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An Introduction to the Chinese Legal System

· INSIGHTS

Through more than 70 years of unremitting joint efforts since the founding of the People's Republic of China and 40-plus years of reform and opening up, a socialist legal system with Chinese characteristics has come into being. Law-based government has steadily progressed with accompanying improvements to the judicial system. Across the Chinese society, the concept of the rule of law has improved significantly.

The Chinese Legal System is an organic integration of constitutional, civil and commercial laws, administrative, economic, social and criminal laws, litigation and non-litigation procedural laws, as well as other legal branches. It is an organic unity with the Constitution as the core. The Constitution is the fundamental law of the country, assuming the ultimate commanding position in the socialist system of laws with Chinese characteristics. People of all ethnic groups, all state organs, all armed forces, all political parties or public organizations, and all enterprises or institutions within China must take the Constitution as the basic standard of conduct and have a duty to uphold the dignity of the Constitution and ensure its implementation. The Constitution has supreme legal authority in the socialist system of laws with Chinese characteristics. All laws, administrative and local regulations must be made in accordance with the Constitution and must not contravene the Constitution.

The Constitution stipulates that the NPC and NPCSC exercise the legislative power of the state. The laws enacted by the NPC and NPCSC establish the important and basic legal systems in construction of the nation’s economic, political, cultural, social, and ecological civilization. They constitute the main body of the socialist system of laws with Chinese characteristics. The laws must not be contravened by administrative or local regulations.

The State Council formulates administrative regulations in accordance with the Constitution and laws. Administrative regulations may regulate matters concerning the implementation of the provisions of the laws and the performance of the administrative functions and powers of the State Council. For matters to be governed by laws formulated by the NPC and NPCSC, the State Council may enact administrative regulations first in its place with authorization from the NPC and NPCSC.

The people’s congresses and their standing committees of the provinces, autonomous regions, municipalities, cities with subordinate districts, and autonomous prefectures may, in accordance with the Constitution and laws, formulate local regulations. The people’s congresses of the ethnic autonomous areas have the power to formulate autonomous and separate regulations on the basis of the political, economic, and cultural characteristics of the local ethnic group(s). The people’s congresses and their standing committees of the provinces and cities where special economic zones are located may, upon authorization by the NPC, formulate and enforce regulations within the limits allowed by the special economic zones.

The ministries and commissions, and directly affiliated institutions with the administrative functions of the State Council, the People's Bank of China, and the National Audit Office may formulate regulations within the scope of their functions and powers and in accordance with the law and the administrative regulations, decisions, and orders of the State Council. The people's governments of provinces, autonomous regions, municipalities, cities with subordinate districts, and autonomous prefectures may formulate regulations in accordance with the law, the administrative and local regulations of their provinces, autonomous regions, and municipalities.

Judicial interpretation is also an important source of law in China. Judicial interpretation of Chinese law specifically refers to interpretations made by the Supreme People's Court of the People's Republic of China and the Supreme People's Procuratorate that have universal judicial effects on the specific governing laws and procuratorial work based on the powers granted by the laws. Judicial interpretation has legal effect, but it shall not contravene the Constitution and the law. Courts can directly quote judicial interpretations as the basis for judgment.

Although China is not a country that practices case law, some judicial cases nevertheless have significance as guides for judicial practice. Such judicial cases in China are called Guiding Cases, and are issued by the Supreme People's Court of the People's Republic of China and the Supreme People's Procuratorate. As of now, the Guiding Case system is not a formal source of law, but it provides important references for judges dealing with similar cases.

 

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