Optimism of chinese lawyer

What are the prospects in the medium term? What issues?

The Chinese legal system is therefore a great site for which Nombe to solve problems remain, including:

Lack of judicial independence
Difficulties in applying the law, still too much corruption and lawlessness
Administrative interference and obstructions
Lack of transparency
Need tools for better legislation
Need for education, familiarization of citizens in law
Competition and contradictions of state organizations
Just these problems are they updated that already appear on other major projects in all areas, including the draft Civil Code in 2010, reforms of financial law, securities law, insurance law, law competition, to name a few.

 

lawyers are relatively optimistic. This is a daunting task whose execution is time consuming, but gradually things would fall into place.
Consider that 15 years ago, there was no a lawyer in China.

For Christine KARABOWICZ-RIVET (Karasia), “China is facing a major challenge: create your own legal model for economic transition in China, creating a right from a socialist Asia must adapt to an economy market involved globally without compromising its Communist Party, under the pressure of Chinese society itself and international pressure. Measures already taken by the Chinese authorities hold the promise of progress while such advances would have been difficult in the past, but as long as we know what will be the future direction of the current management team. ”

The management team, the Party is perhaps that will take one of the last bastions qualification without hesitation China as rule of law. How to convince them that the only WTO accession could accomplish this transformation when we learn that the terms of ratification of the accession by China were already against the constitution?! Once again the Party decided above all.
But questioning the Party is upset doctrinal resistance and cause unprecedented social destabilization. State law only socialist-oriented economic progress or state? Perhaps the second flow from the first, but already before reaching the first, let us arm ourselves with patience.

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Law in china mainland

Certainly, the transformation of the Chinese legal system has never been considered as important as economic reforms. But we do not hesitate to speak of revolution given the legal codification and institutionalization accomplished, especially since 1992.
Considered useful because it helps to maintain social stability on which economic growth, Chinese law does not care considerations of justice and respect for the human person as quite secondary. Pragmatic and utilitarian, Chinese law is primarily coupled to the definition of a legal framework for business and especially for foreign investment. This evolution is largely with reference to international standards and practices. Thus, as pointed out by B. Pitman Potter, “much of the history of legal reform in the PRC related to difficulties in adapting international standards to the local environment.”

Thus, membership in the WTO has led to gradual changes still in progress today. This is also a particular case is China, which is set for not a single date Butoire for the effective implementation of all the provisions in accordance with the WTO, but a series of deadlines for a gradual implementation of the more straightforward to implement the most difficult.
Because the WTO implies in particular compatibility essential political and economic systems of different countries, with term globalization of legal systems.
A gigantic task ahead for China, when we know that the western capitalist countries advocating free market led to the WTO all their legal system based on the rule of law.
Many changes and must be undertaken on topics that China treated internally, and are now in the scope of the WTO, as is the case for intellectual property, particularly sensitive these days.

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Principle of law in china

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.

 

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Chinese law evolution

Traditionally influenced by Confucianism advocated government by men and distrustful of the law as the supreme yet defended by legalistic China remained for centuries without any real legal system. The first one will come with the creation of the People’s Republic of China in 1949, which, according to the upheavals of Chinese history, will remain unfinished until the reform era under Deng Xiaoping in the years 80 and 90.
What are the current characteristics of the legal system and what are the gaps?
Characteristics and shortcomings of the Chinese legal system

Design and development of Chinese law

In the 20th century, China was crossed by the current communist thought so strong. No wonder that Marxist influence the design of Chinese law.

In addition, Chinese lawyers have always shown a great curiosity for foreign rights. An approach already old: 19th century European influences, particularly French and German, won China through the Japanese law. Today international law and common law also enrich the Chinese law.
Since Deng Xiaoping, China is trying to catch up vis-à-vis the Western states in the development of a sustainable legal system. In his haste, it is therefore based on the examples of each of these states, taking as a principle, that principle on the other the risk of making the right confused.
Found in China and sometimes inspired mechanisms of civil law (codified law very legacy of the Roman Emprire, esssentiellement promoted by European states, primarily based on texts and their interpretation), sometimes common law (law based on study of jurisprudence, different cases, where it is the judges who have the most power, mainly driven by the states of the former British Empire Commonwealth). A duality that is reminiscent of the traditional opposition between legalism and Confucianism in China.
Today the civil law is the most common, but the differences between the two modes tend to become increasingly blurred.

