Potter, Pitman B., “China's new land development regulations,” China Business Review, 03–04 1991, pp. 12–14Google Scholar; Clarke, Donald C. and Howson, Nicholas C., “Developing PRC property and real estate law: revised land registration rules,” East Asian Executive Reports, 15 04 1996, pp. 9–17.Google Scholar

14. Constitution of the PRC 1982, Art. 13.

15. Ibid., Art. 51.

16. “Zhonghua renmin gongheguo belong fa (caoan)” (“Contract Law of the PRC – draft”) (Legal Affairs Committee of NPC Standing Committee, 20 08 1998).Google Scholar

17. See generally, Potter, Pitman B., Foreign Business Law in China: Past Progress, Future Challenges (San Francisco: The 1990 Institute, 1995).Google Scholar Also see Doing Business in China (looseleaf, Interjura).

18. See generally, Leng, Shao-chuan and Chiu, Hungdah, Criminal Justice in Post-Mao China (Albany, NY: State University of NY Press, 1985)Google Scholar; Li, Victor H., “The evolution and development of the Chinese legal system,” in Lindbeck, John M. H. (ed.), China: Management of a Revolutionary Society (Seattle & London: University of Washington Press, 1971).Google Scholar

19. For general discussion of criminal justice in China under the 1980 legislation, see Clarke, Donald C. and Feinerman, James V., “Antagonistic contradictions: criminal law and human rights,” The China Quarterly, No. 141 (03 1995), p. 135.Google Scholar

20. Amnesty International, “China – punishment without trial: administrative detention,” 1981.Google Scholar

21. Hsia, Tao-tai and Zeldin, Wendy I., “Sheltering for examination (shourong shencha) in the legal system of the People's Republic of Chinā,” China Law Reporter, Vol. 7 (1992), p. 97.Google Scholar

22. Lawyer's Committee on Human Rights, “Opening to reform? An analysis of China's revised Criminal Procedure Law,” 1996, pp. 22et seq.Google Scholar

23. “Zuigao renmin fayuan guanyu zhixing ‘Zhonghua renmin gongheguo xingshi susong fa’ ruogan wenti de jieshi” (“Interpretation by the Supreme People's Court on certain issues related to the implementation of the ‘Criminal Procedure Law of the PRC’”), Zhongguofazhi bao (China Legal System Gazelle), 9 09 1998, p. 2.Google Scholar

24. See e.g. Amnesty International, “Heavy prison sentences on Chinese dissidents,” Presswire, 22 12 1998Google Scholar; Laris, Michael, “Retreating from reform: China tries two dissidents,” Washington Post, 18 12 1998.Google Scholar