To the left is a crude overview of the hierarchy of the Chinese Legal System.
Chinese Legal System: The History/Traditional China
China has a long and rich history
spanning over several thousand years of civilization. Historians divide legal
history into two categories, traditional and modern China. The legal system of
traditional China is characterized by feudalism, imperialism, and being under
the rule of emperors. The older surviving legal code came from the Tang
dynasty, which became widely known in the seventh century AD. It constituted
the foundation for the later development of the Song, Yuan, Ming, and Qing
dynasties. These codes of law regulated matters that would fall under modern
day's "criminal law." In traditional China there was not a
distinction between criminal and civil law. Punishments often apply to acts
that would be covered by civil law today. Most often disputes between
individuals regarding family matters or land were settles through mediation.
These informal resolutions of conflict were often times conducted by respected
leaders or elders in the villages who applies customary rules and concepts of
morality to reach an agreement between the upset parties. The Chinese emperor
had the responsibilities of being the executive, legislative, and judicial
systems. Laws created by the emperor apply to all of his subjects, but not
directly to him. Because the emperor was the supreme judicial power he could
determine the guilt or innocence of accuses individuals, determine the
consequences, and change the judgments given by lower judicial authorities.
Chinese Legal System: The Present/Modern China
In the early part of the twentieth century
efforts to modernize the legal system of China were instituted by the Qing
Empire. It had become shockingly apparent that some parts of the legal system,
such as the harshness of criminal procedure, and the lack of commercial law
made China's law practices seem primitive in comparison to the legal systems of
other nations. In 1904 an initiative started with the creation of the Law
Reform Bureau, which was tasked with translating foreign codes and drafting new
laws. Another step was made towards modernization by the declaration of an
Imperial Constitutional Outline in 1908. Sadly, before any of the drafted laws
could go into effect the Qing Empire was over thrown in 1911. The governments
that followed did however; adopt some laws that were partially based on the
draft laws of the Qing reform movement.
The CPC, or Communist Party of China, was established on July 1st, 1921. Shortly after its finding, the CPC entered a loud political period referred to as the "New Democratic Revolution" which encompassed three important struggles that the CPC was involved in. These three struggles are the Second Revolutionary War which took place in 1927-1937, the War of Resistance against Japan (1937-1945), and the Third Revolutionary War (1945-1949.) In 1949 the CPC founded the People's Republic of China.
The CPC, or Communist Party of China, was established on July 1st, 1921. Shortly after its finding, the CPC entered a loud political period referred to as the "New Democratic Revolution" which encompassed three important struggles that the CPC was involved in. These three struggles are the Second Revolutionary War which took place in 1927-1937, the War of Resistance against Japan (1937-1945), and the Third Revolutionary War (1945-1949.) In 1949 the CPC founded the People's Republic of China.
Chinese Legal System: Structure
Executive Branch:
In articles 79-84 in the Constitution of the People's Republic of China or PRC, established in 1982, establish the positions and powers of the President, and the Vice President. These two positions are filled by people elected the by National People's Congress. They serve terms of 5 years, with a limit of two consecutive terms. The President is responsible for the declaration of statutes, the appointment and removal of various State Council members, proclamations of martial law and states of war, the issuance of pardons, and receiving foreign diplomats and ratifying or repealing treaties with foreign nations. The Vice President is responsible for helping the President fulfill his duties and is allowed to carry out presidential functions as delegated by the President.
According to articles 85-98 of the constitution the State Council is the government of the PRC. It is the highest organ of state power, and state administration. The State Council is made up of the following;
The State Council's term is five years. The State Council is responsible for the adoption of administrative measures, rules and orders, submission of proposals to the NPC, creation and execution of a plan for national economic and social development, conduction foreign affairs and concluding treaties and agreements with foreign nations; protection of the rights of Chinese nationals abroad, and exercising any other functions that they NPC delegates.
Legislative Branch:
The National People's Congress is partially made up of a permanent body called the Standing Committee. The NPC is the unicameral body given the authority to establish the laws in China. The deputies of the NPC are elected to five year terms. Some of the powers of the NPC consist of being able to amend the Constitution, enact laws, elect the President and Vice President of the PRC, elect the President of the Supreme People's Court, deciding questions of war and peace, and various removal powers. Whenever the NPC is not in secession, the Standing Committees can enact amendments and additions to laws passed by the NPC. People's congresses of provinces, municipalities, autonomous areas and cities can also create legislation, as long as they are in compliance with the Constitution, and laws passed by the NPC, and the people's congresses which are above the local congresses in the hierarchy. A typical bill goes through presentation, examination, passing the bill, and publication of the enacted law.
Judicial Branch:
The judicial system of China is established in articles 123-135 of the Constitution. The judicial system consists of the people's courts, the Supreme People's Court, the people's procuratorates, the Supreme People's Procuratorate, military procuratorates, and other special people's procuratorates. They define procuratorates as "state organs for legal supervision." The NPC amended the Organic Law of the People's Procuratorates, which gives them the ability to perform similar tasks as a prosecutor in the United States. It oversees investigations by the public security organs, and decides which cases will be prosecuted. The oversight of the procuratorates goes beyond investigation and trial, but extends into supervision of the legal activities of the people's courts, the execution of judgments and the activities of prisons.