Powers and organs

While the separation of powers (executive, legislative, judicial) is a principle recognized as fundamental by all Western states to speak only of them, China is still a country that does not practice real separation of powers between its political institutions.
In particular, the legislature (which creates laws) and executive (which implements laws) are still relatively unified.

For what is the legal institutions, this is how they are prioritized according to the constitution of the People’s Republic of China (PRC)

 

The legislative branch, represented by the National People’s Congress, appears dominant over the executive, represented by the Council of State, and the Judiciary, represented by the Supreme People’s Court.

In reality, the AFN is 3,000 representatives (for 1.3 billion people, remember), who meet in sessions pleinières 2 weeks, once a year. This meeting has therefore finally a low power, as well as the Supreme People’s Court, compared to the State Council.
More than that, the body that actually holds the power in China, it is not so much the Council of State, but the Party, the Communist Party of China (CPC), since in fact, any body State, whatever its function, an entity headed the Party for the lead. That changes a bit theoretical hierarchy under the constitution, to a version more in line with reality:

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Legacy in china

Legacy

Anyway, this duality has a lasting impact on Chinese legislative system design.

Legalism has left a number of codes, but was confined to administrative areas, mainly for civil servants.
A legacy of Confucianism is undeniable distrust vis-à-vis the law. “Win your lawsuit and lose your money,” “the ten reasons for judgment, nine are unknown to the common man” the proverbs say.
The Chinese tend to live outside the law, regardless of the rules formulated by the law. A Chinese will not rule before the judges but their relationships with others in accordance with his sense of proper, having in view the conciliation and harmony. A trial is disgraceful and disturbing social peace, better find a compromise.

Creation of a genuine legal system and changes since

This explains, with the importance of Confucian thought in China, as China is very long remained without a real legal system.

During the Republic the early 20th century, Sun Yat Sen permeated Western influences, spread the ideas of democracy and separation of powers, and created the first modern Chinese state.
But the first Chinese legal system will come with the founding of the People’s Republic of China by Mao Zedong in 1949.
It is at this time that China will develop its first constitution, which will be reworked until 1954, when his first amendment.
Then until 1979, the law is considered as a means of struggle for power. In particular, from 1966 to 1976, the period of the Cultural Revolution, the legal system is reduced to its simplest expression, neglected in favor of other instruments of social control.
Indeed, the constitutional amendment promoted by Mao Zedong in 1975 reduced the number of articles dealing with the judicial organization of 12 to one, and eliminated some of the most cherished protections bourgeois rights, such as the equality before the law, procedural safeguards, protection of private property, or the prohibition of arbitrary arrest.
Between 1949 and 1963, the Chinese legislative or executive bodies have adopted a total of 1,488 laws, regulations and decrees, but no code or organic law on criminal or civil law has been adopted.

Finally, with the arrival to power of Deng Xiaoping in 1978, an era of reform opens and confirms in its first 10 years about 450 laws. This period of renewal is primarily motivated by the desire to break with the Cultural Revolution, a source of confusion should not occur again, the project of building a market economy, and the desire to attract foreign investors.

In 1979, autarky is formally abandoned. Stability and economic growth will then be the key ideas that will lead to law reform, economic development tool, with the drafting of a new constitution in 1982, amended in 1988, fruit of an incessant concern mainly:
the introduction of economic actors (corporate law and foreign investment),
contract law and competition law,
management of the budget and the central bank,
social security and labor law,
supervision of infrastructure (rail, electricity, civil aviation)
the law of international trade,
the right to intellectual property,
the right environment,
monitoring practices in the marketplace.

