Transformations of China’s Legal System

By staff reporter HUA ZI

FROM “rule of man” to “building a legal sys- tem，” to “rule of law” and finally， to the “rule of the Constitution，” the development of Chinas legal structure epitomizes its learning curve of state governance.

From Rule of Man to Building a Legal System

The first building block of the PRCs legal construction was the establishment of the socialist legal system.

In September 1949， the Common Program of the Chinese Peoples Political Consultative Conference （CPPCC）， which bore the nature of a temporary constitution， was promulgated. Five years later， the first constitution of the PRC was adopted at the First National Peoples Congress （NPC）. It is thus often referred to as the 1954 Constitution.

In the following 20-plus years， China encountered various setbacks in creating a legal system. At a meeting of the central leadership in November 1978， Deng Xiao-ping proposed that the legal system be enhanced in order to guarantee peoples democratic rights. At that time the Third Plenary Session of the 11th Central Committee of the Communist Party of China （CPC） was about to convene. China would soon enter a new stage of mind emancipation， reform and opening-up. The nations legal framework also breathed new life. People started to break restrictions and discuss issues that were previously considered taboo. “I think a new era dawned， one in which the science of law was awakening，” said Li Buyun， a researcher with the Institute of Law at the Chinese Academy of Social Science （CASS）， when he recalled the events of over 30 years ago.

The Third Plenary Session of the 11th Central Committee of the CPC， which took place on December 18， 1978， has been referred to as a turning point in Chinese history. From Li Buyuns point of view， this meeting marked the starting point of the rule of law in modern China. Deng Xiaoping contributed greatly to the rule of law in China. He believed that the primary precondition and decisive factor for the prosperity and lasting stability of a state was a sound legal system instead of one or two wise leaders， according to Li Buyun.

A communiqué of the session stressed that in order to safeguard democracy it was imperative to strengthen the socialist legal system so that democracy would become institutionalized and written into law – the only way to ensure the stability， continuity and full authority of the democratic system and its laws； laws had to be made， observed and strictly enforced， and law breakers must be prosecuted. From that point， legislative work was expected to occupy an important place on the agenda of the NPC and its Standing Committee.

The extensive legislative endeavors made in 1979 are the most obvious symbol of the new era in Chinas construction of the legal system. Under Deng Xiaopings direction， a series of laws concerning different areas needed to be worked out as soon as possible. “It is better to have something than nothing，” Deng said. Therefore， legislation was expedited. In June 1979， the Second Session of the Fifth NPC formulated or amended seven laws including the Organic Law， Electoral Law， Organic Law of the Peoples Courts， Organic Law of the Peoples Procuratorates， Criminal Law， Criminal Procedure Law， and Law on Chinese-Foreign Joint Ventures， marking a big step in law and democracy.

The question of “rule of man” versus “rule of law” triggered a wide debate in Chinas jurisprudential circle at the end of 1970s. The philosophy of the rule of law was gradually accepted by more and more people. “The debate， which lasted for nearly 20 years， laid a solid theoretical foundation for the CPC Central Committee and the NPC to set the ‘rule of law as a central strategy for state governance and ‘building the country on the basis of the rule of law as the countrys goal，” Li Buyun said.

As a new decade dawned， legal scholars published a large body of writings to advocate the rule of law， which played a very important role in spreading its principles.

On December 4， 1982， the Fifth Session of the Fifth NPC passed a new constitution， popularly known as the 1982 Constitution. It was an important milestone in Chinas history of the rule of law and served as a pillar of the legal system in the new era.

Thereafter， a batch of fundamental laws concerning civil affairs， administration and commercial activities were passed， including the General Principles of the Civil Law， the Administrative Procedure Law， Contract Law， Property Law， Company Law， and the Enterprise Bankruptcy Law. In 2011， Wu Bangguo， then chairman of the Standing Committee of the NPC， announced that a socialist legal system with Chinese characteristics had been formed.

By April 2014， China had 242 laws in force. Meanwhile， the formulation and amendment of 68 laws have been put on the agenda of the NPC and its standing committee. In contrast to the previous legislation that centered on fundamental areas， the current laws-in-themaking focus on specific concerns of the public， such as food safety， education and environmental protection.

