[转帖]The Legal System of China

    The Legal System of China

    The Legal System of China

    I.Introduction

    II.The Legal Reform

    III.Law MakingI

    V.Procedures of Law Making

    V.The Judiciary

    VI.Interpretation of Law

    The Legal System of China

    I. Introduction

    Legal system refers， in general， to the legislative， the executive and the judicial system of a country. Late Professor Fuller， a renowned authority of jurisprudence and pioneer of the neo-naturalism， used the terms 'law'， 'legal system'， 'legality' and 'rule of law' interchangeably. For Rawls， 'A legal system is a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation'. Others have described the legal system by examining the contributing factors or essential features thereof. At the same time， other publications like the Black's Law Dictionary （5th Ed.）， the Law Lexicon （by Mukheerjee and Singh）， etc. refuse to define the term 'legal system'. This demonstrates that it is difficult， if not impossible， to define what constitutes a legal system， in particular the legal system of China or what the legal system is comprised of. Taking into consideration of the overall purpose and theme of this book， this chapter does not attempt to define the contents or the exterior boundary of the legal system of China. Instead， it will only discuss some important aspects of the Chinese legal system such as law making bodies， law making process， the court system and interpretation of law in addition to a brief discussion on China's legal reform.

    II. The Legal Reform

    History Prior to the Reforms

    The origins of the current legal system can be traced back to the period of the Chinese-Soviet Republic in the revolutionary bases prior to the establishment of the People's Republic of China. The first formal piece of legislation， commonly referred to， was the Common Programme of the Chinese People's Political Consultative Congress promulgated in 1949 which laid down the essential principles of the Constitution and which was adopted in 1954. Thereafter laws relating to the court system， the procuratorates， marriage， land reform etc. were adopted.

    The laws adopted in the early 1950's were to a large extent tinged with revolutionary characteristics for the transformation of private ownership to public ownership. The ideology or spirit of such laws was obviously influenced by the former Soviet Union. In that period， the Government relied not only on the Communist Party and workers and peasants but also on capitalists and intellectuals who agreed with the socialist system. The laws including the Constitution were quite balanced in reflecting the interests of these groups of the Chinese population. The speedy enactment of laws in the 1950s was necessary as the laws of the previous Guomindang Government previously existing， were declared null and void.

    From 1957 to 1976 with the exception of three to four years in the early 1960's， China was deeply engaged in political movements. The laws of that period reflected the class-struggle type of the political environment. At the same time， China adopted a highly centralized planned economic system. Economic plans and administrative orders， instead of law， had binding force on local governments and enterprises of different sectors of the economy such as manufacturing， distribution and service. Laws thus became a tool of class struggle. The exploitation of classes as such have been abolished in China. However， it is expected that class struggle will continue to exist within certain limits for a long time to come （See the Preamble of the Constitution）。 In fact in the ten years of the Great Cultural Revolution （1966 - 1976）， laws were not considered to be necessary， let alone as important， to the society.

    This situation did not change until the late Chairman Mao died in 1976 and the pragmatic policies were adopted by the Government in 1978 when it was announced that the country would， from then on， concentrate its efforts on economic construction. That announcement was not surprising. In the first place， the economy was on the verge of bankruptcy. Secondly， most of the leaders of the Government suffered a lot from the political movements especially the Great Cultural Revolution. This did not mean， however， that the Government had decided to change political directions or ideology. On the contrary， the Constitution of 1982 stipulates the 'four cardinal principles' as guiding principles for the development of the country.

    On the economic front during the 'Cultural Revolution' self-reliance was the buzz word. Before that due to political and ideological differences China isolated itself from the rest of the world. It was open only to countries with the same ideology such as the former Soviet Union and a few Communist countries. The three decades of 'close door policy' proved to be detrimental to its economic and technological advancement as compared to the rest of the world. Soon after China decided to concentrate on economic development， the Government realized the need to modify its rigid economic system including central planning and people's communes. Economic growth requires capital and advanced technology as well as advanced methods of management. Having been isolated from the rest of the world for more than a decade and having engaged in political movements at the same time， China neither had the needed capital nor technology or management skills to revitalize its economy. Pragmatic policies therefore directed the importation of those items from foreign countries and the neighbouring regions.

    Law-Making Since Late 1970's

    From 1978 to 1989， numerous laws and administrative regulations were adopted to encourage foreign investments and domestic economic reforms. During this period more than 450 laws and regulations were promulgated by the NPC， the NPC's Standing Committee and the State Council. Included among them were 350 economic laws and nearly 100 laws concerning the introduction of foreign capital and technology from foreign countries. Issues in relation to political reforms were brought about several times but no major law， however， was adopted in that period. In late 1980s， foreign investments in also slowed down. The main reason for this was political rather than legal or for lack of economic opportunity. What happened in the summer of 1989 also generated world wide concern which， in turn， affected foreign governments policies towards investment in China.

    The situation changed with Deng Xiaoping's tour to southern China in 1992 during which Deng worked hard to promote economic reforms and the establishment of a market economy with socialist characteristics. Since then a number of important laws have been enacted in relation to commercial transactions， administrative litigation， Legal system， etc. Such laws have contributed greatly to establishing the legal order of the domestic market， attracting foreign investment and converging the domestic market with the international market by providing compatible legal prescriptions.

    Looking back at the path of legal reforms of the last 20 years， it is clear that China has demonstrated its willingness to learn from the experience of the developed economies in respect of establishing a suitable legal system for strengthening the socialist market economy. China was even prepared to adopt the whole sector of a foreign legal system. In this regard， the tax system （heavily influenced by the US tax system） and the industrial property laws， i.e.， patents and designs， and trademarks （a copy of the German system） are examples. In most of cases， however， China appeared to be more willing to accept the provisions and concepts of foreign laws than their values and underlying principles. As a result， China has resisted the notion of 'copying' or 'transplanting'. But it has accepted the proposition of 'learning the experience of foreign countries'， for 'experience' implies successful practices. This， as discussed later， has proved to be very difficult， if not impossible， in the current heavily interdependent world.