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China state of law

The shame that come from any infringement of a social obligation or merely a rule of etiquette, would be one that would prevent people from committing crimes rather than the fear of punishment that would result.
So much so that the Confucian dynastic law is probably the only in history to have anticipated punishments for crime victims because of their denunciation of crimes, even finally found and giving rise to the criminal penalties for the offense. For example, the wife exposing her husband or her husband’s family was punished by three years’ imprisonment and 100 strokes of thick bamboo, and this assuming that the charges are proven (if they were not, the complainant was performed by strangulation).
Confucian thought promoted by the government such as that of the sovereign, virtuous men and sages who by their conduct contribute to educate the people.
Punishment are not completely in vain, but must be limited to the masses.
And even in their application, it will take into account social and moral considerations. Respect rites, loyalty to the emperor and filial piety called benevolence of the sovereign and Mandarin while violation of these standards can only aggravate their sentences. This is the “royal road” of the government, the government of men.

But at the time when Confucian ideas make their way, at li 礼 rites of Confucius, opposes the fa 法 laws legalists. For legalistic, man is not born naturally good, but it is the study of society and the stress that leads to justice and decency. Therefore no question of government by man, but by the company of government repression and to correct what is wrong with the individual. In other words, it is the law that places itself above all, it is so unique in the Chinese tradition the supreme norm.

The vagaries of Chinese history, especially during the Qin dynasty, the two currents will successively take over on each other. They will compete throughout Chinese history, even if the trend is that Confucianism wins most often.

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Child policy

What methods of application?

Between encouragement …

City, couples are asked to sign a contract in which they agree to have only one child. In exchange, submissive couples remain a priority for the allocation of housing, access to childcare or free medical care, and better schooling for their children they are guaranteed.
In family planning clinics, women are offered a genuine information on contraceptives and the possibility to choose between various methods.
And constraints …

Couples who refuse to comply with the restrictive measures could at best increase their taxes tax.
It can result in a loss of business benefits, the worst loss of employment. And in all cases feel “shame” social befall them.
Measures are imposed by force, such as the upward revision of the age of marriage.
To an easing of restrictive measures

Strong unpopular measures encountered in the countryside led to a rapid easing measures in those regions where the weight of tradition is increased.
Since 1984, campaigns have a privilege compared to cities: a second birth is allowed if the first child is a girl.
Similarly, ethnic minorities have very quickly “preferential treatment.” The Uighur Xinjiang as Tibetans are allowed to have up to 3 or 4 children.
Late 90s, downtown, one child remains the rule. But, faced with an aging population, there is again a relaxation of the rules.
In Shanghai, for example – 13 million at the time – and in some areas of Beijing, a woman is no longer required to seek permission from his employer or his neighborhood committee before starting a first pregnancy.
In case of a second pregnancy, she no longer sees impose an abortion or tubal ligation.
In 1997, urban couples composed of two only children get the right to have two children even if the first is a boy.
In 2002, the National People’s Congress passed a law easing the control exercised by the state over the family.
Under the new law, couples are allowed to have more children if they pay a “social compensation fee” amounting to 600 euros for a new child. Farmers are financially unable to pay such a sum, which can be up to two, three or even four times their monthly income.
Since 2004, the government pays about 120 euros annual pension for couples who have one daughter, as a reward for obeying the model only child, and as an incentive for young people.
So we would go to a political reward more than coercion.
An idea that is beginning to make its way into the countryside. With the influx of peasants into the cities and the acceleration of urbanization, the development of the birth of the peasants has changed. The enormous expense required for the education of children tends to change behavior: couples no longer wish to have only one child to reduce the financial burden they represent.
Results?

During the 25 years of implementation of the policy of birth control measures have certainly helped to reduce the fertility rate of 5.7 children per woman to 1.8, “avoid” about 400 million birth thus delaying the passage of four years the world population of 6 billion people.

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