Courtesy of the Embassy of the People’s Republic of China in Washington D.C.
General Introduction to the Establishment of the Legal System
The design of the legal system of the People’s Republic of China has its own characteristics. It contains not only the inheritance and development through history of China’s legal system, which is a component part of Chinese traditional culture of great significance in the world; it also includes the inheritance and development of the legal system in the revolutionary bases led by the Communist Party of China during the New Democratic Revolutionary Period (1919-1949).
Founding of Legal System in the Revolutionary Bases
Dating back to the Agrarian Revolutionary War (1927-1937), a number of laws were formulated, including:
- the Outline Constitution of the Soviet Republic of China,
- the Labour Law,
- the Agrarian Law,
- the Marriage Law, and
- the Interim Election Law of the Soviet.
During the War of Resistance Against Japan (1937-1945), the Administrative Programme of the Shaanxi-Gansu Ningxia Border Region, the Regulations of the Shaanxi Gansu-Ningxia Border Region for the Election of People’s Assemblies at All Levels, and the Regulations of the Shaanxi-Gansu-Ningxia Border Region on Safeguarding Human Rights and Private Properties, etc. were also formulated.
During the War of Liberation (1946-1949), the Outline Agrarian Law, as well as many other programmes for confiscating bureaucratic capital, protecting national industry and commerce and the people’s democratic rights, were worked out; also, each people’s government in the liberated areas promulgated many laws and regulations in accordance with these programmes.
All these laws and regulations strongly guaranteed and promoted the development of the Chinese people’s revolutionary cause and laid the foundation, prepared conditions and provided experiences for the building of the legal system after the founding of the People’s Republic China.
Establishment of Legal System After the Founding of New China
After the Opium War in 1840 and more than 100 years of arduous struggle, the Chinese people eventually saw in 1949 the victory of the democratic evolution against imperialism, feudalism and bureaucrat capitalism. On the eve of the founding of New China, the national war for liberation was still being fought, China lacked the necessary conditions to formulate the Constitution by the National People’s Congress founded through a general election. A fundamental document was badly needed to answer a series of questions, such as:
- What kind of a country would be founded after the victory of the revolution?
- How could China consolidate the revolutionary achievements by means of the law?
- How would the principles of the founding of the People’s Republic of China – and the norms to be followed by the people – be decided?
At that time, the Communist Party of China invited 635 representatives from all democratic parties, people’s organizations, the People’s Liberation Army, all regions, all ethnic groups and overseas Chinese to organize the Chinese People’s Political Consultative Conference. This body was to represent the will of the people of the whole nation and exercise the authority of the National People’s Congress before its opening.
In September 1949, the first plenary session of the Chinese People’s Political Consultative Conference was held in Beijing. Its Common Programme was formulated late which was considered as the provisional constitution and the Central People’s Government Committee was elected. On October 1, 1949, the founding of the People’s Republic of China was declared.
The Common Programme consists of seven chapters:
- “General Principles”,
- “State Organs”,
- “Military System”,
- “Economic Policies”,
- “Policies on Culture and Education”,
- “Policies on National Minorities” and
- “Foreign Affairs Policies”,
totalling 60 articles. At the conference, the Organization Law of the Chinese People’s Political Consultative Conference and the Organization Law of the Central People’s Government were also adopted.
In the first few years after the founding of New China, China worked out a series of regulations in accordance with the Common Programme, including:
- the Organic Regulations of the People’s Court,
- the Interim Organic Regulations of the Supreme People’s Procuratorial Office,
- the Organic Regulations of the Local People’s Procuratorial Offices at All Levels,
- the Organic Rule of the People’s Court,
- the Agrarian Reform Law,
- the Trade Union Law,
- the Organic General Rule of Peasants’ Associations,
- the Regulations on Labour Protection,
- the Marriage Law,
- the Regulations on Punishment of Corruption,
- the Interim Regulation on Punishment of Those Harming State Currency, and
- the Interim Customs Law.
After three years of rebuilding the national economy, China in 1953 entered a period of gradual socialist transformation and planned economic construction.
In March 1953, China promulgated the Election Law of the National People’s Congress. In September 1954, the First Session of the First National People’s Congress formulated the first socialist Constitution. In the same year, a series of laws and regulations were formulated, such as:
- the Organic Law of the National People’s Congress,
- the Organic Law of the State Council,
- the Organic Law of the People’s Court,
- the Organic Law of the People’s Procuratorates, and
- the Organic Law of the Local People’s Congresses and Local People’s Committees.
