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Free «Chinese Law and Society» Essay Sample

Chinese law is considered to be one of the oldest in the whole world. During the 20th and 21st centuries, Chinese law has been a complicated mix of more traditional approaches combined with strong Western influences. Under the two major philosophical schools this law was shaped: Confucianism showed that the government must lead its people with virtue by creating a strong sense of shame that can assure no bad conduct; and Legalism which presumed that law has to be based on public standards of conduct that are backed by state power.

The difference and, therefore, tensions that appear due to it lie in the fact that Confucianism aims to make the leader of the country also the leader of Chinese household, whereas Legalism ensures a common law that even binds the emperor’s powers. However, after the Revolution in 1911, the Republic of China overtook legal code of the West, particularly of German type. In 1949, the People's Republic of China adopted more Soviet-like socialist law system. Nonetheless, some older traditions have still retained the major impact on the law implementation in the whole society even to the present day (Xiao, n.d.).

Nowadays, the law in China is undergoing a gradual reform. A lot of factors of internal and external origin stress on the need to strengthen the Chinese rule of law, especially with the globalization and international trade encouraging transformations in a wide variety of areas of domestic law. The Constitution, which was formed in 1982, states in Article V that no individual or organization can be above the law. In Article III, it is said that the state administration and People’s Congresses are responsible in front of all people, making the way for future efforts to permit enforcement of individual rights. A passage from the Administrative Litigation Law which was adopted in 1987 formed a legal option for individuals from the arbitrary government which was previously unavailable. In spite of the deep-rooted norm against any legal proceedings, in recent years litigation in the courts of China has increased drastically (Xiao, n.d.).

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The introduction and interpretation of the legal texts from the West is considered to have been adopted under the rule of Lin Zexu in as early as 1839 and increased in 1862 with the governance of Tongwen Guan. This process lasted till the 1920s when the first modern background for Chinese legal system and law was established. Till 1936 the final steps were made that turned the Chinese law more into Western-like type.

When talking about the law, certain areas of China should be taken into consideration. For instance, in Taiwan it is mostly a civil law structure. The legal system is presented by the Six Codes: the Civil Code, the Constitution, the Code of Civil Procedures, the Criminal Code, the Code Administrative laws and of Criminal Procedures (Xiao, n.d.).

The Constitution gives the leadership to the working class led by the Communist Party. This current Constitution also includes quite extensive rights in comparison to any of the former constitutions. The rights promote equality in front of the law, personal and religious freedom, political rights, economic and social rights, familial rights, and educational and cultural rights. However, all of these rights are bound to social duties: Maintaining the unity, interests, honor, and security of the country, paying taxes, observing social ethics and sticking to the law, serving a term in the military (Lynch, 2012).

The Constitution ensures its own supremacy. On the other hand, it has been proved that the Communist Party supremacy means that the law and the Constitution are not far from being supreme which is the result of the Marxist theory on law: A superstructure together with a poor recognition of the law rule in historical or philosophical tradition. Nonetheless the fact that the Constitution ensures legislative, judicial, pro-curatorial, and executive powers, all of them are still under the strong influence of Communist Party leadership. Frequently, crucial political decisions are worked out with the application of the actions which are not controlled by the Constitution. Moreover, courts cannot rely on the Constitution while solving cases. Despite this, the Constitution provides the general framework for governmental behavior.

Legislation has also provided the government with a good deal of legitimacy and has increased the level of predictability. Recently, the significant efforts to strengthen and rationalize the legal system aiming at improving and developing the professionalism of legal performance, legislative and judiciary branches have been made. Legal forums are now taking on the growing influence due to the market reforms which only increased social inequality.

