China’s Legal System. Editor: Pan Guoping and Ma Limin. The Sinopedia Series Singapore: Cengage Learning, 2011.
It is no secret that modern China’s legal system and her development of the rule of law have always received profound impacts from the West. It can be said that the law and the development of the rule of law with Chinese characteristics have always been an important part of the international development of the rule of law. China is committed to carrying out the practice of the rule of law based on her national conditions, but at the same time, she attaches great importance and pays considerable attention to using and absorbing useful experience and achievements from foreign legal systems. These references and adopted measures are found in almost every Chinese legal department.
As mentioned in the previous chapters, China participates in 22 international covenants on human rights, and earnestly fulfills her related obligations, giving full play to the active role of international covenants on human rights in promoting and protecting human rights in the country.
For administrative laws, China has adopted concepts such as hearings, openness, proportions, trustworthiness, protection, and other general principles of modern administrative laws.
In the field of criminal law, China has used and adopted the basic principles and spirit of the rule of law for modern criminal law from foreign countries. She has also established the basic spirit of criminal proceedings as a “presumption of innocence,” and have implemented both principles of legally prescribed punishments for specified crimes and open trial. In recent years, due to new developments in crimes and China’s reference to experience gained from foreign criminal legislation, she has designated new criminal offences such as in the finance of terrorist activities, money laundering, insider trading, manipulation of prices of securities and futures, credit card fraud, and so on. The Criminal Procedural Law of China has established an international relationship protocol and a principle of reciprocity as the basis for Chinese judicial authorities to carry out criminal legal assistance abroad. In the past 10 years, China has carried out effective criminal judicial cooperation with some countries and international organizations. She has investigated and collected evidence under mutual assistance agreements; frozen, detained, and recovered illegally transferred proceeds from crimes; extradited or repatriated criminal suspects operating overseas; and by these means, effectively ensured an international just legal environment.
In the fields of civil and commercial law, China has adopted many basic systems from countries using common and civil laws. For example, generic international judicial tenets and legislative principles were adapted with the confirmation of the liberty of contract, its autonomy of will and equal parties, where public property and citizens’ legitimate private property are protected by the state. China attaches great importance to domestic legislation and incorporates international judicial cooperation into specific operational rules. When any people’s court is judging civil cases involving foreign events, the Civil Procedural Law provides for situations where the provisions of domestic law are in conflict with international protocol in which China has concluded or participated in, then the provisions of international protocol will prevail. In October 2008, the Standing Committee of the NPC brought the legislation of the Application of Foreign Civil Law Relations into legislative planning. This law is likely to be China’s first international judicial law.
Since the implementation of the reform and opening-up policy at the end of the 1970s, China has started to construct a foreign trade legal system. In recent years, China participated in numerous international economic organizations and international economic legislative activities more actively. She has also played an increasingly important role in key international economic organizations, such as the UN, the WTO, the IMF, the World Bank, and many others. During her application to join the WTO, China rapidly implemented the linking of relevant legal systems with the legal principles and rules of the WTO. In the legislation for intellectual property protection and environmental protection, among others, China also learnt about the foreign legislative experiences and had adopted a series of related international protocols.
In the field of international economic laws, China has implemented flexible and discreet financial management policies for a considerable period of time. Triggered by the sub-prime mortgages of the United States, a financial crisis broke out in 2007 and continued to spread worldwide, with its influence still being felt up to today. The Chinese financial legal system has withstood this test. During this time, China attempted to maintain the stability of her domestic economy, finance and capital market, and at the same time actively participated in international cooperation with a responsible attitude and practical measures, jointly maintaining the stability of the global economy, and actively advocated and supported the reform of the current international financial system. China will continue to firmly implement the opening-up policy, continue to support the economic globalization and trade liberalization process, cooperate with other countries to firmly safeguard the WTO multilateral trading and legal systems, and prevent the appearance of trade protectionism.