From Building a Legal System to the Rule of Law

“It took 20 years for China to move from ‘building a legal system to ‘achieving the rule of law， a journey rife with obstacles that jurisprudential circles are all too aware of，” Li Buyun said.

“China has a long history of feudalism. In a country where rule of man has deep roots， upholding the rule of law marks historic progress. It is of epoch-making significance，” said Wang Jiafu， former director of the CASS Institute of Law.

Since the 15th CPC National Congress the phrase“rule of law” has been cropping up with increasing frequency. In 1999， a new paragraph was added to the Constitution， “the Peoples Republic of China governs the country according to law and makes it a socialist country under the rule of law.” In 2002， the 16th CPC National Congress set the comprehensive implementation of the rule of law as an important goal for building a moderately prosperous society in all respects. In 2004， “the State respects and preserves human rights”was included into the Constitution.

In 2012， during the 18th CPC National Congress， the function of the rule of law was redefined as a basic way of running the country. And new principles were also outlined – to make laws in a scientific way， enforce them strictly， administer justice impartially， and ensure that everyone abides by the law. During the Third Plenary Session of the 18th CPC Central Committee， “promoting the rule of law in China” was set as one of the key themes of comprehensively deepening reform.

From the Rule of Law to the Rule of the Constitution

The year 2004 was a turning point for the rule of law in China. “Chinas legal structure was entering the stage of socialist constitutionalism， which is an advanced stage of the rule of law，” said Xu Xianming， former president of China University of Political Science and Law.

He believes there are six symbolic events： First， the countrys decision to integrate the CPC leadership， the position of the people as masters of the country， and the rule of law in the cause of promoting socialist democracy. Second， the statement that “the State respects and preserves human rights” was included into the Constitution. Third， governing the country according to the law was set as the basic way of exercising power. Fourth， the CPC Central Committee put forward a scientific outlook on development with the focus on people， forming a peopleoriented view of law. Fifth， the State Council promulgated the Outline for Promoting Law-based Administration in an All-round Way， announcing its plan of building the government under the rule of law. Sixth， democracy and the rule of law were set as the first of the six basic characteristics of a socialist harmonious society.

In 2007 during the commemoration of the 10th anniversary of the rule of law being raised as a fundamental principle of governance in China， some legal experts believed that China had entered the phase of socialist constitutionalism. At that time， Li Lin， director of the CASS Institute of Law， summed up the 10 years of legal development in China by saying that one of its most important achievements was to propose the concepts of “the rule of the Constitution” and “governing in line with the Constitution，” so highlighting the supreme authority of the Constitution.

The “rule of the Constitution” was again proposed on December 4， 2012. President Xi Jinping， the first president in Chinese history with a PhD in law， said on the 30th anniversary of Chinas 1982 Constitution that running the nation by lawful means， first and foremost， ruling the nation according to the Constitution， and govern- ing by law is at the core of governance in accordance with the Constitution.

Mo Jihong， deputy director of the CASS Institute of Law， pointed out that such a shift in the nations understanding of law is a fundamental transition and， therefore， marks great progress. It indicates a new direction for the CPC Central Committee to comprehensively implement the rule of law， and to improve the partys leadership pattern and governing style based on the Constitution.

In September 2014， President Xi Jinping stressed several times at a ceremony marking the 65th founding anniversary of the CPPCC and 60th founding anniversary of the NPC that China should be committed to the integration of the CPCs leadership and peoples position as masters of the country and the rule of law.

Mo Jihong participated in drafting a decision on major issues concerning comprehensively advancing the rule of law， which was adopted by the Fourth Plenary Session of the 18th CPC Central Committee held from October 20 to 23， 2014. Mo believed that it was of historic significance， for it was the first time in 65 years of the PRC that “the country should be ruled in line with the Constitution”was explicitly put forward in a binding CPC document.

After 65 years of growth China has established a socialist legal system with Chinese characteristics with the Constitution at its core.

Li Lin believes that the rule of law has become a core socialist value， and is thus embedded in the collective values， ideals and lifestyle of the Chinese people.