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: