Hostname: page-component-586b7cd67f-r5fsc Total loading time: 0 Render date: 2024-11-27T19:53:16.813Z Has data issue: false hasContentIssue false
  • English
  • Français

The Chinese Legal System: Reforms In The Balance

Published online by Cambridge University Press:  17 February 2009

Anthony Dicks
Get access Rights & Permissions [Opens in a new window]

Extract

Judged by almost any standard, law and the legal system in China today form part of a growth industry. Although the pace has been uneven and has at times seemed to falter, the growth has been maintained for more than a decade, since the end of the Cultural Revolution and the inauguration of the Four Modernizations. The most easily visible aspect of this phenomenon is the volume of legislation, unprecedented in any other period since 1949. The output is difficult to monitor precisely, because although the major laws and regulations issued by the National People's Congress and the organs of the central government are now for the most part regularly published, the majority of regulations issued at the ministerial or lower levels of the central government are still not published in such a way as to be easily accessible, if they are published at all; and the amount of local legislation which filters out of the area in which it applies is still limited.

Type
Research Article
Information
The China Quarterly , Volume 119 , September 1989 , pp. 540 - 576
Copyright
Copyright © The China Quarterly 1989

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. For an account of legal developments since the death of Mao Zedong in a historical context, see Gellhorn, W., “China's quest for legal modernity,” Journal of Chinese Law, Vol. 1 (1987), pp. 1–22.Google Scholar A more detailed account of the earlier stages is given in Lubman, S.B., “Emerging functions of formal legal institutions in China's modernization,” China Law Reporter, Vol. 2 (1983), pp. 195–266.Google Scholar

2. Since 1979 the distinction has been more carefully preserved than in previous periods between “laws” (fa or falu) enacted either by the National People's Congress (NPC) or by its Standing Committee and promulgated by decree of the president of the People's Republic on one hand, and various types of subordinate legislation, issued and promulgated by various administrative and judicial agencies on the other. Both have the force of law, but the latter are in many instances controlled by the former. The former are published, often with an explanatory speech, in Zhonghua renmin gongheguo quanguo renmin daibiao dahui changwu weiyuanhui gongbao (Gazette of the Standing Committee of the NPC; hereafter NPC Gazette). The latter, of which the most authoritative are the tiaoli (ordinances, i.e. laws enacted by executive decree) and jueding (resolutions or decisions) of the State Council, many of which are published in Zhonghua renmin gongheguo guowuyuan gongbao (Gazette of the State Council; hereafter SC Gazette), also include the various regulations made by ministries, most of which are not published in any regular manner and many of which are in effect secret.

3. The problem of secret legislation, rooted in the history of the Chinese legal system in imperial times, continues to exert a baneful influence on the confidence and respect with which the system is now regarded; see further on this question A.R. Dicks, “A legal opinion,” China Trade Report (CTR), July 1982, p. 11. A recent announcement that the State Council would discontinue the practice of issuing some regulations secretly with special red printed headings and will instead promulgate them all publicly can only be welcomed, but it would be unduly optimistic to assume that this feature of the system is obsolete, particularly in relation to the judicial system. See “Restricted label erased from regs,” China Daily, 18 November 1988.

4. The size of the submerged part of this iceberg may be estimated from a recent statement by the director of the Bureau of Legislation under the State Council, that in the course of a re–examination of laws and regulations relating merely to foreign trade and investment started in February 1988, 502 laws and regulations promulgated or approved by the State Council had been examined; local laws and regulations relating to foreign investment and foreign trade issued by governments at the provincial or equivalent level amounted to 2,000. See China Economic News, 26 December 1988, pp. 3–4 and 14.

5. A prominent representative of the increasing number of self–taught lawyers is Wan Shaofen, who in 1986 became the first woman to be appointed a provincial secretary of the Chinese Communist Party. After graduating from university in economics she “later went on to study law on her own and became a certified lawyer in 1984”; Wu Naitao, “Jiangxi appoints woman Party secretary,” Beijing Review, 3 March 1986, p. 14. It is not clear whether this qualification assisted in her promotion, which gives her membership of the Central Committee.

6. On the revival of legal research, see Shouyi, Chen, “A review of thirty years of legal studies in new China,” Journal of Chinese Law, Vol. 2 (1988), pp. 181–200.Google Scholar

7. Gellhorn, “China's quest for legal modernity,” pp. 9–10.

8. For an excellent survey of recent developments in legal publishing see Sidel, M., “Recent and noteworthy legal works published in China,” Journal of Chinese Law, Vol. 1 (1987), pp. 251–69.Google Scholar

9. Considerable financial resources must have been devoted to the developments referred to above, though no precise figures appear to be available.

10. Constitution of the People's Republic of China, adopted at the Fifth Session of the Fifth National People's Congress and promulgated for implementation by proclamation of the National People's Congress on 4 December 1982 (Laws of the People's Republic of China (Beijing: Foreign Languages Press, 1987), Vol. I, No. 6; hereafter cited as Laws).Google Scholar

11. For the corresponding revision of the Party statutes, see Dicks, “A legal opinion,” CTR, October 1982, p. 13.

12. Chen Shouyi, “A review of thirty years,” at p. 184 and pp. 194–96.

13. Thus the Party retains the Central Commission on Political and Legal Affairs; see China Directory 1988 (Tokyo: Radiopress, 1988), p. A25, for details of current membership. As to continued Party responsibility in this field, at the provincial level, see the article by John Burns in this issue of The China Quarterly.Google Scholar

14. Supra, fn. 10. At a more practical level, violation of a state policy, as well as a law, is sufficient to render an economic contract void; Law on Economic Contracts of the People's Republic of China, adopted by the NPC on 13 December 1981 (Laws, Vol. I, p. 219), Art. 7(1).

15. Chen Shouyi, “A review of thirty years,” esp. pp. 196–97. It will be suggested below that there may now be implicit in the law a sufficiently strong element of independent legal thought to jeopardize the totality of Party control in this sense, but the principle stated in the text would seem to be in line with orthodox thinking, as expressed, e.g., by Professor Chen.

16. Adopted by the First Plenary Session of the Chinese People's Political Consultative Conference, 29 September 1949 (Text in 1 Zhongyang renmin zhengfu faling huibian (FLHB) (1949–1950), pp. 16–25; for a translation see Blaustein, A.P. (ed.), Fundamental Legal Documents of Communist China (South Hackensack N.J.: Rothman, 1962, pp. 34–53).Google Scholar Together with the Organic Law of the Central People's Government of the People's Republic of China (adopted by the conference on the same date) (Text, in 1. FLHB, pp. 1–8; for translation, see Blaustein, , Fundamental Legal Documents, pp. 104–114) the Common Programme served as the provisional constitution of the People's Republic until the adoption of the (first) Constitution of the People's Republic of China, on 20 September 1954 (text in 1 Zhonghua renmin gongheguo fagui huibian (FGHB) (1954), pp. 4–31; translation in Blaustein, Fundamental Legal Documents, pp. 3–33).Google Scholar

17. Blaustein, Fundamental Legal Documents, p. 41. This provision, which appears to have been given the widest possible interpretation by the Chinese courts subsequently established, had the immediate effect of drawing a sharp distinction between Chinese legal practices and those of the rest of the communist world of that period. Whereas the newly–established communist governments of East Europe (except for Yugoslavia) contented themselves with making necessary amendments to their existing systems of law, while retaining the basic structure of the old systems, the Chinese approach required a completely fresh start. In a sense a parallel may be drawn between the Chinese approach and the measures adopted by the Bolsheviks immediately after seizing power in Russia in 1917. The latter not only abolished the existing laws and judicial system, but established new forms of courts, with no laws or formal procedures, which were required to judge cases according to revolutionary conscience, the socialist feeling of justice and the interests of the workers’ and peasants’ governments (J.N. Hazard, Settling Disputes in Soviet Society: the Formative Years of Legal Institutions (1960)). However, this short–lived period in the Russian experience seems to have been the result of a combination of naiveté, revolutionary zeal and absence of planning rather than of any deliberate policy. The technique adopted by the Soviet client communist parties in Eastern Europe after 1945 no doubt reflects the views of Russian legal administrators on the wisdom of repeating their own earlier experience.

18. Note the prominence given to this question by Chen Shouyi writing in 1979, “A review of thirty years.” Several instances could be given from the early legislation of the People's Republic of wholesale transplants (sometimes word for word) from particular parts of the Republican laws, notwithstanding the sweeping condemnatory language of Art. 17. More recently, textbooks from Taiwan on various topics of Republican law have been much sought after by scholars in the Mainland.

19. The ghosts of the past are gradually being laid, nevertheless; at least one history of the law of the Republican period has been published. See Guofu, Zhang. Zhonghua minguo fazhi jianshi (A Concise History of the Legal System of the Republic of China) (Beijing: Beijing University Press, 1986).Google Scholar

20. This is particularly true of the promulgation between 1979 and 1986 of the four major codes on which work was started in the 1950s and which are discussed below.

21. E.g., credit co–operatives, private enterprises, trust and investment companies, and the use of securities for lending, to name but a few.

22. “In past years, partners to joint ventures enjoyed a honeymoon. Now they quarrel and some of them unfortunately come to divorce”—Tang Houzhi, vice–chairman of the China International Economic and Trade Arbitration Commission (CIETAC) of the China Council for the Promotion of International Trade (CCPIT), quoted by Reuter, in “Chinese ventures turn to bitterness,” The Times (London), 25 November 1988. At the time of his statement the 250 cases then being handled by the commission were said to represent double the number in the previous year.Google Scholar

23. This new approach was both typified and at the same time greatly stimulated by the publicity given to the “Bohai No. 2” disaster and the subsequent investigations of criminal and administrative responsibility. The destruction of the oil rig with the loss of 72 lives occurred on 25 November 1979; for the official response, see Decision of the State Council regarding Disposal of the “Bohai No. 2” Casualty, 25 August 1980 in SC Gazette, No. 10 (1980), p. 295.

24. Infra, text at fn. 138.

25. Common Programme, supra, fn. 16, Art. 1.

26. Laws, Vol. I, p. 4.

27. Ibid. p. 6.

28. Passed on 4 August 1950; promulgated on 20 August 1950 ([1949–50] FLHB, pp. 73–90; Blaustein, Fundamental Legal Documents, pp. 291–324). There were numerous supplementary and explanatory regulations, many of a local character to enable the broad principles of class designation to be applied in atypical situations.

29. In some non–agricultural contexts the material basis of class differentiation was better preserved, e.g. by the “fixed interest” payments made to the national capitalists following the expropriation of their businesses in the socialist transformation of commerce and industry in the 1950s.

30. E.g., into the field of marriage law, where the significance of class status has been explored in depth in Meijer, M.J., Marriage Law and Policy in the Chinese People's Republic (Hong Kong: Hong Kong University Press, 1971).Google Scholar

31. Constitution (1982), supra, fn. 10, Art. 1. Within this category (which is not precisely reproduced in the classifications of the Criminal Law) there are many sub–categories of behaviour which merit different degrees of dictatorial response. These range from grave though ill–defined crimes such as counter–revolutionary conduct to relatively minor offences.

32. This is particularly obvious in some cases of mass demonstration, even where these are in themselves peaceful. This seems to emerge from the descriptions of measures taken in recent months by the people's armed police to suppress demonstrations in Tibet, which have resulted in a number of deaths for which the gendarmerie are apparently not held in any way to account. See C. Meindersma and R. Schwartz, “China fires on Tibetan hopes,” Asia Wall Street Journal, 29 December 1988, for an account of the shooting of unarmed demonstrators in Lhasa on 10 December 1988 (International Human Rights Day) by eye–witnesses, the first named of whom was herself wounded by a bullet. There is little outward sign of the discharge by the procuracy of its statutory obligation to investigate violations of the law in cases of this kind. In theory the man who pulls the trigger in such circumstances, if he is ever identified, can be the object of a private prosecution by the relatives of the dead man, but in the absence of some assistance from the investigative authorities it would probably be futile to pursue such a course. Policy is apparently a sufficient legal justification for these fatalities.

33. Laws, Vol. I, p. 7.

34. Hongqi (Red Flag), 16 September 1984, quoted in Seymour, J.D., China Rights Annals I: Human Rights Developments in the People's Republic of China from October 1983 Through September 1984 (Armonk, N.Y. and London: M.E. Sharpe, 1985), pp. 34–35. The total ban on discussion of human rights in academic writing was removed in 1986.Google Scholar

35. E.g., the Convention on the Elimination of All Forms of Racial Discrimination, adopted in 1965; for Chinese accession (subject to a reservation as to the compulsory jurisdiction of the International Court of Justice under Art. 22), see SC Gazette, No. 25 (1981), pp. 783 and 795.

36. Drafted by the UN Commission on Human Rights, 1954; adopted by the General Assembly, 1966; for details, see Sieghart, P., The International Law of Human Rights (Oxford: Clarendon Press, 1983), p. 25. Chinese observers attend some of the meetings at which the operation of the Covenant is monitored.Google Scholar

37. The subject of human rights law finds no place in current students’ textbooks of public international law: see, e.g., Hungdah Chiu, review of Shen Yu and Wei Jiajia, Guojifa xin lingyu jianlun (A Concise Introduction to New Areas of International Law) in American Journal of International Law, Vol. 82 (1988), pp. 892–93.CrossRefGoogle Scholar

38. New China News Agency (NCNA), 3 December 1988, quoted in South China Morning Post, 5 December 1988.

39. .Ibid. In Lhasa it was marked by an apparently peaceful demonstration broken up by police action which left at least six and possibly as many as 18 persons dead: supra, fn. 32.

40. E.g., Ma Jun, “The principal human rights organs of the United Nations,” Fazhi ribao (Legal Daily), 2 December 1988 and 5 December 1988.

41. The well–known scientist and activist Fang Lizhi sent a letter requesting an amnesty for the numerous dissidents still in prison who participated in the pro–democracy “Beijing Spring” movement in 1979: Seth Faison, “Chinese activist seeks amnesty for dissidents,” South China Morning Post, 10 January 1989. A few weeks later a petition sponsored by many well–known academics and intellectuals was opened for signature: Marlowe Hood, “Dissident academics challenge the Party,” Ibid. 17 February 1989.

42. For a careful analysis of many of the procedural issues raised by the new approach to the criminal process, see Gellatt, T., “The People's Republic of China and the presumption of innocence,” Journal of Criminal Law and Criminology, Vol. 73 (1982), pp. 259–316.CrossRefGoogle Scholar

43. Supra, fn. 10.

44. Adopted by the Second Session of the Fifth NPC on 1 July 1979 (Laws, Vol. I, p. 87).

45. Adopted by the Second Session of the Fifth NPC on 1 July 1979 (Laws, Vol. I, p. 120).

46. The Criminal Law as adopted in 1979 was the 33rd draft of a criminal code; there is little doubt that some at least of the earlier drafts were used by the courts even though unpublished.

47. Decision of the Standing Committee of the NPC Regarding the Severe Punishment of Criminals Who Seriously Endanger Public Security, adopted on 2 September 1983 (Laws, Vol. II, pp. 32–33).

48. As a result, in part, of the numbers involved, the Standing Committee and the Supreme People's Court had already adopted special rules in 1981 inter alia to enable the Supreme People's Court to delegate its power of review to the superior courts at the provincial level: Decision of the Standing Committee of the NPC Regarding the Question of Approval of Cases Involving Death Sentences, adopted by the 19th session of the Standing Committee of the Fifth NPC on 10 June 1981; Chinese and English texts in the The Criminal Law and Criminal Procedure of China (Beijing: Foreign Languages Press, 1984), pp. 217 and 219.Google Scholar On the subject of the death penalty generally, see Davis, S.B.,‘The death penalty and legal reform in the PRC,” Journal of Chinese Law, Vol. 1 (1987), pp. 303–334.Google Scholar

49. Cf. Gellatt, “The presumption of innocence,” p. 310, fn 320; Lubman, “Emerging functions,” pp. 216–19.

50. See Chen Quansheng, “A discussion of the reform of the lawyer system,” Faxue zazhi (Law Magazine), No. 5 (1988), p. 46.

51. It seems to have been no coincidence that at the same time as China first opened the door to foreign investment, the number of offences for which the death penalty was possible was reduced in the Criminal Law: see Zhen, Peng, “Explanations of the Seven Draft Laws,” delivered to the Second Session of the Fifth National People's Congress, 26 June 1979 (Laws, Vol. I, pp. 420, 424–25). On the same principle the power of the Supreme Court to review all such sentences was restored on the same occasion:Google ScholarIbid. However, this aspect of the reforms must be seen in the light of the later developments mentioned supra, fns. 47 and 48.

52. Contrast the position in the Soviet Union, where policies of leniency have apparently started to gain ground, a recent government statement having promised a reduction in capital offences and abolition of the sentence of exile: Dejevsky, Mary, “Kremlin moves towards death penalty abolition,” The Times (London), 19 December 1988.Google Scholar

53. Even the Cultural Revolution spawned a certain amount of legislation in this as in other fields, although the texts of these hitherto secret statutes have only begun to emerge in piecemeal fashion.

54. See, e.g., Moser, M. (ed.), Foreign Trade, Investment and the Law in the People's Republic of China (Hong Kong: Oxford U.P., 1987; 2nd edit.);Google ScholarTai, William (ed.), Legal Aspects of Foreign Investment in the PRC (Hong Kong: China Trade Translation, 1988).Google Scholar

55. E.g., the so–called “22 Points” adopted in the autumn of 1987. For a recent indication of possible further concessions to foreign opinion, see “China to re–examine laws to improve investment climate,” China Economic News, 26 December 1988, pp. 3–4.

56. It must be borne in mind that much of the difference in opinion on fair investment terms as between China and her western trading partners can be explained in terms of monetary value, but there are also numerous uncertainties of a purely legal kind which businessmen find difficult to accept.

57. Supra, fn. 22; for a Chinese perspective on one such case, see Yao Jianguo, “The collapse of a joint venture,” Beijing Review, 29 February 1988, pp. 20–21.

58. Organic Law of the Local People's Congresses and Local People's Government of the People's Republic of China, adopted by the NPC on 1 July 1979 (Laws, Vol. I, pp. 50–61), amended 1982 (Ibid. pp. 368–80) and 1986 (Laws, Vol. II, pp. 328–58).

59. Organic Law of the People's Courts of the People's Republic of China, adopted by the NPC on 1 July 1979 (Laws, Vol. I, pp. 71–79), amended 1983 (Laws, Vol. II, pp. 37–46).

60. Organic Law of the People's Procuratorates of the People's Republic of China, adopted by the NPC on 1 July 1979 (Laws, Vol. I, pp. 80–86), amended 1983 (Laws, Vol. II, pp. 47–54).

