The origin of the current law of the People's Republic of China can be traced back to the period of the early 1930s, during the establishment of the Chinese Soviet Republic. In 1931 the first supreme court was established. Though the contemporary legal system and laws have no direct links to traditional Chinese law, their impact and influence of historical norms cannot be disregarded.
Early years (1949-1953)[edit | edit source]
The early legal system of the PRC was based on the Marxist concept of historical determinism and Mao Zedong's "theory of contradictions". Its goals were the establishment of socialist rule and the ultimate creation of a communist society. According to Chinese Communist ideology, the law and legal institutions existed to support party and state power. Because of this, the law of the PRC up to 1979 often took the form of general principles and shifting policies rather that detailed and constant rules.
After the Communist Party of China defeated the Kuomintang in 1949, the new regime quickly repealed the legal codes of the former ruling Republic of China. Most Kuomingtang era judges were also purged from the judiciary. A provisional constitution, called the Common Programme of the Chinese People's Political Consultative Congress, was adopted in September 1949. The most significant of the 148 laws and regulations of the Common Programme dealt with marriage, land reform, corruption as well as the isolation and destruction of "class enemies".
During the land reform movement of 1949-51, where private property was seized by the state and re-distributed under the Agrarian Reform Law (June 1950), few formal cases were brought to court. Instead administrative agencies conducted mass trials in which large crowds of hostile onlookers shouted accusations. Hundreds of thousands of landlords, intellectuals, and other "counter-revolutionaries" were either executed or put into prison. In 1953, at the instigation of legal specialists, the PRC government began to promulgate separate criminal laws.
Under the 1954 Constitution[edit | edit source]
The Constitution Law of 1954 established the Constitution of the People's Republic of China, providing the basic framework of the legal system along the lines of the Soviet Union. A criminal law, a code of criminal procedure, and a civil code were drafted, although they were not enacted until 1979. Law schools were expanded, and legal books and journals appeared.
During the Anti-Rightist Movement of 1957, legal specialists were among those purged. Mao Zedong rejected their calls for a less politically focused judiciary and greater depth of legislation. The trend toward legal professionalism was halted, and all codification commissions were dismantled. In the absence of a comprehensive legislative structure, policy became the legitimate source of legal norms to fill the sometimes enormous gaps in the law. Party policy was considered superior to law, as the former was considered the "soul of the people's democratic system", as "not all party policies are necessarily enacted into laws".
Policy and ideological indoctrination proved extremely effective in ensuring social control. They were tied to new frameworks of social organisation including the household registration (户口) and work unit (单位) systems. In this way, social control was very similar to the application of customary law in traditional Confucian society. Administrative disciplinary measures (行政纪律处分), meted out by these systems, were used against those who did not follow the norms prescribed by policy. Recourse to law for punishment has been traditionally reserved for "class enemies". This was especially the case during the Cultural Revolution.
Under the 1975 Constitution[edit | edit source]
The state constitution adopted in January 1975 stressed party leadership and reduced the power of the National People's Congress. At the same time, the process of ideological control accelerated. Frequent party policy changes continued to take the place of a code of criminal law or judicial procedure. Laws were not considered as necessary, let alone as important, to society.
Following the death of Mao in September 1976 and the downfall of the Gang of Four, the government attempted to restore the pre-1975 legal system. In January 1977 Premier Hua Guofeng directed legal experts to begin rebuilding judicial institutions in the spirit of the 1954 state constitution. At the same time, the People's Liberation Army and militia began turning over the responsibility for public security to the civilian sector. A theoretical study group from the Supreme People's Court affirmed that the courts and the public security organs were solely responsible for maintaining public order, and they called on the people to accept the views of superior authorities.
The government set out to reorganize completely all judicial procedures and establish codes of criminal law and judicial procedure as quickly as possible. Law schools were reopened, professors were rehired to staff them, and legal books and journals reappeared. By the end of 1977, the legal system and the courts reportedly were stronger than at any time since the 1954-56 period.
1978-1981[edit | edit source]
The post-Mao regime set about creating a modernising ideology that would salvage some legitimacy. At the third plenum of the 11th Central Committee of the CPC in 1978, the Chinese government proclaimed the Four Modernisations, an integral part of which was building a modern legal system. This was accompanied by Deng Xiaoping's Four Basic Principles.
In 1979, the Criminal Code was enacted, the first statute since 1954. In the same year, the Sino-Foreign Equity Joint Venture Law, the first law governing foreign investment, was passed. Since then, more than 300 laws and regulations, most of them in the economic area, have been promulgated. To advance its policy of market-based reforms, China has adopted alien approaches to legal regulation, particularly in the area of commercial law. China has now established a comprehensive scheme of legislation, including national laws, administrative regulations, and local rules.
People's congresses have been re-established at all levels, charged with the work of enacting law. The use of mediation committees - informed groups of citizens who resolve about 90% of the PRC's civil disputes and some minor criminal cases at no cost to the parties - is one innovative device. There are more than 800,000 such committees in both rural and urban areas.
The primary motivation has been to limit arbitrary behaviour by poweful officials and to provide standards for mangaging social, economic and political relationships, including foreign investment. Law is now perceived as a key element of regime legitimacy as it serves to institutionalise economic reform.
The adoption of a modern legal system has been driven by the central government in Beijing. While economic reforms were welcomed by most of the population, the new legal institutions, are still unsupported. Even in the marketplace, where customary normative frameworks are weak from decades of socialist suppression, the weakness of mechanisms of enforcement still preclude observance of law.
Under the 1982 Constitution[edit | edit source]
In 1982, the National People's Congress adopted a new state constitution that emphasized the rule of law under which even party leaders are theoretically held accountable. This reconstruction was done in piece-meal fashion. Typically, temporary or local regulations would be established and after a few years of experimentation, conflicting regulations and laws would be standardized.
Legal reform slowed down after the Tiananmen Square protests of 1989 but became a government priority again after Deng Xiaoping's tour of southern China in 1992. Important laws have been enacted in relation to commercial transactions, admininstrative litigation, and the judiciary system.
To a large extent legal reform has been driven by economic liberalisation. Whilst there has been resistance to politically sensitive legal concepts in non-commercial or public laws, changes have filtered from commerce-related laws. For example, the Administrative Penalty Law (1996) and Administrative Procedure Law (1990) were enacted to stop government intereference in state enterprises. The same laws allow citizens to sue officials for abuse of authority or malfeasance.
In addition, the criminal law and the criminal procedures laws were amended to introduce significant reforms. The criminal law amendments abolished the crime of "counter-revolutionary" activity. Criminal procedures reforms also encouraged establishment of a more transparent, adversarial trial process. Minor crimes such as prostitution and drug use are sometimes dealt with under reeducation through labor laws.
In some cases, the PRC was willing to adopt whole sectors of a foreign legal system. Examples are the banking and securities system (heavily influenced by the United States) and industrial property laws (a copy of the German system).
They have contributed to establishing the legal order of the domestic market, attracting foreign investment and converging the domestic market with the international market.