    The economic exchanges with foreign countries and regions， and China's own effort to join the WTO have gradually made the Chinese market an integrated part of the world market. Chinese economy has become an inseparable part of the global economy. The interdependence between China and the rest of the world makes it impossible for China to resist cultural， political and legal influences， including values and beliefs， of foreign countries on the one hand， and to welcome foreign capital and advanced technology on the other. These economic exchanges carry cultural， political， legal， moral， even ideological values with them， for economic transactions require the help of human beings， the real persons who exchange views with each other. Through such exchanges， foreign concepts， values， etc. slowly entered China and influenced Chinese laws too.

    Transplantation of Foreign Laws and Legal Concepts

    China has not accepted the provisions and concepts of foreign laws passively. In order to expand economic exchanges with other countries and in particular to join the WTO， China has tried， as stated earlier， to learn from the experience， including lawmaking， of foreign countries. As for politically sensitive issues or legal concepts， there has been obvious resistance in China. Yet changes have been introduced into Chinese laws. Such changes first appeared in commercerelated laws and then inevitably in non-commercial or public laws. To illustrate， the legal person concept was not well defined （non-incorporated bodies considered as legal persons） in Chinese law nor were the powers and functions of legal persons and enterprises. Article 41 of the General Principles of the Civil Law stipulates that a legal person must have （1） sufficient funds； （2） articles of association； （3） an organization and premises； and （4） the ability to bear civil liability independently. There was no agreement as to whether or not legal persons might own， manage and dispose of properties independently. For instance Article 2 of the Law on Industrial Enterprises Owned by the Whole People provides that State-owned enterprises must obtain the status of a legal person in accordance with the law and bear civil liabilities as regards the property which the State has authorized it to operate and manage. At the same time， it stipulates that the property of the enterprise is owned by the whole people. In other words， an enterprise only has right to possess， utilize and dispose of the property which the State has authorized it to operate and manage. Therefore， there is no clear separation of the company's ownership of the property from the ownership of the shareholders. The laws and regulations in relation to reforms of state-owned enterprises all emphasize the importance of restricting the government from the routine management of enterprises whilst allowing state-owned enterprises to exercise more powers in business decision-making， these laws and regulations stop short at authorizing such enterprises to own and dispose of their own properties， although under Chinese law they are legal persons which have the ability to bear civil liabilities independently. Most of the above issues were resolved， at least in theory， with the adoption of the Company Law.

    Prior to 1978， the economy was virtually wholly state-owned. The economy became diversified only after the implementation of economic reform policies. Foreign ownership， private ownership， collective ownership and state ownership currently co-exist. With the introduction of more and more market elements into the economy and with China being integrated into the world， enterprises， state owned or otherwise， must be free from interference of the government in order to compete successfully in a true market situation. This required the state to adopt laws to government officials from unnecessary intervention in management of enterprises and to guarantee the rights of autonomy of the latter. As a result， the Administrative Penalty Law and the Administrative Procedure Law were enacted. The recent revision of the Criminal Law and the Criminal Procedure Law have also reflected the change of thinking， concepts and to some extent values of the decision makers. The guiding principle behind the Criminal Law reform was to introduce a new criminal law which could serve economic restructuring rather than politics； and it should be democratic， scientific and consistent with international standards.

    Changes have also been brought about in the understanding of law； that is， what law is. As a tradition of Marxist theory， law was always considered as reflecting only the interests of the ruling class. This was vividly stated in the China's Great Encyclopedias （1984） which defines law as 'the total sum of the codes of behaviour enacted or approved by the State to be implemented with the guarantee of the State's power of enforcement in accordance with the interests and will of the ruling class'. Recent writings by Chinese scholars of jurisprudence hold different views. For instance， according to Professor Zhou Wangsheng， 'law is the total sum of the social stipulations in the form of the will of the authority， serves as the basis for the judiciary in handling cases， has the characteristics of universality， explicitness and certainty whose contents mainly stipulate the rights and obligations， mainly and firstly reflects the will of the ruling class， and eventually subject to the social and material conditions.' Professor Zhou's view seems to be shared by other prominent scholars in China. Chinese scholars have abandoned the view that socialist law is the 'tool for class struggle' and redefined the fundamental aim of the law as the liberation of mankind and productive forces. They have contended that socialist law is no longer the manifestation of the will of the ruling class， but is instead the manifestation of the will even of the working class. Thus it seems the debate with the orthodox Marxist view will continue.

    The Jurisprudence， a designated textbook for higher education， instead of defining what the law is， states 'the nature of law is a reflection of the will of the ruling class， whose contents are decided by the material conditions of the society.' It further states， 'whilst making the law， the ruling class must take into account the endurance and strength of the ruled or the non-ruling class.' In addition to the restraints of material conditions， law according to Jurisprudence is also subject to politics， morality， culture， history， tradition， science and technology， etc. In their view， the 'will' of the ruling class is the common interest or common will rather than the accumulated will of the ruling class. Hence， according to these scholars since China is ruled by the people， the will of the ruling class is also the will of the people.

    To recognize and accept that law is not only representing the will and interest of the ruling class is an important contribution to the Chinese jurisprudence. Its significance is not because such statement reflects the reality. Rather to state that no ruling class is free from pressure and influence of the non-ruling class and other groups will lead students to study law analytically （rather than blindly believing what the law is） and in turn to help improve the legal system of China.