The Administrative Procedural Law adopted in 1994 has enabled citizens to file lawsuits against officials who committed malfeasance or used their authority to abuse the rights of others. Moreover, the criminal procedures as well as the criminal law were corrected to introduce major reforms. The amendments of the criminal law eliminated the crimes of "counter-revolutionary" processes. The reforms of criminal procedures have encouraged the creation of a more competitive and transparent trial process. Drug use and prostitution as well as a row of similar misdemeanors, which belong to the minor crimes, are frequently treated to reach re-education by means of labor laws (Lynch, 2012).

The main Chinese principles of legislature implementation stick to flexibility and generality. Unfortunately, the overwhelming generality and constant neglecting of the Chinese law, doubles by the broad, unrestricted powers on local authorities to exercise laws, lead to the loss of certainty and predictability of law. In addition, the Chinese law is supposed to be educative, therefore, the law language is the ordinary language which can be understood by the average citizens; however, a lot of laws are still described through indeterminate and unclear language.

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Resulting from the stagnant trade war of China with the United States of America due to the violations of rights on the intellectual property of a wide range of American corporations in the beginning of the 1990s, the Chinese trademark law was altered and now allows serious protections to the owners of the foreign trademark (Xiao, n.d.).

What concerns some more Chinese areas, even despite the change of sovereignty, Macau  and  Hong Kong are still practicing Portuguese legal systems and English Common Law respectively, having their own final appeal courts. This means that Macau and Hong Kong are beyond the frames of the legal jurisdiction of China, except for the constitutional issues (Lynch, 2012).

With the constantly growing complexity of Chinese laws, the extension of the law rule combined with the increase of foreign law firms, China has started developing a market of legal services. Outlandish lawyers have introduced foreign capital together with their clients to the Republic of China which has influenced immensely the spread of newer Chinese laws that are based on more international norms, particularly those that rule securities  and corporate law and intellectual property.

It is important to note that in 1992, the Chinese government opened the market of legal services to outlandish law firms giving them the opportunity to start businesses. As a result, a great number of foreign law firms, including national Wharton & Garrison, Weiss, Baker & McKenzie and Paul, and Rifkind  together with some British companies, incorporated consulting firms in Hong Kong, eventually setting up subsidiaries in Shanghai or Beijing to provide legal services (Xiao, n.d.).

Nevertheless, there still a lot of regulatory barriers that make it very difficult to protect the Chinese national legal industry. Problems that concern the Chinese law have be referred to Chinese law firms as foreign lawyers are banned from practicing or interpreting Chinese law as well as representing their own clients into the court. Nevertheless, a lot of foreign law firms apply laws in their own way and even perform litigation by ruling the local firms they are supposed to have collaborative relationships with. Because of this, Chinese restrictive legal market may be tied to those people who assert their legal rights in front of the unrestricted corruption.

The data obtained from the State Council Legislative Office shows that China might be permitting foreigners to take over the Chinese Lawyers Examination, or possess a mutual recognition treaty together with some other countries to enable foreign lawyers to apply non-litigation legal work of China.

Despite the trend of China’s legal platform to proceed with opening up the legal market, Chinese regulations and laws have aided to develop a lot of domestic firms that specialize in meeting demands of a flourishing economy.

Nowadays, foreign practitioners of law can often hear such a phrase in China as f%u01CEzhì which can be interpreted as “rule of law”, however, it remains unclear whether Chinese leaders had in mind "rule by law", that is the instrumental application of laws by rules to help social control and to inflict punishment as was practiced in the tradition of Legalism (Xiao, n.d.).

 
 
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The mere existence of the Chinese rule of law in the country has been widely disputed. When talking about Chinese law, it is difficult to come up with something vital but various expressions like “tightening up the legal system”, “strengthening the law,” “rule by law”, “abiding by the law in administration”, and the “rule of law”. Various shades of meanings have been added to each of these phrases, but scholars and officials from China have used them quite carelessly and frequently interchangeably.