Later, other laws and regulations concerning the socialist transformation of agriculture, capitalist industry and commerce were promulgated, including:
- the Interim Regulations on Industrial Enterprises of Joint State-Private Ownership (September 1954),
- the Model Regulations for an Agricultural Producers’ Cooperative (March 1956),
- the Model Regulations For Advanced Agricultural Producers’ Cooperatives (June 1956) and
Corresponding laws and regulations on the socialist transformation of handicrafts were also made public.
The Constitution of 1954 was based on the Common Programme which preceded it. A socialist Constitution, it included 106 articles in four chapters:
- the “Preamble and General Principles”,
- the “Structure of the State”,
- the “Fundamental Rights and Duties of Citizens”, and
- the “National Flag, the National Emblem and the Capital”.
In January 1953 the Central People’s Government Council had set up the Committee for Drafting the Constitution headed by Comrade Mao Zedong. In March 1954, it accepted a draft constitution proposed by the Central Committee of the Chinese Communist Party, followed by a two-month discussion on the draft by eight thousand people representing the democratic parties, people’s organizations and others. The draft constitution was then revised and offered for two months of nationwide discussion participated in by more than 150 million people beginning in June 1954. The Committee for Drafting the Constitution made another revision of the draft in accordance with the opinions and proposals widely solicited. After discussion, the Central People’s Government Council decided to submit the draft to the National People’s Congress for examination and approval. On September 15, 1954, Liu Shaoqi, on behalf of the Committee for Drafting the Constitution, made a report on the Revision of the Constitution at the First Session of the First National People’s Congress. After a discussion by the whole assembly from September 16-19, the draft was finally approved and made public on September 20. After the promulgation of the Constitution, China’s legal system was further perfected and strengthened. By 1966, China had more than 1,500 laws, decrees and administrative regulations formulated by the state.
After 1957, especially during the “cultural revolution” (1966-1976), the people’s courts at all levels were at a standstill, the people’s procuratorates were abolished and the building of the legal system suffered serious damage due to the influence of the “Left” thought.
The Building of the Legal System in the New Period
After the “cultural revolution ‘ the Third Plenary Session of the CPC Eleventh National Congress was held at the end of 1978. China started to implement the policy of the reform and opening to the outside world and earnest lie correct the “Left” errors of the “cultural revolution” and before. China had now entered a new historical development period, and the building of China’s legal system also entered a new period of development. In November 1979, the Standing Committee of the Nation al People’s Congress adopted a resolution reiterating that laws and decrees formulated after the founding of the PRC would continue to be effective, except those in opposition to the present Constitution, laws and regulations. In accordance with this resolution, the state repromulgated some important laws and regulations.
Meanwhile, China started an all-round reexamination of the counter-revolutionary and other criminal cases brought during the “Cultural Revolution”. In light of the principle of “seeking truth from facts and correcting all mistakes whenever found”, a large number of false, unjust cases and wrong cases were redressed and corrected. At this time, some judicial departments and judicial systems, such as the Law Committee and the Legal System Working Committee of the National People’s Congress and the Judicial Department of the State Council were established or restored. The people’s procuratorates and people’s courts at all levels were re-established and the lawyer and notarization systems were restored. The Party Committee’s examination and approval system were abolished. In order to strengthen the legal system, popularize legal knowledge and train legal personnel, colleges of political sciences and law were established.
From 1979-94, 135 laws, more than 100 regulations and supplementary regulations, over 600 administrative regulations and over 2,000 local laws were formulated in China. These included:
- the Criminal Law,
- the Criminal Procedure Law,
- the General Rule for Civil Law,
- the Civil Procedure Law,
- the Administrative Procedure Law,
- the Inheritance Law,
- the Economic Contract Law,
- the Patent Law,
- the Trademark Law and
- the Law on Chinese Foreign Joint Ventures.
Now China has laws to follow which relate to the basic aspects of the state’s political, economic and social life, thereby initially forming a socialist legal system with the Constitution as its base. The Present Constitution Four constitutions have been formulated and promulgated since the founding of the People’s Republic of China – in 1954, 1975, 1978 and 1982.
The present Constitution was formulated through nationwide discussion. After two years of discussion and revision, the draft was finally approved and made public by the Fifth National People’s Congress at its Fifth Session on December 4, 1982. Included in the Constitution are 138 articles. Apart from the “Preamble”, it is divided into the following chapters:
- “General Principles”,
- the “Fundamental Rights and Duties of Citizens”,
- the “Structure of the State”,
- and the “National Flag, National Emblem and the Capital”.
Based on the Constitution of 1954, the present Constitution pays full attention to summing up the experiences of socialist development, as well as to absorbing international experiences. It considers both the present reality and prospects for development. Therefore, the Constitution, with its Chinese characteristics, meets the demands of the political, economic and cultural development in the new historical period starting from the adoption of the policy of reform and opening to the outside world in 1979.