    III. Law Making

    National People's Congress and Its Standing Committee

    The National People's Congress （'NPC'） is the highest institution of state power and together with its permanent body ―― the Standing Committee of the NPC， 'exercise the legislative power of the state'. This provision is different from that of the 1954 Constitution which provided that the 'National People's Congress [was] the sole State organ that exercise[d] the legislative power'. The change reflects China's change of attitude towards the NPC. The NPC is composed of deputies elected from the provinces， autonomous regions and municipalities directly under the Central Government and of deputies elected from the armed forces. All the minority nationalities are entitled to appropriate representation. With 3，000 members， the NPC now convenes a meeting each year which lasts for about two weeks. The NPC meeting is convened by its Standing Committee. A session of the NPC may also be convened at any time the Standing Committee deems it necessary or when at the proposal of more than one-fifth of the deputies NPC membership is more or less an honorary position. Most of the members have little， if any， knowledge of lawmaking. The time allowed for each meeting does not permit detailed deliberation on the bills for adoption either. In theory， the NPC has the power to amend the Constitution and to enact and amend basic laws governing criminal offences， civil affairs， the state organs and other matters. In practice， however， the NPC has neither the ability （lack of secretarial and research support） nor adequate time to consider draft bills for enactment. On the other hand the Standing Committee of the NPC is much smaller in size and meets every two months. Many of its members serve on a full time basis. The Standing Committee of the NPC is composed of the Chairman， the Vice-Chairmen， the Secretary-General， and the members. Minority nationalities are entitled to appropriate re-presentation on the Standing Committee of the NPC. The Chairmen of the local people's congresses at the provincial level are invited to attend （without vote） the NPC Standing Committee meetings. To entrust the NPC Standing Committee with the legislative power is a demonstration of China's willingness to allow the NPC to exercise its legislative power in the true sense.

    The NPC Standing Committee's powers of legislation is not without restraints. Compared with the legislative power of the NPC， the Standing Committee may not amend the Constitution. But it is authorized：

    to interpret the Constitution and supervise its enforcement；

    to enact and amend laws， with the exception of those which should be enacted by the NPC；

    to partially supplement and amend， when the NPC is not in session， laws enacted by the NPC provided that the basic principles of these laws are not contravened；

    to interpret laws；

    ……

    to annul those administrative rules and regulations， decisions or orders of the State Council that contravene the Constitution or the law；

    to annul those local regulations or decisions of the organs of state power of provinces， autonomous regions， and municipalities directly under the Central Government that contravene the Constitution， the law or the administrative rules and regulations.

    ……

    From the above provisions， it is clear that not only the NPC and its Standing Committee have the legislative power but also the State Council and the local governments. The law-making powers of local governments may be exercised only by the people's congresses of provinces， autonomous regions， and municipalities directly under the Central Government. The people's congresses of cities where provincial and autonomous region's people's governments are located and the people's congresses of relatively large cities may， with the approval of the State Council， also formulate local regulations which must not contravene the local regulations of their respective provinces or autonomous regions in addition to the Constitution， the law and administrative rules and regulations. Similarly， the people's congresses of the provinces， etc. may not formulate any local regulations contrary to the provisions of the Constitution， the law and administrative rules and regulations. At the same time， local regulations must be adopted 'in light of the specific conditions and actual needs' of the respective administrative areas. Starting from the early 1990's all the Special Economic Zones in China gradually acquired the power to enact local regulations in accordance with the Decision of the Standing Committee of the NPC on Authorizing the People's Congress of the Shenzhen City and its Standing Committee and the People's Government of Shenzhen City to Formulate Regulations and Rules Respectively for Implementation in the Shenzhen Special Economic Zone adopted on 1 July 1992. As provided in the Constitution， the administrative rules and regulations by the State Council must not contravene the Constitution or the laws； otherwise the NPC Standing Committee may declare such administrative rules and regulations as void.

    Structure of Chinese Law

    In accordance with the structure of the lawmaking powers， Chinese law can be divided into four levels， i.e.， the Constitution， laws adopted by the NPC and its Standing Committee， administrative regulations adopted by the State Council and local regulations by the people's congresses of provinces， autonomous regions and cities.

    As provided by the Constitution， the legal superiority descends according to the level of law making authority. The Constitution is the highest and fundamental law of the PRC. It governs the social， economic and political sectors of the country. It is supreme over all other laws. Any law which contravenes the Constitution is void. The Constitution is an entrenched piece of legislation. It can only be adopted or amended by two-thirds of the members of the National People's Congress'. Amendments to the Constitution are to be proposed by the Standing Committee of the NPC or by more than one-fifth of the deputies to the NPC and adopted by a vote of more than two-thirds of all deputies to the Congress.

    At the second level are laws， resolutions， orders， etc. enacted by the NPC and its Standing Committee. The form or title of the legislation is not significant. What is important is the body which enacts it. So long as a piece of legislation is adopted by the NPC or its Standing Committee it has the force of law. The NPC and its Standing Committee being the highest legislative authority may also validate any law passed by the lower legislative body.

    Most of the laws adopted by the NPC and its Standing Committee are general in nature and are therefore usually supplemented by more detailed rules and regulations promulgated by the State Council ministries. Rules and regulations enacted by the State Council or relevant ministries deal with specific matters， especially economic activities， and are applied nationwide. For instance， the Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures was adopted at the second Session of the Fifth National People's Congress on 1 July 1979 and effective as of 8 July 1979； later amended in accordance with the Decision to Revise the Joint Venture Law of the NPC at the 3rd Session of the 7th NPC on 4 April 1990. One year later， the State Council promulgated Regulations Regarding Labour Management in Chinese-Foreign Joint Ventures， and Regulations in Respect of the Registration of Joint Ventures in China. Three years after the adoption of the Joint Venture Law， the State Council adopted Regulations for the Implementation of the Joint Venture Law which provide more detailed provisions for the establishment and management of joint ventures using Chinese and foreign investment.