Like any other legal system there is a hierarchy within the court structure. The hierarchy of their judicial branch is as follows from the top down:
The Supreme People's Courts
The Higher People's Courts
The Intermediate People's Courts
The Basic People's Courts
The Basic People's Courts are comprised of of more than 3,000 courts at country level. These courts are then broken down into about 20,000 smaller unites called people's tribunals, which are located in towns and villages. There are a total of 376 Intermediate People's Courts, and 31 Higher People's Courts located in the provinces. In addition to these mentioned courts that are a number of specialized courts. Litigants, or people involved in a lawsuit, are usually limited to one appeal.
*Special Note*
The Constitution also created the Central Military Commission, or CMC. It is an organizational body that directs the armed forces of China. Interestingly enough the constitution does not directly state the responsibilities and abilities of the CMC. It only states that the CMC is responsible to the NPC.
In articles 79-84 in the Constitution of the People's Republic of China or PRC, established in 1982, establish the positions and powers of the President, and the Vice President. These two positions are filled by people elected the by National People's Congress. They serve terms of 5 years, with a limit of two consecutive terms. The President is responsible for the declaration of statutes, the appointment and removal of various State Council members, proclamations of martial law and states of war, the issuance of pardons, and receiving foreign diplomats and ratifying or repealing treaties with foreign nations. The Vice President is responsible for helping the President fulfill his duties and is allowed to carry out presidential functions as delegated by the President.
According to articles 85-98 of the constitution the State Council is the government of the PRC. It is the highest organ of state power, and state administration. The State Council is made up of the following;
- Premiers
- Vice-Premiers
- State Councillors
- Ministers in charge of ministries
- Ministers in charge of commissions
- Auditor-General
- Secretary-General
The State Council's term is five years. The State Council is responsible for the adoption of administrative measures, rules and orders, submission of proposals to the NPC, creation and execution of a plan for national economic and social development, conduction foreign affairs and concluding treaties and agreements with foreign nations; protection of the rights of Chinese nationals abroad, and exercising any other functions that they NPC delegates.
Legislative Branch:
The National People's Congress is partially made up of a permanent body called the Standing Committee. The NPC is the unicameral body given the authority to establish the laws in China. The deputies of the NPC are elected to five year terms. Some of the powers of the NPC consist of being able to amend the Constitution, enact laws, elect the President and Vice President of the PRC, elect the President of the Supreme People's Court, deciding questions of war and peace, and various removal powers. Whenever the NPC is not in secession, the Standing Committees can enact amendments and additions to laws passed by the NPC. People's congresses of provinces, municipalities, autonomous areas and cities can also create legislation, as long as they are in compliance with the Constitution, and laws passed by the NPC, and the people's congresses which are above the local congresses in the hierarchy. A typical bill goes through presentation, examination, passing the bill, and publication of the enacted law.
Judicial Branch:
The judicial system of China is established in articles 123-135 of the Constitution. The judicial system consists of the people's courts, the Supreme People's Court, the people's procuratorates, the Supreme People's Procuratorate, military procuratorates, and other special people's procuratorates. They define procuratorates as "state organs for legal supervision." The NPC amended the Organic Law of the People's Procuratorates, which gives them the ability to perform similar tasks as a prosecutor in the United States. It oversees investigations by the public security organs, and decides which cases will be prosecuted. The oversight of the procuratorates goes beyond investigation and trial, but extends into supervision of the legal activities of the people's courts, the execution of judgments and the activities of prisons.
Like any other legal system there is a hierarchy within the court structure. The hierarchy of their judicial branch is as follows from the top down:
The Supreme People's Courts
The Higher People's Courts
The Intermediate People's Courts
The Basic People's Courts
The Basic People's Courts are comprised of of more than 3,000 courts at country level. These courts are then broken down into about 20,000 smaller unites called people's tribunals, which are located in towns and villages. There are a total of 376 Intermediate People's Courts, and 31 Higher People's Courts located in the provinces. In addition to these mentioned courts that are a number of specialized courts. Litigants, or people involved in a lawsuit, are usually limited to one appeal.
*Special Note*
The Constitution also created the Central Military Commission, or CMC. It is an organizational body that directs the armed forces of China. Interestingly enough the constitution does not directly state the responsibilities and abilities of the CMC. It only states that the CMC is responsible to the NPC.
Chinese Legal System: Civil Law
In China, civil law governs the personal and property relationships between citizens and/or legal persons. It is also comprised of other more specific pieces of legislation dealing with a vast array of topics spanning from marriage, land administration, environmental law, copyright, and trademark.
Civil Procedure:
In a court of first instance, or the first time the case has been tried, the case will fall under one of two forms of procedure. These forms of procedure are ordinary procedure, and summary procedure. Under ordinary procedure a case is initiated by filing a writ with the a court. The court will then examine the write to determine if the requirements for bringing the action are met. It they are met, the court will then file the case. If the court decides not to file the case, the decision can be appealed by the plaintiff. If the case is initiated, the court much serve the writ on the defendant, who is permitted to file a defense to the plaintiff's claim.