The Constitution clearly specifies that the basic task of the nation in the years to come is to concentrate its efforts on socialist modernization. The four cardinal principles – adherence to the socialist road, the people’s democratic dictator ship, the leadership by the Communist Party of China, and Marxism-Leninism and Mao Zedong Thought – are recorded as the nation’s fundamental law. And the reform and opening to the outside world – the way to turn the country into a powerful one – is also included in the Constitution.
The Constitution also systematically defines China’s political system and political structure, the organizational set-up of all state organs and their mutual relationships. It defines the free and democratic rights of citizens, including the right to live, and personal rights as well as political, cultural and social rights.
In March 1993, the First Session of the Eighth National People’s Congress adopted the Amendments to the Constitution, which include the following:
- “Our country is in the primary stage of socialism” (Article 3);
- to uphold reform and opening to the outside world” (Article 3);
- “Multi-party cooperation and the political consultation system… shall continue and develop for the extended future” (Article 4);
- “The state practises socialist market economy” (Article 7);
- “the rural contracted responsibility system based mainly on the household linking remuneration to output… are part of the socialist economy collectively owned by the working people” (Article 6);
and so on.
These policies which have been proved successful and welcomed by the people are legally determined as the state’s long-term policies will be of great importance to China’s development in the days to come.
Article 62 of the Constitution of the People’s Republic of China specifies that the National People’s Congress exercises the following functions and powers:
- “To amend the Constitution,” and
- “to enact and amend basic laws governing criminal offences, civil affairs, the state organs and other matters.”
Article 67 stipulates that the Standing Committee of the National People’s Congress exercises the following functions and powers:
“To enact and amend laws, with the exception of those which should be enacted by the National People’s Congress.”
The Constitution affirms that the state’s legislative right belongs to the highest organ of state power – the National People’s Congress and the Standing Committee of the National People’s Congress.
The guideline of China’s legislation is to uphold the basic line of the Chinese Communist Party in the primary stage of socialism – building socialism with Chinese characteristics. In short, this basic line refers to “one center and two basic points”; i.e., taking economic construction as the center, and adhering to the “four cardinal principles,” and to the reform and opening to the outside world.
Meanwhile, the following basic principles are to be pursued:
- The principle of seeking truth from facts and proceeding from the actual circumstances of the state. It means that we should proceed from the actual political, economic and cultural conditions in China, and from the demands and possibilities of construction of modernization and the reform and opening so as to conform to the state’s conditions and reflect the people’s will.
- The principle of combining the summary of practical experiences with scientific prediction. We should sum up experiences on all aspects of socialist revolution and socialist construction while predicting the coming development and changes so as to make the formulated laws adapt to the social development and changes.
- The principle of learning useful experiences from Chinese history and from other countries. This tenet maintains that we should absorb and learn all rational elements and factors concerning the building of the legal system from Chinese history, as well as all good experiences and advanced legislation from other countries.
- The principle of combining leadership with the masses. When a law is being formulated, we should extensively solicit opinions of the public before the first draft is written. The first draft should be discussed by the people and their opinions solicited. After repeated revisions and discussions, a law draft will be worked out and submitted to legislative authorities for examination and approval.
- The principle of integrating principles with flexibilities. Here “principles” are the orientation that we must uphold while engaging in legislative activities; “flexibilities” refer to the flexible measures that we may adopt within the limits of the principles.
The present Chinese legal forms include the Constitution, laws, and administrative, local, autonomous and individual regulations.
Laws are formulated by the National People’s Congress, the highest organ of state power in the People’s Republic of China, or by its standing committee. The laws formulated and revised by the National People’s Congress are the basic statutes concerning criminal law, civil law, and procedural law. The NPC Standing Committee enacts and amends statutes with the exception of those which should be enacted by the National People’s Congress, such as the Regulations on Administrative Penalties for Public Security, the Trademark Law and the Law on the Environment Protection. In addition, the resolutions and decisions promulgated by the National People’s Congress and its Standing Committee are also regarded as legal forms.
The Constitution specifies that the State Council, the highest organ of state administration, has the power to enact administrative rules and regulations, which are second only to the Constitution and laws in terms of status. The standardized decrees, instructions and rules issued by the ministries and commissions under the State Council are also the state’s legal forms.
In accordance with the Constitution and the relevant organic laws, the people’s congresses and their standing committees of the provinces, autonomous regions and centrally administrated municipalities, the cities where the provincial people’s governments are located and the fairly large cities approved by the State Council have the right to formulate local laws, The local laws and regulations are standardized legal documents worked out by the local government organs and the state’s important legal form.