    Over the last two decades， being the executive body of the highest organ of state power and the highest organ of state administration， the State Council's legislative power has been increased. Firstly， according to the Constitution the State Council is also vested with legislative power. While exercising that power the State Council may adopt administrative measures， enact administrative rules and regulations and issue decisions and orders in accordance with the Constitution and the law. Secondly， in April 1984， the Standing Committee of the NPC passed a resolution requiring its working committees to co-operate with the State Council and various ministries to research and draft legislation for the implementation of the economic policies of China.

    The ministries and commissions under the State Council are also authorized to issue orders， directives and regulations within the jurisdiction of their respective departments and in accordance with the law， the administrative rules， regulations， decisions and orders of the State Council. Ministerial regulations and rules are， in general， more limited in nature and their application is generally within the sphere of the function of the ministry in question. Very often， the ministerial provisions are intended to supplement and implement regulations adopted by the State Council. Immediately after the State Council promulgated Provisions for the Encouragement of Foreign Investment in October 1986， for example， the Ministry of Foreign Trade and Economic Cooperation， which was called the Ministry of Foreign Economic Relations and Trade at that time， the People's Bank of China， and the Ministry of Finance etc. issued implementing rules covering such areas as examination and confirmation of export-oriented enterprises and technologically-advanced enterprises with foreign investment， import and export licences， loans in Chinese currency and taxation. The Ministry of Labour and Personnel also issued labour and wage rules for the implementation of the State Council's Provisions. These ministerial provisions have nation-wide application and may be supplemented by local legislations which take into account the conditions and circumstances of the local area.

    According to the Constitution， local people's congresses at various levels are local organs of state power. As such， local congresses and governments at various levels are permitted to enact laws suitable to local conditions， provided that such laws and regulations do not contravene the Constitution， or the laws or regulations adopted by the Central Government. In other words， local governments may promulgate laws which vary slightly from those enacted by the Central Government. These local laws are valid so long as they conform to the general principles and policies of the legislation enacted by the Central Government. For example， as soon as the State Council passed provisions for the encouragement of foreign investment in October 1986， many provincial governments and local governments promulgated similar regulations to give foreign investors more incentives. For example， the Implementing Measures Concerning Verification and Examination of export-Oriented and Technologically Advanced Enterprises with Foreign Investment， were promulgated by the MOFERT on 27 January 1987 pursuant to the Foreign Investment Encouragement Provisions. These local provisions carry a step further the standards adopted by the Central Government but are still within the general principle of encouraging foreign investments involving advanced technology or for the production of export-oriented goods. They are， therefore， valid laws so far to be implemented in their respective localities.

    General and Special Laws

    Legislation may also be characterized by the nature of the laws in question ie general laws and special legislations. General laws include the Constitution， the General Principles of Civil Law， the Civil Procedure Law， the Criminal Law etc. Special legislations include legislation dealing with foreign investments， such as the Joint Venture Law， the Wholly Foreign-owned Enterprises Law， the Foreign Economic Contract Law and legislations governing matters such as registration of business， labour and management， taxation， exchange control， financial matters， customs duties etc…… In addition， unlike many Western countries， China has adopted a number of statutes which are applicable exclusively to foreign enterprises， Chinese-foreign joint ventures， Chinese-foreign contractual ventures or other forms of Chinese-foreign economic co-operation. An obvious example is the Contract Law. There are currently three contract laws one governing contracts between domestic enterprises， one governing contracts on transfer of technology， and the other on contracts between Chinese and foreign enterprises and individuals. In addition to the three main Contract Laws， provisions on contracts may be found in the General Principles of the Civil Law， Law of Trademarks， Patent Law， Copyright Law， Railway Law， Maritime Law， Law on the Protection of Consumers' Rights and Interests， and Law of Commercial Banks. During the last ten years， the State Council promulgated about 20 administrative rules or regulations on economic contracts， and the Supreme People's Court issued nearly 50 sets of judicial interpretations on cases of economic contracts.

    The Constitution stipulates that law includes the administrative rules and regulations enacted by the State Council which have nationwide applications. Accordingly， such rules and regulations may be referred to by the court in handling cases. The question is what may constitute administrative rules and regulations of the State Council. As discussed earlier， under Chinese law， substance is more important than form as far as legislation is concerned. It is true that the Constitution mentions both administrative rules and regulations but they are stipulated in the same category of orders and decisions of the State Council. The logical interpretation is， therefore， that all the provisions and measures adopted by the State Council， regardless of their form or title， have the same effect and should be regarded as administrative regulations.

    Some scholars make a distinction between administrative regulations and administrative rules. According to them， the former refers to the provisions of the State Council whilst the latter denotes the rules and measures adopted by the ministries and commissions under the State Council. The significance of the distinction is that the court have no obligation to refer to administrative rules as they are not administrative regulations. In practice， however， the distinction is not that important. The reasons are two fold. Firstly， the court does refer to administrative rules in handling cases. In fact in lots of cases they have to do so， for only administrative rules contain detailed provisions without which the parties rights' and obligations may not be ascertained. Secondly， administrative rules may be elevated to administrative regulations through the following methods：

    promulgation by the State Council. In such cases， the administrative rules may be drafted by the ministry or commission concerned， but promulgated in the name of the State Council；

    approval by the State Council， i.e.， State Council consents to the draft by the ministries or commissions under it but the administrative rules are promulgated by the relevant department.

    IV. Procedures of Law Making

    In their law making procedures， neither the NPC nor its Standing Committee has adopted the various stages of reading bills. Laws may be adopted at any session of the NPC or its Standing Committee.