61. Electoral Law of the NPC and Local People's Congresses of the People's Republic of China, adopted by the NPC 1 July 1979 (Laws, Vol. I, pp. 62–70), amended 1982 (Ibid. pp. 383–92) and 1986 (Laws, Vol. II, pp. 313–27).

62. Supra, fn. 44.

63. Supra, fn. 45.

64. Adopted by the NPC on 1 July 1979 (Laws, Vol. I, pp. 150–53).

65. Many of the numerous laws and regulations in this field are conveniently collected in a series of bilingual texts under the title China's Foreign Economic Legislation (Beijing: Foreign Languages Press, 1982 (Vol. I), 1986 (Vol. II) and 1987 (Vol. III); hereafter Foreign Economic Legislation).Google Scholar

66. E.g., the Law on Foreign Economic Contracts of the People's Republic of China, promulgated on 21 March 1985 (Laws, Vol. II, pp. 162–68); Provisions of the Shenzhen Special Economic Zone on Economic Contracts Involving Foreign Interests, adopted 11 January 1984 (Foreign Economic Legislation, Vol. III, pp. 305–319).Google Scholar

67. Infra, text at fn. 90–93.

68. See T.A. Gellatt and R.D. Pomp, “China's tax system: an overview and transactional analysis,” in Moser, Foreign Trade, pp. 42–89; also Hu Zhishiu, “China's foreign tax law will facilitate the introduction of foreign investment,” in Tai (ed.), Legal Aspects, pp. 13–25.

69. Provisional Regulations for the Control of Foreign Trade, promulgated on 9 December 1950 (1 FLHB, pp. 337–38).

70. Trademark Law of the People's Republic of China, adopted by the Standing Committee of the NPC on 23 August 1982 (Laws, Vol. I, pp. 305–312; Foreign Economic Legislation, Vol. II, pp. 163–73);Google Scholar Rules for the Implementation of the Trademark Law of the People's Republic of China, promulgated on 10 March 1983 (Ibid. pp. 184–192); see also J.T.H. Chang and C.J. Conroy, “Trade–mark Law in the PRC,” in Moser, Foreign Trade, pp. 427–52.

71. Patent Law of the People's Republic of China, adopted by the Standing Committee of the NPC on 12 March 1984 (Laws, Vol. II, pp. 65–76; Foreign Economic Legislation, Vol. III, pp. 187–205);Google Scholar Regulations for the Implementation of the Patent Law of the People's Republic of China, promulgated on 19 January 1985 (Pendleton, M.D., Intellectual Property Law in the PRC (Singapore: Butterworths, 1986, pp. 95–117)); see also Ren Jianxin, “Protection of intellectual property under the legal system of China,” in Tai, Legal Aspects, pp. 2–12; M. J. Moser and D. Y. W. Ho, “The registration and protection of patents in China,” in Moser, Foreign Trade, pp. 453–74.Google Scholar

72. Cf. Ren Jianxin, “Protection of intellectual property,” pp. 11–12.

73. Now incorporated into the preamble of the current Constitution (supra, fn. 10) as modernization of China's industry, agriculture, national defence and science and technology (Laws, Vol. I, p. 4).

74. As to the meaning of this expression, see Zheng, H. R., China's Civil and Commercial Law (Singapore: Butterworths, 1988), pp. 15–18.Google Scholar For an excellent survey of this field, see Lichtenstein, Natalie G., “Legal implications of China's economic reforms,” ICSID Review—Foreign Investment Law Journal, Vol. 1 (1986), pp. 289–326.CrossRefGoogle Scholar

75. The complexity of the process of developing this web of inter–related legislation is described by Yao Xiaoying and Yu Meisun, “On building a complete system of economic legislation,” Faxue yanjiu (Study in Law), No. 4 (1988), pp. 66–69.

76. A rule which in some respects is analogous was found in the legal systems of some traditional monarchies (e.g. China before 1911), viz. that all land is owned by the crown. In England, where such a rule continues to exist as a sort of legal fiction, it has long ceased to express the important political value which it symbolized in 1066.

77. As such rights develop over a long period they may be only nominally inferior to ownership, as in the case of the English freehold or, to a lesser extent, the “common tenure” (mintian) of traditional China, as to which see Jamieson, G., Chinese Family and Commercial Law (Shanghai: Kelly and Walsh, 1921), pp. 90 ff.Google Scholar

78. Adopted by the NPC on 12 April 1986 (Laws, Vol. II, pp. 225–49; for a better, annotated translation, see Gray, W. and Zheng, H. R., “General principles of civil law of the PRC,” American Journal of Comparative Law, Vol. 34 (1986), pp. 715–43), Art. 71. Property rights in general are the subject matter of Arts 71 to 83 inclusive.CrossRefGoogle Scholar

79. See, e.g., the collection in Zhongguo nongcun fagui (1983) (The Agricultural and Rural Legislation of China (1983)), compiled by the Editorial Department of the China Agricultural Yearbook (Beijing: Agricultural Publishing House, 1985) and the similar volume for 1984 (published 1986).Google Scholar

80. For a model contract, complete with provisions for the reference of disputes to the economic division of the local court, see Crook, F. W., “The Baogan daihu incentive system: translation and analysis of a model contract,” The China Quarterly (CQ), No. 102 (1985), pp. 291–303. An endeavour to ensure that contracts of this kind conform to standards both of legal cogency and economic policy has been made by the widespread use of notarial offices (and sometimes lawyers) in their preparation, as described in numerous articles in legal periodicals from 1982 onwards.CrossRefGoogle Scholar

81. H. R.Zheng, China's Civil and Commercial Law, pp. 315–30, where many of the statutory developments of recent years are referred to. The text must be read in the light of subsequent developments, however–see infra, fns 83 and 85. On the crucial question of the role of the Communist Party in enterprise management, see also Chamberlain, H. B., “Party–management relations in Chinese industries: some political dimensions of economic reform,” CQ, No. 112 (1987), pp. 631–61.CrossRefGoogle Scholar

