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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