    NPC's Procedures

    The NPC holds an annual session with two-thirds of member to forma quorum. Before a session， members are grouped into delegations based on the units that elected them. In practice， delegates of the NPC from the same province， autonomous region or cities directly under the State Council are grouped into one delegation. The deputies from the army also form a delegation. The importance of grouping is that a lot of activities including submitting bills are done within or in the name of a delegation. For instance， Article 21 of the Rules of Procedure for the NPC provides that 'a delegation or a group of thirty or more deputies' in addition to the Presidium， the Standing Committee and the special committees of the NPC， the Central Military Commission， the Supreme People's Court and the Supreme People's Procuratorate， may submit to the NPC bills or proposals that fall within the scope of its functions and powers.

    After a bill is placed on the agenda of a session， the sponsor， the relevant special committee or the relevant office of the NPC Standing Committee should provide information so that it can be debated by the delegations， the Law Committee and special committees. The Law Committee is in charge of gathering views of the deliberations and revise the draft for further consideration by the NPC. If， during the debate， further study on the issue is called for or major dissenting views are expressed， the Presidium may recommend to the plenary session of the NPC to delegate the matter to the NPC Standing Committee for further deliberation or action or to defer the matter to the next session. Except for amendments to the Constitution， all laws and decisions are adopted 'by a simple majority vote of all the deputies'. Voting may be done by ballot， a show of hands or other means， whilst amendment of the Constitution requires ballot.

    Procedures of the Standing Committee

    During the last two decades， most of the laws in China were adopted by the Standing Committee of the NPC. Now the Standing Committee has established detailed procedures for law making. As mentioned earlier， the Standing Committee meets every two months. The quorum for the meeting is 'more than half of the members of the committee'. When the Standing Committee meets a number of people may attend without the right to vote. They include leading members of the State Council， the Central Military Commission， the Supreme People's Court， the Supreme People's Procuratorate， chairmen and vice chairmen of the special committees of the NPC， members and advisors of the relevant special committees， leading members of the relevant departments， the chairman or one of the vice chairmen of each local people's congress at provincial level. Thus meetings of the Standing Committee can be quite large and views of different interest groups may be expressed.

    Ten or more members may propose a bill or proposal for deliberation at the Standing Committee meetings. The condition for submitting bills is that the matter must fall into the functions and powers of the Standing Committee. Others who may submit bills include the State Council， the Central Military Commission， the Supreme People's Court， the Supreme People's Procuratorate and special committees. The Council of Chairmen has the power to decide whether a bill should be placed on the agenda of a meeting or whether it should be referred to a special committee for deliberation and study.

    Once a bill is placed on the agenda of the Standing Committee meeting， an explanation will be given by the sponsor or the department concerned； then it will be referred to the relevant special committee for deliberation after which the Law Committee will deliberate， over it before reporting to the next meeting of the Standing Committee.

    The adoption of bills and proposals requires 'a simple majority of all the members of the Standing Committee'. Voting may be conducted by secret ballot， a show of hands or other methods.

    The final stage of law making is when the NPC and its Standing Committee promulgates the law. Under the Constitution， laws must be promulgated by the President of the State before coming into effect. The President's power is limited to promulgation only， that is he/she may not modify the law. A question which arises is could the President refuse to promulgate a law which he/she is not satisfied with or delay promulgation？ Studies on Chinese Constitution seem not to have touched upon this subject.

    In practice， before a bill reaches legislators， i.e. members of the NPC or Standing Committee of the NPC， it must first go through several informal procedures. In general， a bill would first be drafted by a commission or a ministry under the State Council. It was estimated that in the last few years over 70% of bills that were presented to the NPC or its Standing Committee had been drafted or proposed by the State Council and its ministries and commissions. Expert opinion is sought when the ministry begins to draft the bill. Then the draft would be commented upon by scholars， practising lawyers， relevant ministries， commissions or State organs. At this stage， a lot of changes are generally made and the responsible ministry will take into consideration all the comments and suggestions made by professionals and experts. Consultations between government officials and experts follow. If the responsible ministry or the commission finds the draft satisfactory in terms of its aims and objectives， it will then submit the draft to the State Council for consideration.

    Law-making Procedures of the State Council

    The department responsible for legal matters in the State Council is the Office Legislative Affairs， previously known as the Legal Bureau， which was established in November 1954 and then abolished in June 1959. In April 1986， it was re-established as a department under the State Council. The main functions of the Office of Legislative Affairs include：

    drafting legislative plans for the State Council and organizing the relevant departments to implement the plans；

    reviewing drafts and laws submitted by the various departments to the State Council；

    sponsoring the drafting of important laws and administrative regulations；

    examining and studying the implementation of laws and regulations and making proposals for the improvement of the legal system；

    editing and publishing the laws and regulations；

    strengthening the co-ordination and communication between the various departments， various legislative organs from different places and other relevant departments as well as exchanging legislative experience； and

    other matters entrusted it by the State Council.

    Upon receiving the draft， the Office of Legislative Affairs makes revisions and also invites scholars and professionals to give advice. The Office of Legislative Affairs would also hold meetings with the participation of government officials of all the relevant ministries and commissions in order to seek their views and opinions. Generally， such meetings have an important impact on the allocation of power. The ministries and departments concerned often try very hard to have a larger share of the pie. For that purpose， arguments， either legal， economic or political， are offered by them.

    After completion of the consultation process at the State Council， during which amendments and revisions of the previous drafts are made， the new draft will be submitted to the Legislative Affairs Commission of the Standing Committee of the NPC. The Legislative Affairs Commission is a ministry level organization which is a working committee of the NPC Standing Committee. It has several departments such as the Economic Law Department， the Civil Law Department， the State Law Department and a Research Unit.