On the other hand, the central government had initially preferred the phrase, “strengthening the law (or legal) system” to the wide-spread “the rule of law”. The thought was that the latter might have a controversial meaning of the instrumentality, whereas the former had a direct meaning of strengthening the institutions and law. “Strengthening the law” implied enforcement of laws and reform of legislation. There are a good number of various theories of the rule of law. One of them is the formal theory of rule of law, or the ‘thin”, and the other, correspondingly, is the "thick" theory (Harris, 2007).

The first theory of rule of law is well-interpreted by Randall Peerenboom as at the initial level of a legal system that presupposes meaningful limitations on the individuals and state in the ruling power, stating that the law is supreme, and all citizens are equal in front of this law. Lon Fuller’s understanding of thin theory shows that the such rule appears in the society when its rules are “general, public, prospective, clear, consistent, capable of being followed, stable, and enforced” (Harris, 2007).

Thick theory rule of law supports all elements of the thin theory and adds a social, political, and economic concept to the rule of law. Therefore, the rule of law is considered by some scholars as presupposing economic or political structures of human rights, liberal democracy, and other perfect socio-legal order. According to some of these scholars China's non-democratic and socialist political practice and system in general is understood as a state of rule by law with law applied by the government as a tool for social control. Despite this, others refer to the thin theory of rule of law to render the meaning of fazhi as a legal, Chinese reality. In addition, some scholars think that China can still fail to reach its aim due to the thin theory of rule of law.

China’s Judicial system is greatly ineffective, too. The main reason for it lies in the access of the procuratorial personnel and police to the disciplinary investigations by the Communist Party. Moreover, they are well familiar with all the details of any case before it even enters formally the judicial process. In addition, when the case is finally referred to the court, the Party provides them with the report of the Discipline Inspection Commission and all official discoveries in it. Therefore, the disciplinary process of the Party, despite the fact that it appears on paper as being completely separate from the legal system, infects negatively the judicial process, making independent judgment (Lynch, 2012). 

It is relevant to mention when talking about this second principle, the adoption of the Administrative Permission Law of the People’s Republic of China on the 27th of August 2003. For the first time in Chinese history, a law has required all regulations and laws that presuppose any civil act to sanction requirements to be published for general access by everyone. It has also provided that only those laws that were adopted by the National People’s Congress or, correspondingly, its Standing Committee, including the local regulations promulgated by the congresses of local people and administrative regulations adopted by the State Council can impose administrative sanction requirements.

Individual agencies or even ministries (local or central) do not have any of these powers except for certain specified circumstances. This corresponds to the hierarchy of regulations and laws introduced under the Legislative Law of the People’s Republic of China. The adoption of the mentioned law represents a promising step forward.

In spite of the newly promoted role of the Chinese courts in society, there still a lot of defects that make China’s legal system quite ineffective, especially regarding its progression towards the rule of law. Political analysts outline the following defects that are most probably slowing the movement towards rule of law (Harris, 2007):

-       The National People’s Congress is inefficient at executing its constitutional power in order to supervise and legislate the government;

-       The legal profession is improper as it lacks qualified judges and attorneys. This serious failure is being corrected by the legislation which has aimed at providing higher educational standards for attorneys and judges, starting more law schools and opening courts across the whole country;

-       The judiciary branch lacks independency from constant political pressure;

-       The Chinese Constitution is not accepted to be the supreme law as its effect on the implementation of the law is not seen in the society;

-       An extremely high level of corruption, especially among public officials leads to an increase in the distrust and lack of initiative among common citizens. Personal favors, taking of public money, and bribery are all too wide-spread at all levels of the governmental system.

In conclusion, it is useful to note that despite the significant progress of the Chinese governmental system in many sectors, especially economical one, the country still has many significant issues which, if not solved, may have a lot of harmful effects not only on the political life of China but also on many countries across the whole world due to the growing influence on the economic life of other states. Therefore, certain reforms and more reasonable governing which taken into consideration the interests of all states-partners should become the first thing to do for the People’s Republic of China

   

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