82. Provisional Ordinance of the People's Republic of China on Private Enterprises, promulgated by the State Council on 25 June 1988 (SC Gazette, No. 15 (1988), pp. 483–89), Art. 6. The other available forms of private enterprise are sole proprietorships and partnerships. The “provisional” character of this statute, and the fact that it is an “ordinance” rather than a “law” enacted by the NPC, are doubtless intended to make the formal re–introduction of a system of private enterprise (the very name of which was until recently eschewed in favour of such expressions as “collective” or “individual household”) less unpalatable to defenders of Marxist–Leninist orthodoxy. On the development of this branch of the economy, see Chao, H. and Xiaoping, Yang, “Private enterprise in China: the developing law of collective enterprise,” International Lawyer, Vol. 19 (1985), pp. 1215–237;Google Scholar also Epstein, E. J. and Lin, Ye, “Individual enterprise in contemporary urban China,” International Lawyer, Vol. 21 (1987), pp. 397–436.Google Scholar

83. These now consist of the following categories: (i) enterprises owned by the whole people; (ii) collective enterprises; (iii) joint enterprises (i.e. those of mixed ownership); (iv) Chinese–foreign equity joint ventures and co–operative joint ventures, and foreign–owned enterprises established in China; (v) private enterprises; and (vi) other enterprises as required by law: see Regulations for the Administration of the Registration of Enterprises as Juridical Persons, promulgated by the State Council on 3 June 1988 (SC Gazette, No. 13 (1988), pp. 419–426), Art. 2.

84. Ibid. Art. 6.

85. H. R. Zheng, China's Civil and Commercial Law. See now the Law on Industrial Enterprises Owned by the Whole People, adopted by the NPC on 13 April 1988 (NPC Gazette, No. 3 (1988), pp. 80–88), which replaces the Interim Ordinance on Industrial Enterprises under State Ownership of 1 April 1983 (SC Gazette No. 8 (1983), pp. 268–77) referred to by H. R. Zheng, China's Civil and Commercial Law, p. 315, fn. 36.Google Scholar

86. See Zhou Xiaochuan, “Contract system in China's enterprises,” Beijing Review, 4 April 1988, pp. 18–19, for an account of this “enterprise contract responsibility system.”

87. This does not necessarily imply private shareholding; in many instances shares are owned by other enterprises or by local governments; in other cases they are made available only to workers in the enterprise. The number of general public issues is still rather small.

88. Law of the People's Republic of China on the Bankruptcy of Enterprises (for Trial Implementation), adopted by the Standing Committe of the NPC on 2 December 1986 (Laws, Vol. II, pp. 289–97). No doubt as a result both of the controversy which surrounded its introduction and of the unpopularity of highly publicized measures leading to unemployment, very few formal adjudications have taken place in the state sector (to which this law applied). More usually, insolvent enterprises are either quietly closed down, taken over by other enterprises, or in suitable cases re–financed by an increasingly sophisticated range of devices including, e.g., the factoring of receivables.

89. In the face of the economic crisis in late 1988 it has been said that no more issues of shares would be allowed for two years. “No public assets are being allowed to turn into private property, and no state properties are being distributed to individuals in the name of the shareholding system.” On the other hand, the “enterprise contract responsibility system” (supra, fn. 86) would be further developed: Zhang Vanning, vice–minister of the State Commission for Restructuring of the Economy, quoted by the Xinhua News Agency as reported in “China freezes new share issues,” Asia Wall Street Journal, 21 February 1989. In view of the pressures in favour of share issues there must be some doubt whether this restriction will be maintained.

90. Adopted by the NPC on 13th December 1981 (Laws, Vol. I, pp. 219–236); H. R. Zheng, China's Civil and Commercial Law, pp. 45–84.

91. A good though not complete collection of texts dating from 1950 and embracing the recent law will be found in Wang Zhong, Li Quanyi and Zhou Zhiyuan (comps), Jingji hetongfa shouce (A Handbook of the Law of Economic Contracts) (Changchun: Jilin University Publishing House, 1984).Google Scholar Translations of the Economic Contract Law of 1981 (supra, fn. 90) and some of the more recent laws, regulations and forms bearing on the subject have been gathered in Cohen, J. A., Chan, Y. Y. F. and Ho, Y. M. (comps), Contract Laws of the People's Republic of China (Hong Kong; Longmans, 1988).Google Scholar

92. The network of statutes containing price controls, both local and national in scope, many of which are supported by severe penalties for the crime of “speculation,” probably constitutes the most important limitation on contractual freedom in China.

93. One administrative control which seems likely to diminish in importance is the supervision of performance by the banks, both because of the impending changes in the contractual settlement system announced in 1988 and also because of the changes in the nature of the banks themselves. See Notice of the General Department of the State Council Transmitting the Report of the People's Bank of China Regarding the Reform of Bank Settlements (SC Gazette, No. 18 (1988), pp. 595–600).

94. Supra, fn. 78.

95. It is also an event of some symbolic importance to the legal side of China's intellectual life, for, quite apart from other more practical considerations, it finally meets the criticisms made by those later condemned as “bourgeois” jurists during the “Hundred Flowers” movement.

96. The first such occasion, following the Boxer Rebellion in the last days of the Qing, was directed both to internal reform and to the hope of persuading the foreign powers to surrender their extraterritorial privileges in China. This process, with the same objectives, was repeated (or in a sense continued) in the early Republican period following the Revolution of 1911. Thirdly, after the Nationalist Party came to power in 1927, a more thorough–going modernization of the legal system along western lines was undertaken. Lastly, following the victory of the Communists in 1949, there was a further reception of western law, in this instance the socialist law of the Soviet Union.

97. Some other substantive provisions which appeared in earlier drafts were omitted from the final version. The most obvious part of the civil law which has been omitted is the law of succession, now contained in the Law of Succession of the People's Republic of China, passed by the NPC on 10 April 1985 (Laws, Vol. II, pp. 169–175). Marriage law, though part of the civil code of many countries, has never been considered to be a part of Chinese civil law since 1949. On the history of the General Principles, see H. R. Zheng, China's Civil and Commercial Law, pp. 19–24, and on the contents see pp. 24–44 et passim. For an earlier draft, see Jones, W. C., “A translation of the fourth draft civil code (June 1982) of the PRC,” Rev. of Socialist Law, Vol. 10 (1984), pp. 193–257.CrossRefGoogle Scholar

98. See, e.g., Zhonghua renmin gongheguo minfa jiben wenti (Basic Problems of the Civil Law of the PRC) (Beijing: Legal Publishing House, 1958; transl. in the JPRS series, JPRS No. 4879, 15 August 1961), passim.Google Scholar

99. The new statute thus demonstrates that although the Nationalist Civil Code has been abolished many of the rules of which it is made up are in themselves eminently acceptable.