    The main functions of the Legislative Affairs Commission are as follows：

    studying and revising the laws drafted by the State Council and other institutions under it， paying particular attention to the co-ordination and unification of various laws and regulations；

    distributing the draft to various institutions throughout the country to solicit comments for the NPC and its Standing Committee to consider when deliberating bills or other drafts；

    organizing the investigation of the issues for drafting；

    organizing seminars to discuss important legal issues or to provide the NPC and its Standing Committee with basic and relevant materials as well as various opinions and comments when a law is being drafted；

    to study and provide the NPC and its Standing Committee with relevant foreign laws and regulations for consideration when drafting a law；

    based on the comment of the NPC's Standing Committee and other relevant institutions， amend bills and proposals. In addition， the Legislative Affairs Commission is responsible for replying to queries concerning legal matters and for the editing， translating and publishing of laws and regulations.

    The same consultative process as organised by the Office of Legislative Affairs of the State Council is conducted by the Legislative Affairs Commission. Therefore， the concerned departments get another chance to bargain should they have lost the first round at the State Council level. It should be pointed out， however， that experts consulted by the Legislative Affairs Commission may be different from those consulted by the State Council or the ministries. The result of such meetings may also be different from those at the State Council level.

    The Legislative Affairs Commission may also initiate bills by itself. In such cases， it must have the instruction of the NPC Standing Committee. In the drafting process， views of the State Council， relevant ministries and commissions must be gathered. Experts are also consulted on the draft law.

    All laws which reach the NPC or its Standing Committee， whether proposed and drafted by the State Council and its ministries and commission or by the Legislative Affairs Commission of the NPC， as discussed earlier， must be promulgated by the President before coming into force.

    V. The Judiciary

    Under the Constitution the people's courts of the PRC are the judicial organs of the state. The people's procuratorates are the state organs for legal supervision. The judicial and the procuratorial organs of the state are created by the people's congresses to which they are responsible and by which they are supervised. Being organs of the state the judiciary and procuratorate must apply the principle of majority rule.

    The current judicial system can be traced back to the 1930's when the first Supreme Court was established in 1931 in the Chinese Soviet Republic. The term "people's court" was adopted in 1948. Thereafter， the court system was formed in accordance with the principle of uniformity. The first Organic Law of the People's Court was adopted in 1954 and was amended in 1979 and 1983. Under the Organic Law of the People's Court， judicial power is exercised by the courts at four levels， namely， the basic people's courts， intermediate people's courts， higher people's courts and the Supreme People's Court plus special courts. The basic people's courts， intermediate people's courts and higher people's courts are generally referred to as local people's courts.

    Organization of the Courts

    The basic people's courts are established at the county and district level. It was reported that by 1994， there were 3，067 basic courts in China. A basic people's court is comprised of a president， vice presidents and judges. Every basic people's court is divided into a criminal division， a civil division， an economic division and an enforcement division， each with a chief judge and associate chief judges. Tribunals may also be set up in accordance with local conditions and population.

    Intermediate people's courts are courts at prefectures of a province or autonomous region， municipalities directly under the central government or directly under the jurisdiction of a province or autonomous region or autonomous prefecture. By 1994， there were 391 intermediate courts.

    The higher people's courts include higher people's courts of provinces， autonomous regions and municipalities directly under the central government.

    The Supreme People's Court is the highest judicial organ and it is at the highest level in the hierarchy of the people's courts. It supervises the administration of justice by the people's courts at various levels and by the special people's courts. The Supreme People's Court is responsible to the NPC and its Standing Committee. The Supreme People's Court is situated in Beijing.

    The special courts are military courts， maritime courts and railway courts. There are 54 military courts and 73 railway transport courts as well as 10 maritime courts established in Guangzhou， Shanghai， Qingdao， Tianjin， Wuhan， Dalian， Haikou， Xiamen， Ningbo and Beihai.

    China follows the principle of two instances of trials for final adjudication； one is first instance and another on appeal. Judicial supervision is also applied while a case is being decided by courts.

    Under the current system， the jurisdiction of each court is assigned by the law. As far as the basic people's courts are concerned， they serve as the courts of first instance. The intermediate people's courts and higher people's courts， whilst serving as courts of second instance （appeal）， may also serve as courts of first instance， in accordance with the law such as the Criminal Procedure Law， the Civil Procedure Law， etc. When a lower court， say a basic people's court， after having accepted a case， decides that the case should be handled by a court of higher level； it may then transfer the case to the intermediate people's court of the same locality. In criminal cases， a procuratorate may lodge a case of protest to an intermediate people's court， higher people's court or even to the Supreme People's Court. Thus it is fair to say that every court in China may serve as court of first instance depending on the nature and importance of the case in question.

    Jurisdiction by Level

    In general， the jurisdiction of court is sub-divided both hierarchically and geographically. Hierarchical jurisdiction is a term referring to the principle that courts should exercise jurisdiction in accordance with the authorisation stipulated by law， i.e. important cases are to be handled by the courts of a higher level. Under the Civil Procedure Law， basic people's courts， subject to Articles 18 to 21 of the Civil Procedure Law， hear all civil cases as courts of first instance.

    Article 19 of the Civil Procedure Law provides that intermediate courts have jurisdiction as courts of first instance over：

    major cases involving foreign interests；

    cases that have substantial impact on the community within their geographical jurisdiction； and

    cases under the jurisdiction of the Intermediate People's Courts as determined by the Supreme People's Court.

    Higher people's courts have jurisdiction as courts of first instance to hear civil cases which have substantial impact on the community within their geographical jurisdiction. Article 21 of the Civil Procedure Law stipulates that the Supreme People's Court has the jurisdiction as the court of first instance to hear cases if the cases have substantial impact on the whole country or the Supreme People's Court deems it should adjudicate.

