Law of the People's Republic of China


The Law of the People's Republic of China, officially referred to as the socialist rule of law with Chinese characteristics, is the legal regime of China, with the separate legal traditions and systems of mainland China, Hong Kong, and Macau.
China's legal system is largely a civil law system, although found its root in Great Qing Code and various historical system, largely reflecting the influence of continental European legal systems, especially the German civil law system in the 19th and early 20th centuries. Hong Kong and Macau, the two special administrative regions, although required to observe the constitution and the basic laws and the power of the National People's Congress, are able to largely maintain their legal systems from colonial times.
Since the formation of the People's Republic of China in 1949, the country does not have judicial independence or judicial review as the courts do not have authority beyond what is granted to them by the National People's Congress under a system of unified power. The Chinese Communist Party 's Central Political and Legal Affairs Commission maintains effective control over the courts and their personnel.
During the Maoist period, the government had a hostile attitude towards a formalized legal system, because CCP chairman Mao Zedong and the CCP "saw the law as creating constraints upon their power." The legal system was attacked as a counter-revolutionary institution, and the concept of law itself was not accepted. Courts were closed, law schools were shut down and lawyers were forced to change professions or be sent to the countryside.
There was an attempt in the mid-1950s to import a socialist legal system based on that of the Soviet Union. But from the start of the Anti-Rightist Campaign in 1957–1959 to the end of the Cultural Revolution around 1976, the PRC lacked most of the features of what could be described as a formal legal system.
This policy was changed in 1979, and new leader Deng Xiaoping and the CCP put into place an "open door" policy, which took on a utilitarian policy to the reconstruction of the social structure and legal system where the law has been used as useful tool to support economic growth. Proposals to create a system of law separate from the CCP were abandoned after the 1989 Tiananmen Square protests and massacre. Under the general secretaryship of Xi Jinping, the legal system has become further subordinated to the CCP.

History

China has a tradition of adopting civil law systems. During the Qing dynasty, the Chinese government hired Japanese legal experts to copy legal systems from Japan in order to modernize the Chinese legal system. This stemmed from the German civil law system. After the establishment of the Republic of China in 1911, the Chinese government maintained the civil law system. Although the CCP abolished all legal systems of the ROC after 1949, its legal system was deeply influenced by the legal system of the Soviet Union, which could also be regarded as a civil law system.
The development of the current legal system dates from the late 1970s, after the end of the Cultural Revolution. After China's Reform and Opening Up, the CCP emphasized the rule of law as a basic strategy and method for state management. At the CCP's 13th National Congress in 1987, former CCP general secretary Zhao Ziyang proposed the idea of a system of law independent of the party. The idea was abandoned with the 1989 Tiananmen Square protests and massacre. In 1997, CCP general secretary Jiang Zemin called for establishing a socialist rule of law at the CCP's 15th National Congress.
On 4 September 1991, China passed the Law of the PRC on Protection of Minors. The law formalised the rights of children under 18 for the first time in China.
In the 2000s, the Weiquan movement began in the PRC, seeking to advance citizens' rights partly by petitioning for enforcement of existing laws, and partly through activism. Lawyers in the movement have seen some court victories, but in other cases they and their families have been ostracized and even tortured for their activities. In 2007, the doctrine of the Three Supremes was introduced under CCP general secretary Hu Jintao, mandating that the judiciary subordinate written law to the interests of the CCP.
On October 27, 2011, the State Council Information Office released the white paper "Socialist Legal System with Chinese Characteristics", announcing that the People's Republic of China has enacted a total of 240 effective laws, 706 administrative regulations, and more than 8,600 local regulations, and believes that the socialist legal system with Chinese characteristics has been formed.
In 2014, the CCP formally adopted a policy of constructing a "socialist rule of law with Chinese characteristics." CCP general secretary Xi Jinping describes the leadership of the CCP as essential to upholding the socialist rule of law and opposes the requirement of judicial independence. During the 18th Central Committee of the Chinese Communist Party, the CCP reinforced that the law remains firmly under the party's leadership. Xi states that the two fundamental aspects of the "socialist rule of law with Chinese characteristics" are: that the political and legal organs must believe in the law and uphold the law and all political and legal officials must follow the CCP. Xi's view tends to equate the rule of law with the development of legislation. In his writings, Xi has emphasized traditional Chinese concepts including people as the root of the state, "the ideal of no lawsuit", "respecting rite and stressing law", "virtue first, penalty second", and "promoting virtue and being prudent in punishment".
The primary laws regarding personal data security and privacy are the 2017 Cyber Security Law, the 2021 Data Security Law, and the 2021 Personal Information Protection Law.
In 2019, the city of Hangzhou established a pilot program artificial intelligence-based Internet Court to adjudicate disputes related to ecommerce and internet-related intellectual property claims. Parties appear before the court via videoconference and AI evaluates the evidence presented and applies relevant legal standards.