Prior to the commencement of trial, it the is the duty of the court's adjudicative personnel to review the case and its materials and carry out an investigation, seeking to collect the evidence that is necessary to determine the case. Also, prior to trial mediation often occurs with the hope that the parties will come to terms and settle outside of court. In many cases this mediation is successful, in the event that it isn't the parties involved must be given notice that the case is going to proceed to trial, and when they are going to need to appear before the court.
There are three stages to an ordinary trial process. The first stage is the investigation. During this stage parties and witnesses are questioned by the court, and a presentation of material and documentary evidence is heard. The second stage is the court debate. This stage is comprised of the parties and their counsel offering their arguments. The third sate is the judgement of the case.
Under summary procedure, the basic people's courts and its tribunals can decide simple civil cases in a less formal manner. The claim of the plaintiff maybe presented orally, or the disputing parties can go directly to court together, and request that the court issue an immediate resolution. In summary procedure only one adjudicator hears the case.
Appeals can be taken to the next higher level court by any party involved int he case. After an appeal a bench of adjudicators will review the facts and the law of the case, which can involve an open hearing, but is not required. The determination of an appeal is final and legally effective.
Civil Procedure:
In a court of first instance, or the first time the case has been tried, the case will fall under one of two forms of procedure. These forms of procedure are ordinary procedure, and summary procedure. Under ordinary procedure a case is initiated by filing a writ with the a court. The court will then examine the write to determine if the requirements for bringing the action are met. It they are met, the court will then file the case. If the court decides not to file the case, the decision can be appealed by the plaintiff. If the case is initiated, the court much serve the writ on the defendant, who is permitted to file a defense to the plaintiff's claim.
Prior to the commencement of trial, it the is the duty of the court's adjudicative personnel to review the case and its materials and carry out an investigation, seeking to collect the evidence that is necessary to determine the case. Also, prior to trial mediation often occurs with the hope that the parties will come to terms and settle outside of court. In many cases this mediation is successful, in the event that it isn't the parties involved must be given notice that the case is going to proceed to trial, and when they are going to need to appear before the court.
There are three stages to an ordinary trial process. The first stage is the investigation. During this stage parties and witnesses are questioned by the court, and a presentation of material and documentary evidence is heard. The second stage is the court debate. This stage is comprised of the parties and their counsel offering their arguments. The third sate is the judgement of the case.
Under summary procedure, the basic people's courts and its tribunals can decide simple civil cases in a less formal manner. The claim of the plaintiff maybe presented orally, or the disputing parties can go directly to court together, and request that the court issue an immediate resolution. In summary procedure only one adjudicator hears the case.
Appeals can be taken to the next higher level court by any party involved int he case. After an appeal a bench of adjudicators will review the facts and the law of the case, which can involve an open hearing, but is not required. The determination of an appeal is final and legally effective.
Chinese Legal System: Criminal Law
China's current Criminal Law Code was first adopted in 1979, and was later amended in 1997. In the years since there have been several other additions to the criminal law. A key goal of the criminal laws is protecting society from harm. Another key goal is to reform the person convicted of the crime. They use education, labor and skills training to help reform the "criminals."
Criminal Procedure:
There are five main stages of a criminal case. They are: initiation, investigation, prosecution, adjudication, and execution of the sentence. The filing, or initiation of criminal cases, and the investigation are carried out by the public security organs, or the procuratorate. Often times they are responsible for detaining suspects (no prior authorization is needed to do so), executing arrests (prior authorization is required), initial questioning, and surveillance of residence. The prosecution is initiated by the procuratorate if that facts indicate a crime has in fact been committed. They then question the subject to determine one of the four outcomes:
1. send the case back to the public security organ for further investigation.
2. initiate a public prosecution.
3. excuse the suspect from prosecution.
4. decide not to initiate a prosecution.
Criminal Procedure:
There are five main stages of a criminal case. They are: initiation, investigation, prosecution, adjudication, and execution of the sentence. The filing, or initiation of criminal cases, and the investigation are carried out by the public security organs, or the procuratorate. Often times they are responsible for detaining suspects (no prior authorization is needed to do so), executing arrests (prior authorization is required), initial questioning, and surveillance of residence. The prosecution is initiated by the procuratorate if that facts indicate a crime has in fact been committed. They then question the subject to determine one of the four outcomes:
1. send the case back to the public security organ for further investigation.
2. initiate a public prosecution.
3. excuse the suspect from prosecution.
4. decide not to initiate a prosecution.
Chinese Legal System: Legal Education
In China the study of law consists of a three year program at a university or department. After graduating from a law university, gaining at least two years of legal work experience, an individual is eligible to take a bar examination offered two times a year. If the individual successfully completes all three stages he/she can apply for a certificate qualifying him/her as a lawyer. There are special cases where an individual can obtain a law certificate with out obtaining a law degree. A person who has a non-law degree, and three years of legal experience, or having worked as a judge or procurator, may also seek qualification. These individuals are also required to take the nation bar examination.