China has built judicial cooperation relationships with equal and mutual benefits with many countries and international organizations, and has accepted and adopted international general judicial cooperation rules. Up till October 2008, China has participated in 11 of the 13 international conventions against terrorism led and developed by the UN. She has signed the International Convention for the Suppression of Acts of Nuclear Terrorism, and has initiated internal procedures to approve this convention and the Amendment to the Convention on the Physical Protection of Nuclear Material. In 2008, China sent a delegation to participate in the annual meeting of the UN Anti-Terrorism Special Committee, and will continue to participate in the negotiation of the Comprehensive Convention on International Terrorism.
At the level of judicial cooperation, China has concluded 102 extradition or judicial assistance protocols with 58 countries. Through the signing, ratification, and implementation of these protocols, China has further strengthened legal cooperation with other countries, especially in the fight against transnational crimes and other criminal judicial cases that have great practical significance.
In addition to signing bilateral treaties and agreements, China has also participated in more than 20 multilateral international conventions relating to judicial cooperation. In 2001, China and other countries in the Shanghai Cooperation Organization signed the Shanghai Convention on Combating Terrorism, Separatism, and Extremism. China has joined the UN Convention Against Organized Crime and the UN Convention Against Corruption in 2003 and 2005, respectively; thus strengthening judicial cooperation in the fight against related crimes. China has also carried out international communications on the rule of law through international conferences and other various events. In 1990 and 2005, China successively organized the 14th and 22nd session of the Congress on the Law of the World. In 2006, the International Anti-Corruption Conference was held in China. When participating in these protocols, agreements, or conferences, China demonstrated her international legal advocation. In 2008, while participating in the Fourth Conference of Members of the UN Convention Against Organized Crime, the Chinese representatives emphasized that international cooperation was always the focus and priority of implementation, and appealed to all countries to help strengthen cooperation based on the respect of mutual differences and thus enhance mutual trust. This will help developing countries improve their ability to perform. At the same time, the representatives voiced their disapproval of the interference in internal a airs of other countries in the name of a performance review.
The judicial assistance matters processed by China’s relevant authorities based on bilateral treaties or multilateral conventions have increased annually, with a large number of civil and commercial judicial assistance requests effective implemented, thus protecting the rights and interests of China and foreign litigants. In recent years, China has held regular dialogues on the rule of law with the UN, international human rights organizations, and the WTO. In addition, she has begun multilateral and bilateral legal communication mechanisms with the European Union, the Association of Southeast Asian Nations, the Arab League, the Shanghai Cooperation Organization, the United States, United Kingdom, Germany, France, Australia, and other countries promoting mutual understanding and trust.
As a permanent member of the UN Security Council, China actively supports and participates in the work of international judicial bodies. A group of Chinese experts in international laws recommended and elected by the Chinese government are actively involved in such international judicial bodies as the UN International Court of Justice, the UN International Criminal Tribunal for the Former Yugoslavia, the UN International Tribunal for the Law of the Sea, among others, under the framework of the UN.
In 1985, Ni Zhengyu became the first Chinese national to act as judge for the International Court of Justice. A subsequent Chinese judge for the International Court of Justice, Shi Jiuyong, served as president of the court from 2003 to 2006, being the first Chinese national appointed to this post. After the UN International Criminal Tribunal for the Former Yugoslavia was established in 1993, Li Haopei, Wang Tieya, and Liu Daqun acted successively as its judges. In 1996, the UN established the International Tribunal on the Law of the Sea, in which Chinese jurists Zhao Lihai, Xu Guangjian, and Gao Zhiguo were successively appointed. Chinese international judges have played an extremely important role in each of these judicial institutions.
China has participated in international legal development with an increasingly active role and open attitude, and closely follows and participates in international topical legal issues. For example, for problems related to climate changes, China sent a delegation to participate in the 15th Conference of Parties (COP15) of the UN Framework Convention on Climate Change held in Copenhagen in December 2009, firmly safeguarding the framework and principles established by the UN Framework Convention on Climate Change and the Kyoto Protocol. In particular the principle of “common but differentiated responsibility” was upheld and important contributions were made to the consolidation and strengthening of international cooperation on climate.