100. As more of the legal materials from the Chinese Soviet Areas of the 1930s and 1940s are published it becomes clear that established if not particularly sophisticated procedures for resolving civil as well as criminal disputes already existed at an early date in communist history. It was, after all, a veteran judicial worker with many years experience on the bench in the Red areas before 1949, Jia Qian, who led the attack on the Communist Party's interference in the administration of justice in the “Hundred Flowers” period in 1957: Hsia, T. T., Guide to Selected Legal Sources of Mainland China (Washington, D.C.: Library of Congress, 1967), p. 16.Google Scholar

101. Supra, fn. 16.

102. For instances from earlier periods of procedural statutes directly affecting foreigners in which secret regulations have contained provisions expressly prohibiting divulgence of the existence of the statute in question see Valk, M. H. Van der, “Documents concerning the law of succession of foreigners in Communist China,” Nederlands Tijdschrift voor Internationaal Recht, Vol. 7 (1960), p. 191;Google ScholarDicks, A. R., “Some problems of maritime law,” in Cohen, J. A. (ed.), Legal Aspects of Doing Business in China 1983 (New York: Practising Law Institute, 1983), pp. 331–71 at 363–65.Google Scholar

103. Among the exceptions were the texts of the regulations which established statutory bodies with jurisdiction over maritime casualties and some of the procedural rules made under them.

104. What purported to be judicial decisions were in some cases merely the decisions of Party officials: Chen Shouyi, “A review of thirty years,” p. 184. For the exposure by the Chinese press of an apparently common practice of equipping Party functionaries with blank paper bearing judicial seals on which they could write their own “judgments,” see Seymour, China Rights Annals 1, p. 35.

105. This consideration appears to have been of particular importance in the Cultural Revolution period.

106. Supra, fn. 3. This is doubtless one of the “taboos” created by the excessive politicization of legal studies described by Chen Shouyi, “A review of thirty years,” pp. 185–86.

107. The more recent publication of a draft statute to regulate the procedure of courts in administrative cases is dealt with below.

108. Adopted by the Standing Committee of the NPC on 8 March 1982 (Laws, Vol. I, pp. 259–95).

109. It also provides for certain specialized types of litigation, including proceedings to determine electoral registration disputes, questions of civil capacity when this is in doubt as a result of insanity or other disability, and questions of title to property.

110. See below.

111. On this, see Lubman, S.: “Mao and mediation: politics and dispute resolution in Communist China,” Californian Law Review, Vol. 55 (1967), pp. 1284–359;CrossRefGoogle ScholarPalmer, M., “The revival of mediation in the People's Republic of China: (1) extra–judicial mediation,” in Butler, W. (ed.), Yearbook on Socialist Legal Systems (1987) (Dobbs Ferry: Transnational Publishers, 1988), pp. 219–77, and the second part of the same article (forthcoming).Google Scholar The prevalence of mediation both inside and outside the courts has been a source of pride among many Chinese lawyers, and is officially regarded as one of the “Chinese characteristics” of the legal system. For a Chinese account, see, e.g., Han Yue, Wang Yan and Yang Xiaobing, “People's mediation unique to China,” Beijing Review, 30 November 1987, pp. 15–17; however, this belief in the efficacy of mediation is now under challenge; see, e.g., Shangheng, Huang, “In civil litigation the‘Emphasis on Mediation’ should be changed to‘Emphasis on Adjudication,’” Zhengzhi yu falu (Political Science and Law), No. 5 (1988), pp. 58–59; see also infra, fn. 143.Google Scholar

112. The procedure is regulated by the Ordinance of the People's Republic of China on the Arbitration of Economic Contracts, promulgated on 22 August 1983 (Foreign Economic Legislation, Vol. II, pp. 244–55).Google Scholar

113. Provisional Ordinance of the People's Republic of China for the Control of Banks, promulgated on 7 January 1986 (SC Gazette, No. 1 (1986), pp. 3–10 at 4), Art. 10.

114. “Two counties go to war over timber,” U.P.I, report in South China Morning Post, 15 September 1988. Boundary disputes as such have hitherto been subject to a consultation process failing which the people's government at the next higher level made a decision, under the Procedures for the Settlement of Disputes over the Borders of Administrative Areas, promulgated on 30 May 1981 (SC Gazette, No. 12 (1981), pp. 374–75), but the latter were replaced on 2 February 1989, by a new text not available at the time of writing. An important water dispute between two provinces on the other hand was referred to unidentified “legal authorities” in December 1981: Dicks, “A legal opinion,” CTR, June 1982, p. 11.

115. A special quasi–international body has also been established in recent months to deal with commercial disputes involving parties in China and Taiwan; its awards are not as yet legally binding. Linda Yeung: “Taiwan and China form trade body,” South China Morning Post, 29 October 1988.

116. As to the CIETAC, see supra, fn. 22. New names, procedural rules and scales of fees were adopted for both the CIETAC and the CMAC on 12 September 1988: SC Gazette, No. 22 (1988), pp. 722–29 and 729–35 respectively. One of the principal features of the new rules is the appointment of foreign as well as Chinese members of the panels from which arbitrators are chosen. For the CIETAC text in English, see China Economic News, 31 October 1988, pp. 8–9; and 7 November 1988, pp. 7–9.

117. The establishment of a new centre for training of senior judges in Beijing on 13 September 1988 is no doubt in part intended to remedy this problem, of which the current president of the Supreme People's Court, Mr Ren Jianxin, as a former director of the Legal Affairs Department of the CCPIT, must be well aware: Li Haibo, “China trains high–level judges,” Beijing Review, 3 October 1988, pp. 8–9.

118. Arts 192–195.

119. Supra, fn. 116, Arts 36 and 38; see also Art. 13.

120. Industrial Resources Co. Inc. v China National Technical Import and Export Corporation (1988), 2, China Law and Practice, No. 7, p. 26; an appeal was dismissed on grounds that are not wholly clear, but probably because the contract was rendered void by the fraud: Ibid. No. 9, p. 29.

121. See, e.g., Wesley McDade, “Steel fraud case casts a shadow on China trade,” South China Sunday Morning Post, 23 October 1988.

122. NPC Gazette, No. 7 (1986), p. 157.Google Scholar For the Chinese text of the Convention, Ibid. pp. 157–62.

123. The argument turns on the provisions of Art. II of the New York Convention, which appears to treat an arbitration clause as a separate contract from the main contract of which it forms part. The Chinese argument presumably is that neither contract ever existed because of the fraud.