    Prior to the adoption of the Civil Procedure Law， the Civil Procedure Law （Trial Implementation） provided that all cases involving foreign interests must be heard by an intermediate people's court as the court of first instance. The delegation of jurisdiction to the basic people's courts over cases involving foreign interests is a sign of 'gradual perfection of economic tribunals' in China. Apparently， with growing economic exchanges with foreign countries， there is an increasing need for the basic people's courts to share the case-load of intermediate people's courts. The experience in adjudicating civil and economic cases gained by the courts in the late 1980s and the early 1990s seems to be another contributing factor for this delegation. Although the higher people's courts and the Supreme People's Court may serve as the court of first instance for important cases in the relevant region or for the whole country respectively， they basically serve as courts of appeal.

    Jurisdiction by Geographical Locality

    The basic principles regarding geographical jurisdiction are as follows：

    A civil lawsuit brought against a citizen shall be under the jurisdiction of the court in the place where the defendant has his domicile. If the defendant's domicile is different from his habitual residence， the lawsuit shall be under the jurisdiction of the court of the place of his habitual residence.

    A civil lawsuit brought against a legal person or any other organisation shall be under the jurisdiction of the court of the place where the defendant has its domicile.

    Where the domiciles or habitual residences of several defendants in the same lawsuit are in the areas under the jurisdiction of two or more courts， all of those courts shall have jurisdiction over the lawsuit.

    In cases that involve contractual disputes or tortuous liability， the court of the place where the defendant is domiciled， where the contract is performed， or where the tort has been committed， has jurisdiction. Where more than one court has jurisdiction over the same dispute， the court that first accepts the case should exercise jurisdiction.

    Principles of Adjudication and Out of Court Settlement

    In addition to the provisions of law， Chinese courts also attach importance to fairness when deciding a case. In practice， in civil cases， Chinese courts always encourage out of court settlement. The parties concerned may， with the assistance of the court， have their dispute resolved through conciliation. Article 85 of the Civil Procedure Law explicitly stipulates：

    In conducting civil proceedings， the people's court shall distinguish right from wrong on the basis of clear facts and conduct conciliation between the parties on a voluntary basis.

    Article 91 of the Civil Procedure Law further states that：

    If no agreement is reached through conciliation or if either party backs out of the settlement agreement before conciliation statement is served， the people's court shall render a judgment without delay.

    Under Article 90 of the Criminal Procedure Law， a conciliation statement is not necessary in the following cases if conciliation is successful：

    divorce cases in which both parties have reconciled；

    cases in which adoptive relationship has been maintained；

    cases in which the terms of the settlement can be readily executed； and

    other cases which do not require conciliation statements.

    Conciliation may also be administered by conciliation committees set up at grass-roots， governments and neighbourhood committees. Such conciliation committees should follow the directives of the local government and the people's court in the locality. It was estimated that in 1993 there were about 950，000 conciliation committees with 6，000，000 conciliators in China. In 1986， more than 7，370，000 disputes were settled through conciliation. They involved marriage， inheritance， maintenance， alimony， debts， real property， production and management， tortuous acts as well as other civil and commercial disputes and minor criminal cases.

    With regard to disputes involving foreign interests， Chinese courts appear to be more cautious in allowing out-of-court settlements. They seem to pay special attention to the fairness of the settlement resulting either from consultation or conciliation. On several occasions， Chinese courts tried very hard to ensure fairness in respect of dispute settlements involving foreign parties. The Cowpat Village case is an example. The Tianjin Municipal Higher People's Court， having concluded that the contents of the lease agreement and supplement as entered into by the parties had been reached unanimously through consultation， and that they had been signed， sealed and approved by the relevant local government， ruled that：

    The land rent as provided in the contract was RMB1，500 per annum per mu and has been calculated on the basis that the respondent has used the land for three years. [The respondent] has already paid the appellant RMB72，162 for restoring the land. The expenses incurred by the appellant in clearing the site and in restoring the site to a state fit for cultivation and the effective loss incurred in letting out the land for three years come to a sum in excess of RMB53，400. This is not unfair.

    According to the Constitution the people's courts are vested with independent judicial power which it exercises in accordance with the provisions of the law. They are not subject to interference by any administrative organ， public organisation or individual. All cases in the people's courts are heard in public and the accused has the right to defence. Citizens of all nationalities may use the written and spoken languages of their own nationalities in the court proceedings. If a party is not familiar with the spoken or written languages commonly used in the locality， the people's courts are obliged to provide him with translation.

    In sum， the judiciary， like that in any other legal system， is performing its role of the third pillar of the Chinese legal system.

    VI. Interpretation of Law

    With a civil law tradition， China adopts the principle of legislative interpretation. The Constitution entrusts the NPC Standing Committee with the power to interpret the Constitution and laws. As discussed earlier， the State Council and people's congresses at various levels may enact administrative regulations and local regulations respectively. The basis of legislative interpretation is that those who make the law know the meaning of the law and are in the best position to interpret it. According to this theory， in addition to the NPC and its Standing Committee， other law making bodies including the State Council and the standing committees of local people's congresses should also have the power to interpret the law.