Varieties of law

PRC governmental directives exist in a hierarchy, which is defined by the Legislation Law of the People's Republic of China. The hierarchy of regulations are
  1. The Constitution of the People's Republic of China
  2. Nationwide laws, which are issued by the National People's Congress
  3. Administrative regulations, which are issued by the State Council
  4. Local decrees, which are issued by local People's Congresses
  5. Administrative and local rules, which are issued by an administrative agency or by a local People's Government
Major areas of law are substantive laws and procedural laws. The former include administrative law, criminal law, civil law or business law, and economic law. These are separated into different branches. For example, contract law is considered a branch of civil law. The latter includes civil procedure law, criminal procedure law and administrative procedure law.

Civil law and Civil Procedure Law

In 1986 the National People's Congress adopted the General Principles of the Civil Law of the People's Republic of China, which helped clarify the scope of the civil law. Article 2 of the document states that the civil law governs personal and property relationships between natural persons and legal persons having equal status. It covers a wide range of topics, including the General Principles, marriage law, property law, contract law, copyright law, and trademark law. From the point of view of some scholars, business law, such as corporation law, bankruptcy law, insurance law, and law on negotiable instruments, is distinguished from civil law.
Until 2021, the PRC did not have a single civil code in force. In its absence, the National People's Congress promulgated Marriage Law, Adoption Law, Succession Law, Contract Law, Law of Rights in Rem, Law of Tort Liability. The first part of the future Civil Code was General Provisions of Civil Law adopted in 2017, which was based on General Principles of Civil Law adopted in 1986.
On May 28, 2020, the Civil Code of the People's Republic of China was adopted at the third session of the 13th National People's Congress. It came into force on January 1, 2021, on which day Marriage Law, Succession Law, General Principles of Civil Law, Adoption Law, Guarantee Law, Contract Law, Property Law, Tort Law, and General Provisions of Civil Law were repealed. Since the Civil Code of the People's Republic China does not include provisions regarding intellectual property, company, or labour, its promulgation did not affect Trademark Law, Patent Law, Copyright Law, Company Law, Partnership Enterprise Law, Labour Law, or Labour Contract Law, all of which remained in force as of 2021.
The Civil Procedure Law of the People's Republic of China was first adopted in 1991 and subsequently amended in 2007, 2012, 2017 and 2021.
The Civil Procedure Law states that contract disputes shall be "under the jurisdiction of the people's court of the place where the defendant has his domicile or where the contract is performed".

Criminal law and Criminal Procedure Law

Criminal law

China's first post-1949 substantive and procedural Criminal Code was enacted in 1979. The 1979 Code followed the release of a new Constitution in 1978, and the fall of the Gang of Four in 1976.
The Criminal Law of China defines numerous corruption-related offenses, the most common of which include: embezzlement, bribery, collective embezzlement, misappropriation, holding huge property with unidentified sources, misuse of authority, dereliction of duty, and fraud.
In 2009, China amended its Criminal Law to set a low threshold for the prosecution of malicious cybercrimes and illegal data sales. In 2010, China prohibited admission of illegally obtained evidence in criminal cases.
The present Criminal Code, The Criminal Law of the People's Republic of China is the product of extensive revisions, most recently passed on December 26, 2020 which featured changes in response to recent social changes, some notable changes included the lowering of age that bears criminal responsibility to 16, and in the case of "committing crimes of intentional homicide, intentional harm", offenders of 14 to 16 of age would also bear criminal responsibility.
The criminal conviction rate in China is over 99 percent. The harshness of criminal law in China has attracted heavy criticism or strong support, especially due to the insistence on capital punishment for many crimes. China accounts for the biggest number of criminals executed in the world per year, which has raised concerns among different human rights groups and international organizations.