124. For another case in which the Chinese court refused to enforce an arbitration clause on grounds of fraud (in very much less favourable political circumstances) see the Vickers–Zimmer Case (1968), discussed in Dicks, A. R., “The People's Republic of China,” in Starr, R (ed.), East–West Business Transactions (New York: Praeger, 1974), pp. 391–446 at pp. 432–34. The plantiff in that case also was China National Technical Import Corporation, as it was then named.Google Scholar

125. For the purposes of enforcement through the execution processes of the people's courts various extra–judicial documents are approximated to judgments: these include written agreements entered into as a result of mediation (whether in or out of court), awards of economic contract arbitration bodies, certain notarial acts, awards of the CIETAC and CMAC, foreign arbitral awards and foreign judgments.

126. A similar method can be used in respect of individuals or unincorporated enterprises if they have accounts at banks.

127. For an example of the numerous cases in which the assistance of public security bureaus has had to be obtained to effect execution, in this instance re–possession after judgment in favour of a housing authority, see Zhongguo fazhi bao (China Legal News), 28 August 1981, p. 2.

128. Even to serve a copy of the judgment on a state enterprise can be a perilous undertaking. In the summer of 1988 the president of the economic chamber of a people's court in Hubei and two of his colleagues were brutally beaten and attacked with electric cattle prods when trying to serve a judgment on the municipal public motor vehicle company, a defendant which had something of a reputation for disregard of the courts: see “A serious incident of judge–beating occurs in Xiangfan city,” Fazhi ribao, 17 August 1988. I am indebted to Professor D. C. Clarke both for drawing my attention to this incident and for his translation of the report.

129. There were numerous reports to this effect in the years immediately following the introduction of the Law on Civil Procedure: see e.g. Zhongguo fazhi bao, 9 February 1983, “Questions and answers,” p. 3. In another case, when a plaintiff sought execution against the Ningde (Fujian) County Commodities Bureau, it only took place after both the Party and the county government had thrown their weight behind the court: Zhongguo fazhi bao, 30 July 1982, p. 2.

130. In one recent instance, where a debtor had failed to perform his obligations for a substantial time, the execution department of the Ningbo Intermediate People's Court was glad to solve the problem by “educating” the debtor. “In the face of the law…he realized that it was an error to default, and he paid the whole amount in cash.” “Ningbo court levies compulsory execution” (sic), Fazhi ribao), 2 June 1988, p. 2.

131. As in the case of the Ningde County Commodities Bureau, supra, fn. 104.

132. Ordinance of the People's Republic of China on the Arbitration of Economic Contracts, supra, fn. 112, Arts 33 and 35.

133. For illustrations of this process see MacNeil, R. W., “Contract in China: law, practice and dispute resolution,” Stanford Law Review, Vol. 38 (1986), pp. 303–397.CrossRefGoogle Scholar

134. Supra, fn. 78.

135. Gellhorn, “China's quest for legal modernity,” pp. 14–15.

136. Thus, e.g., the Supreme People's Court published as a model decision the report of a case in which a young lady recovered damages totalling 450 yuan against a dairy products company which had used her photograph on bottle labels without her permission and also against the employee of the studio where her portrait was taken who had sold it for this purpose. More significantly, the company's trademark containing the design was cancelled and over 400,000 cartons bearing the offending label were ordered to be destroyed. Case of a Dispute as to Infringement of a Citizen's Right to Her Own Likeness between Zhuo Xiaohong and Sun Dexi and the Chongqing Municipal Dairy Products Company, Zuigao renmin fayuan gongbao (Gazette of the Supreme People's Court) No. 1 (1987) (1 March 1987), p. 23. Article 100 of the General Principles provides: “A citizen enjoys a right to his likeness; without his consent, no one may use a person's likeness for profit”—Gray and Zheng, “General principles of civil law,” p. 735. See also Art. 120, which authorizes the remedies given in this case, which is certainly a striking example of the protection of the rights of an individual.Google Scholar

137. For one of the earliest publicized cases, in which a hospital and two local government departments were made liable for their negligence in allowing pollution of a fishery, see Dicks, “A legal opinion,” CTR, November 1981, p. 11.

138. Supra, fn. 10.

139. Shenjishu. Its operations are now governed by the Ordinance on the Audit of the People's Republic of China, promulgated by the State Council on 30 November 1988, Renmin ribao (People's Daily), 8 December 1988, replacing the earlier temporary statute enacted 29 August 1985.

140. Supra, fn. 10.

141. It is too early to assess the extent of its activities, although an enthusiastic account is given in Yang Xiaobing: “China's battle against corruption,” Beijing Review, 16 January 1989, pp. 16–20. For a recent report in which the ministry was said to have uncovered evidence of massive corruption in the field of foreign trade administration, see “First phase of the work of investigating foreign economic contracts completed,” Renmin ribao, 20 December 1988, summarized in Sampson, Catherine: “Peking cracks down on trade corruption,” The Times (London), 21 December 1988.Google Scholar

142. These include the decisions of the public security authorities under the Regulations for Administrative Penalties for Public Security (adopted by the Standing Committee of the NPC on 5 September 1986, Laws, Vol. II, pp. 271–82; see Art. 39), the principal penal law for minor offences, a development which may eventually have far reaching effects on police attitudes to the law.

143. Notice of the Supreme People's Court that People's Courts Must Not Initiate Mediation when Trying Administrative and Economic Cases, 6 November 1985 (Gazette of the Supreme People's Court, No. 4, (1985), p. 23). This principle has been incorporated into the Experimental Rules of Procedure for Administrative Cases announced in November 1988 (Renmin ribao, 10 November 1988; for an English text see British Broadcasting Corporation, Summary of World Broadcasts: Part III, FE/0315, 22 November 1988, B2/1–4).Google Scholar

144. Chen Shouyi, “A review of thirty years,” esp. pp. 185–91; cf. Lubman, “Emerging functions,” pp. 215–19.

145. On the contrary, both the Party leadership and the martial law authorities claim to be legitimate representatives of the legal order. See, e.g., as to the Party, extracts from the communiqué of the Fourth Plenum of the 13th Central Committee, issued on 24 June 1989 (as translated in Beijing Review, 3 July 1989, p. 4) calling for special attention to be paid to enhancing “Party building, democracy and legality…“; as to the martial law authorities, see the Notice to the People of the Municipality of Beijing by the Martial Law Forces Command of the People's Liberation Army, issued on 21 May 1989 (Fazhi ribao, 22 May 1989).