    Principle of Legislative Interpretation

    The theory of legislative interpretation requires restraints of the power of judiciary in relation to interpreting laws. In China， the court has the power to implementing （not to interpreting） the law. Without ascertaining the meaning of law， however， the power of implementation can hardly be exercised. In this regard， the more detailed interpretation （ascertaining meaning） is given by the legislature， the easier it becomes for the court to implement. As China's legal reforms and enactment of law started without adequate qualified legal professionals associated with law making bodies， detailed interpretation by such bodies has not been possible. As a result， the system has instituted， in fact， a shared interpretative power. The Resolution of the NPC Standing Committee on Strengthening the Work of Law Interpretation， adopted on 10 June 1981， prescribes：

    all articles in laws requiring further definition or supplement stipulations shall be interpreted or stipulated by law by the NPC Standing Committee；

    all questions arising from court trials concerning the specific application of laws and decrees shall be interpreted by the Supreme People's Court. All questions relating to the specific application of laws and decrees in the procuratiorial work of the procurators shall be interpreted by the Supreme People's Procuratorate. In case there is a difference in principle between the interpretations of the Supreme People's Court and the Supreme People's Procuratorate， the NPC Standing Committee shall be asked to give an interpretation or decision；

    all questions on the specific application of laws or decrees that do not come under judicial or procuratorate work shall be interpreted by the State Council and the responsible department；

    all articles of law of local character requiring further definition or supplement stipulations shall be interpreted or stipulated by the respective standing committees of provinces， autonomous regions and municipalities that formulated those regulations. All questions concerning the specific application of laws and regulations of a local character shall be interpreted by responsible departments under the people's governments of provinces， autonomous regions and municipalities.

    In practice， the NPC Standing Committee has not yet given any formal interpretation of any law. Even when it was asked to do so， it refused to exercise the power. For instance， the Arbitration Law of China does not explicitly authorize the China International Economic and Trade Arbitration Commission （CIETAC） to handle disputes with foreign elements on an exclusive basis.

    Before the promulgation of the Arbitration Law， all disputes involving foreign elements were exclusively handled by the CIETAC， as it was established for that purpose only. However， the Arbitration Law has now institutionalized the domestic arbitration system in China. In order to establish a well-equipped regime of arbitration in China， the Arbitration Law does formulate special provisions dealing with arbitration involving foreign elements. After the enactment of the Arbitration Law， the General Office of the State Council issued a Notice stating that other arbitration commissions may also exercise jurisdiction over disputes involving a foreign element provided that parties to the disputes choose to have their differences resolved by these commissions. This Notice constitutes a declaration of abolishing the monopoly enjoyed by the CIETAC for several decades. Much displeased with the Notice， the CIETAC requested the NPC Standing Committee to interpret the Arbitration Law. The effect of the interpretation， if given， will touch two issues： （1） whether the Notice issued by the General Office of the State Council constitutes an administrative regulation； and （2） whether the Notice is in compliance with the Arbitration Law. The request by the CIETAC was referred to the Legislative Affairs Commission of the NPC Standing Committee for study. No reply or interpretation has been made so far.

    Judicial Interpretation

    The lack of action on the part of the Standing Committee of the NPC in relation to law interpretation has left much room to the court. The court， unlike the legislature， must hear cases and apply the law. Whilst without instructions from the legislature and with the authorization of the 1981 Decision discussed earlier， the Supreme People's Court has issued thousands of pieces of judicial interpretation to guide the lower courts. Such judicial interpretations have binding force on all the courts in China and cover almost every aspect of the legal system and thus play an important role in the law enforcement in China. The scope of judicial interpretation is so vast that the function of the court in China regarding interpretation of law can hardly be said as different from their counterparts in other countries. An example arises from enforcement of arbitral awards made in Hong Kong after 1 July 1997 when the hand-over took place. Prior to the hand-over arbitral awards made in Hong Kong were treated as New York Convention awards. （The Standing Committee of the National People's Congress adopted a Decision Concerning China's Accession to the New York Convention on 2 December 1986， and China became a party to this Convention on 22 April 1987. Hong Kong is not a party to this Convention， however， by virtue of Britain's participation in this Convention， later on it was extended its application to Hong Kong on 21 April 1977. This situation changed with the hand-over of Hong Kong to China in 1997.） After the hand-over， however， no arrangement has been made as how Hong Kong awards be recognized and enforced in China. A few months after the hand-over， a party from Hong Kong requested a court in Jilin Province to enforce an award made in Hong Kong. The court did not know what law should be applied， in particular if Article 260 of the Civil Procedure Law dealing with the enforcement of awards involving a foreign element should apply. The court in Jilin then requested the Supreme People's Court to give an interpretation. Having said the above， the status of judicial interpretation is still not the same as legislative interpretation. In the past， on numerous occasions， the Supreme People's Court announced to invalidate its previous interpretations on the ground that they contravene the laws subsequently adopted.

    To conclude， the Chinese legal system has undergone substantial changes over the last two decades. Before the policy of opening to the outside world and domestic economic reforms was introduced in the late 1970s， the Chinese legal system was essentially based on a planned economy and Marxist theory. Since then， the Chinese government has been learning the experience of foreign jurisdictions in relation to commercial law. With inflow of foreign capital and technology as well as foreign commercial law concepts， the Chinese economic system changed from a purely planned economy to an essentially market orientated economy. In order to cope with the requirement of further opening the domestic market and enlarging economic co-operation with foreign countries， the pace of legal reform was quickened over the last few years. A number of laws， not only in the area of commerce but also in the field of public interest， were adopted. The trend is that China will make its laws， at least the commercial laws， compatible with the laws prevailing internationally and with international practice. Such development will inevitably affect the public law making and enforcement of laws by the court and other bodies. In a word， with China's market becoming more mature and more open， its legal system will become more transparent， fairer and more desirable.

    the laws prevailing internationally and with international practice. Such development will inevitably affect the public law making and enforcement of laws by the court and other bodies. In a word， with China's market becoming more mature and more open， its legal system will become more transparent， fairer and more desirable.

3ks

好长哦，全部看完真的需要一些时间，而且，有很多地方要查单词才行，我应该打印出来慢慢研究

老师的英语真好，可以教教我如何学的这么好吗？