Indeed, the legal reform initiated by Deng Xiaoping was performed under total control and domination under the CPC throughout the legislative process at both national and local levels. It was only possible to the extent that it does not challenge the Communist Party and was only intended to benefit the development of the country, at any time, without considering political reform judged too destabilizing.
Thus in practice, it is the executive which both makes the laws and enforces them, which is obviously contrary to the mainstream.
Inadequacies of the legal system
Youth Chinese legal system, the haste with which it is established, its many influences, but also the size and characteristics of the country’s population now explain a number of underlying problems.
Take for example the “method of experimentation”, a phenomenon unique to China.
Country size and inexperience in some areas of law makes law enforcement difficult in practice. This is why the Chinese government uses the method of experimentation in the context of this society in transition, which is to implement a law on an experimental basis by applying only locally. Indeed, in a new area, the NPC Chinese national, and its Standing Committee may authorize local law beyond national legislation to end of the experiment. If this experiment is successful, this local law may become a national text. The experimental laws applied in the city of Canton represent nearly 62% of all national legislative production!
In the same vein, we are faced with a multitude of organs that produce texts with legal value, and at different levels of government (the NPC national to local levels 3) on a vertical plane, as horizontally organizations covering different areas. This complex and chaotic legislative and administrative authorities not only makes harmonization difficult, but is especially obvious contradictions source, generating a particular risk for the company.
What also let consider China as a federal state rather than as a unitary state, as define its constitution.
Because when the question of the application of Chinese law, we realize that given the size and regional diversity of China, the uniform application of legal standards is difficult. Several factors come into play, including the region concerned, and political, national or local. How to treat in the same way that the Shanghai Economic Development and Western influences are well established, and the Xinjiang Uygur province in the extreme north-west of the country, whose economic development is still in its infancy.
Thus the pyramid prevalence legislation is completely blurred in China. When normally it is the constitution of a state that ranks above other laws (parliament laws and administrative) must be in accordance with it, in China we are left with a constitution advocating principles beautiful on paper, but are far from being effectively applied for all the reasons mentioned above, which should be added the problems of corruption that the current leaders are struggling to solve.
For example, the PRC Constitution provides for freedom of expression, association and organization. But in reality, these freedoms are exercised often impossible because of administrative authorities requiring permits and authorizations of any kind that eventually lead not discourage or simply more motivated.
A legal system that seems still incomplete, particularly with regard to Western of systems. The mass production of legislation loses effectiveness by the lack of effective implementation of the law, the confusion in their founding principles and contradictions generated by this lack of cohesion, and finally the difficulty to perceive the law as the first element, yet difficult to talk about rule of law …
Yet, since 2001 with the entry of China into the WTO, many begin to think that China is going to become the rule of law it is not yet.
What about today? And after?
The WTO and after? What are the prospects for the Chinese legal system?
China’s accession to the WTO and its impact on the right
On 10 November 2001, China joined the WTO after a decade of negotiations.
As we saw earlier, this is not the accession to the WTO has prompted China to overhaul its law. However, unlike the voluntary reform conducted under Deng Xiaoping, then China is under international pressure to keep the commitments imposed by the WTO, the principles of uniform application of law, transparency, and control impartial and independent judicial review of administrative acts relating to WTO law. However, the application of these three key principles should contribute to the gradual establishment of a rule of law to the extent that they require changes on an unprecedented scale institutional and indirectly in almost all areas of law.
Indeed, at the time it is one of many aspects highlighted by the propaganda machine used to convince people of the benefits of Chinese accession to the WTO: the emergence of a rule of law from acceleration of the process of reform and opening up started then there is more than 20 years.