This is an exciting topic: China is in the midst of a fundamental transformation to law, but this process might take generations

Background factors

• Big Debate in Chinese Philosophy:
• Confucian idea of rule by ethical men, not law
• Traditional of "legalism" (Han Feize)
• Resolution
• Gov't uses law to regulate people
• law does not regulate government
• possible but difficult to sue the state 1
• Principle of Avoidance
• Involvement of courts is expensive (need to pay lots of bribes)
• As a result, people avoid courts, use informal arbitration

Simple, non political cases (minor crimes, civil cases)

• informality, hearings at work site, neighborhood
• procurator
• judge, two lay assessors, no jury
• informal consultation with community

• Party secretary has power to direct a verdict (local emperor)
• lack of due process
• judges are often illiterate, retried army officers, gradually being replaced with educated people
• freqent beatings, isolation
• Capital punishment Dec-05
• very widely used -- China executes  more people than the rest of the world combined
• execution by shooting to back of head (brain stem)
• recent use of lethal injection
• sometimes integated with organ recovery (many ethical issues involved)
• considerable discussion now about errors in judgement
• clear report on errors in prosecution 1 | 2  to maintain careers and "social stability"

• Courts
• 3,000 basic people's courts (counties, cities), 18,000 people's tribunals (commune, township) for mediation
• 380 Intermediate People's Courts
• 30 Higher People's Courts
• Supreme People's Court (judicial review belongs to Standing Committee of NPC)
• Procurator  constitutional status
• prosecuting attorney, grand jury, issues arrest warrants, considers adequacy of evidence
• cases coming to court almost always win conviction
• 1996 - revised procedures:
• In the past, the Procurator's office was empowered to "exempt a case from prosecution."  This meant the Procurator could decide a person was guilty and determine the punishment, without a trial before a judge (and before a person had the benefit of a lawyer, and had  no right to see the evidence, no right to present evidence!)  About half the cases were determined this way, mostly economic cases (bribes, corruption). This type of procedure was ended (in theory) in the 1996 revision of the Criminal Procedure Law.
• Previously, procurator could not dismiss a case.  If evidence was weak, it was sent back to police for investigation (and the suspect stayed in jail).  After 1996, Procurator had power to terminate a case if the evidence was insufficient.  This is ued in about 1-2% of cases.
• Procurator can return a case to police for handling, often resulting in "Reducation through labor" (without judicial oversight).  Used in about 3-4% of cases.

• Codification of Law
• Security Administrative Punishment Regulations (1957, 1986, 1994) empower police to punish
• Criminal Code and Procedure, 1979-1980
• Marriage Law, 1980
• Inheritance Law, 1985
• Civil Law General Rules 1987
• Bankruptcy Law draft 1986
• Marriage Registration and Regulation Act 1994
• State Compensation law, 1995 - people can sue government for damage
• Draft Law for Lawyers, 1996
• Criminal Procedure Law, 1996
• New needs dealing with economy
• contract disputes, ownership, copyright, ownership rights, bankruptcy

• Enforcement of Laws
• big problem: local protectionism, local power, need to get support of local police
• periodic programs by central government to require/protect enforcement

• Lawyers
• a growing profession, as there are more laws, more property
• international finance, bonds, investments
• domestic economic contracts
• family - divorce, inheritances (of housing as well as other property)
• increasing idea of suing others for compensation for damages
• China's courageous defense lawyers 1 | 2 | 3
• labor law esp. workman's compensation

• Mediation
• handles 90 percent of cases
• 6 million mediators vs. 150,000 lawyers (ratio = 40:1)

• Public Security Bureau
• needs order from court or procurator to arrest
• runs big labor camp system (gulag) Alexander Solzhenitsyn
• Harry Wu's Laogai Research Foundation
• Labor Reform (Lao gai) is judicial
• Labor Education (Lao jiao) is "administrative"
• press article, 2005
• Prison can be very brutal, physical punishment NYT-dec3-05

• National Security Agency
• modeled after KGB
• "monstrous security bureaucracy staffed by secret agents who spy on both Chinese and foreigners."

• In the Era of Reform, People are eager to use courts, sue others
• Sue city for negligent road work, causing injury to bicyclist (1986)
• Sue spouse for abortion
• Sue hair dresser
• As people have more property, there are more disputes
• people are sueing police and administrators for violating their rights 2007
• Ultimate Constraint: Communist Party Power
• political pressures on judges to ignore national law  Nov11-05       Keep Party in control Feb07
• But, dialectically, the Party also needs legal reforms to strengthen its own legitimacy
• Pressure to conform to international standards   BR Nov 3, 2005

• Strategy for legal reform: work within or outside the system?

• NYT series on legal reform in China

• Interesting article about local justice in New York shows that even in the U.S., "rule of law" is tempered by political and social factors.

Links on China Law:

• Chinese laws, translated:  http://www.lawinfochina.com
• China law (U. of Md)   http://www.qis.net/chinalaw/
• Research Guide to the Laws of China: http://www.llrx.com/features/prc.htm
• Internet resources on laws of China: http://ls.wustl.edu/Chinalaw/mainland.html
• Emphasis on international business law: http://www.chinatoday.com/law/a.htm

• Allyn and Addle Rickett, Prisoners of Liberation, 1957
• Ruo-wang Bao (Jean Pasqualini) and Rudolph Chelminski, Prisoner of Mao, 1973
• Sidney Rittenbert, Man who Stayed Behind, 1993 (covers more than prisons)
• Harry Wu, Bitter Winds, 1995.