146. Similar procedures appear to have been adopted in Wuhan (“Clampdown on protests in Wuhan,” Agence France Presse and Reuter report quoting Chinese Central Television, South China Morning Post, 23 May 1989) and probably elsewhere, but they cannot at present be documented.

147. Supra, text at fn. 31.

148. Supra, fn. 31. Only two days before the Tiananmen massacre, an article appeared arguing for the replacement of the category of “counter–revolutionary crimes” in the Criminal Law (supra, n. 44) by the “crime of violating the interests of the state,” in part because the former, as the product of an earlier period, was inappropriate for the “one country, two systems” formula devised by Deng Xiaoping for Hong Kong and Macao; see Liu Defa and Kong Deqiu: “A proposal for the reform of counter revolutionary crime,” Fazhi ribao, 2 June 1989.

149. Until such time as the official gazettes appear the framework of martial law is not easy to document with complete confidence. The decree imposing martial law on (unspecified) “parts” of Beijing was issued on 20 May 1989 by the State Council pursuant to Art. 89, Para. 16 of the Constitution and was accompanied by three decrees (numbered 1, 2 and 3) issued by the Municipal People's Government of Beij ing: translations of all four documents were published in South China Sunday Morning Post, 21 May 1989. On 21 May 1989 the Martial Law Forces Command of the People's Liberation Army (PLA) issued its own “Notice to the People of the Municipality of Beijing” (Fazhi ribao, 22 May 1989) containing four paragraphs; one day later the Municipal People's Government and the Martial Law Forces Command jointly issued a Notice Regarding the Restoration of Normal Order in the Capital at the Earliest Possible Time (Fazhi ribao, 23 May 1989). Thereafter most notices and decrees seem to have been jointly issued, but an “Emergency Notice” of the Martial Law Forces Command alone was issued on 3 June 1989, announcing that the PLA would carry into effect Decrees Nos. 1, 2 and 3 as well as the State Council Martial Law Decree (Jingji ribao, 4 June 1989). Notice No. 8 (Numbers 4, 5, 6 and 7 presumably were contained in the Notice of 21 May 1989) was issued on 6 June (Fazhi ribao, 7 June 1989), Notices Nos. 9, 10 and 11 on 8 June 1989 (Fazhi ribao 9 June 1989) and subsequent Notices have been issued up to No. 15, issued 17 June 1989 (Jingji ribao, 18 June 1989).

150. Doubts were cast on the legality of the original decree by A. Wong Wang–fat, quoted in “Martial law rule may be illegal,” South China Morning Post, 25 May 1989; see also J. A. Cohen: “Law and Leadership in China,” Far Eastern Economic Review, 13 July 1989, pp. 23–24, for a broader consideration of the legality of the events of May and June 1989.

151. Supra, fn. 32.

152. See “The Supreme People's Court…resolutely supports the vital strategic decision made by the Party Centre to suppress the counter–revolutionary rebellion forthwith,” Fazhi ribao, 7 June 1989. Qiao Shi, as secretary of the Party's Central Committee on Political and Legal Affairs (supra, fn. 13), is the Party superior of the whole judicature and procuracy as well as the public security forces. The precise political significance of this attornment is not easy to fathom, but in legal terms it is also remarkable in calling for the protection of the Constitution while apparently disregarding the principle of judicial independence enshrined in Art. 126.

153. Notice of the Central Commission for Disciplinary Inspection Regarding the Strict and Impartial Administration of Party Discipline to Protect the Unity and Integrity of the Party, Fazhi ribao, 8 June 1989; this commission is also presided over by Qiao Shi; China Directory 1988, p. A17.

154. “Supreme Court urges the courts to give a speedy trial to counter–revolutionary rebel elements and to give severe punishment to criminal elements,” Fazhi ribao, 21 June 1989.

155. See, e.g., “Western leaders condemn executions in Shanghai,” South China Morning Post, 22 June 1989.

156. The Ministry of Justice found it necessary to remind local courts to “help lawyers play their role in the current crackdown on violence,” while cautioning lawyers to “realize the reactionary essence” of the riots: “Lawyers’ trials role stressed,” China Daily, 24 June 1989. The Ministry directed that only “experienced” lawyers should be assigned to such cases.

157. Cohen, “Law and leadership in China,” supra, fn. 150.

158. Even in the economic field unwanted “foreign” cultural influence may also be a reason for change. One of the earliest casualties in the economic sector has been the savings lottery system recently introduced and operated with some success by banks and post offices, which has now been prohibited: “People's Bank gives notice to all areas to stop operating savings lotteries,” Jinrong shibao (Financial News), 10 June 1989, where a case in Guizhou in which postal officials embezzled lottery prizes is also reported.

159. Supra, fn. 14.

160. Supra, text at fn. 76 and 81.

161. Supra, fn. 88.

162. A strenuous campaign has been mounted on numerous fronts by the Chinese authorities to demonstrate that the open–door policy still prevails; for an early review of this trend, see David Chen: “Authorities focus on‘continuing’ reforms,” South China Morning Post, 14 June 1989. A number of apparent concessions to long–standing demands by foreign businessmen have already been made; see, e.g., the Provisional Regulations for the Administration of Foreign Chambers of Commerce, promulgated by the State Council on 14 June 1989 to come into force on 1 July 1989 (Jingji ribao (Economic Daily), 22 June 1989.

163. For a case in which Chinese engineers have already been refused exist visas to attend training in Hong Kong in a new technology, see R. Roy: “Visa refusal holds back HDTV plan,” South China Morning Post, 11 July 1989.

164. Administrative law has been discussed hitherto in political as well as legal terms: see, e.g., Qihong, Yu: “The conversion to administrative law in the reform of the political system,” Zhengzhi yu falu (Political Science and Law), No. 5 (1988), pp. 3–6.Google Scholar

165. Adopted by the NPC on 4 April 1989 to come into force on 1 October 1990 (China Law and Practice, No. 5 (1989), pp. 37–55); it replaces the Experimental Rules (supra, fn. 143).Google Scholar

166. R. Delfs: “Purging the future,” Far Eastern Economic Review, 6 July 1989, p. 10.