In accordance, with the Constitution and the Law on Regional National Autonomy, organs of self-government of national autonomous regions exercise autonomy. The people’s congresses of national autonomous areas have the power to enact regulations on the exercise of autonomy and separate regulations in light of the political, economic and cultural characteristics of local ethnic groups; they are also state laws.
Other laws include the standard legal documents formulated by the state military leading organ – the Central Military Commission, by the special administration regions, or by the special economic zones, as well as the international legal documents signed by the People’s Republic of China with foreign countries.
As standard legal documents fall into different categories (or different legal forms), the procedures for formulating laws vary. In general, the procedures for formulating a law include:
- bringing forth a proposal,
- making a draft,
- submitting the draft for examination and approval,
- examining and approving the draft,
- adopting a law and
- promulgating the law.
In China, the National People’s Congress and its Standing Committee work out laws in accordance with the following procedures:
- Putting forward a legal proposal
In light of the Organic Law of the National People’s Congress, an NPC delegation or over 30 deputies, the NPC presidium, the NPC Standing Committee, each special committee of the NPC, the State Council, the Central Military Commission, the Supreme People’s Court and the Supreme People’s Procuratorate – all have the right to bring forth legal proposals.
- Examining and approving legal drafts
In general, after a legal proposal is brought forth, a legal draft shall be worked out. Before the legal draft is submitted to a special committee of the NPC for examination and approval, it will be discussed by specialists, scholars, legal working personnel and the broad masses of the people, and repeatedly revised according to solicited opinions. The draft will then go to a plenary session of the legislative organ for examination and approval.
- Adopting legal drafts
If a legal draft approved by the legislative organ is adopted by more than half of the deputies to the National People’s Congress, the draft officially becomes a law. The Amendments to the Constitution must be approved by more than two-thirds of the deputies to the National People’s Congress.
- Promulgating the laws
The laws shall be promulgated by the president of the People’s Republic of China after they are examined and approved, and after their promulgation and implementation are decided by the National People’s Congress or the Standing Committee of the National People’s Congress. In general, the laws and regulations are published in China Daily, Legal Daily, The Communique of the Standing Committee of the National People’s Congress, The Communique of the Supreme People’s Court and The CommuniquÃ© of the State Council.
The complete Chinese judicial system is composed of public and state security organs, people’s procuratorates, people’s courts and judicial administrative departments. Public security organs are in charge of investigation, detention and preparatory examination in criminal cases. State security organs are charged with similar activities in cases involving espionage and spies. The people’s procuratorates are responsible for approving arrests and initiating and providing assistance to public prosecutions. The people’s courts judge cases, and Judicial administrative departments are responsible for reforming criminals. Their organizational set-up, functions and powers are as follows:
Public security organs
These are state organs that maintain public order, safeguard people security and investigate criminal cases. The Ministry of Public Security of the central government is under the State Council; local public security organs are under local people’s governments at corresponding levels.
All public security organs work under the supervision and leadership of the State Council and local people governments at different levels; at the same time, they are under the professional leadership of the Ministry of Public Security of the Central government and public security organs at higher levels.
The main tasks of the public security organs are:
- struggling against counter-revolutionary and other criminal elements and at tacking and preventing their destructive activities;
- taking charge of public security and maintaining public order; and
- safeguarding state organs, enterprises, and other institutions and establishments.
According to law, public security organs exercise their functions in criminal lawsuits, when investigating criminal cases, and during detention, pre-trial and in making arrests.
State security organs
These are integral components of the people’s governments at different levels. In charge of investigating cases of espionage and secret agents, they function in the same manner as public security organs in criminal cases.
These state organs are in charge of handling cases, and consist of four levels: basic, intermediate, and higher people’s courts and the Supreme People’s Court. In addition, China has military courts and other special people’s courts. The Supreme People’s Court supervises the judicial work of the local people’s courts at all levels and of special people’s tribunals. A people’s court at a higher level supervises the judicial work of a lower people’s court.
The basic people’s courts include the county (or autonomous county) and city people’s courts and the people’s courts of the districts directly under cities.
Except for cases that must be handled by the people’s court at a higher level according to laws, the basic people’s courts are, in general, in charge of handling all civil and criminal cases as first-instance cases.
The intermediate people’s courts are usually set up in prefectures (or autonomous prefectures) with administrative offices under the provinces or autonomous regions, and in centrally-administrated municipalities and large cities directly under the provinces or autonomous regions. The cases handled by the intermediate people’s courts include:
- first-instance cases within their jurisdiction, according to laws and decrees;
- first-instance cases transferred from the basic people’s courts;
- appeals made by people challenging the judgements and decisions of the basic people’s courts; and
- cases protested by the people’s procuratorates at the corresponding level.
The higher people’s courts are set up at the provincial, autonomous regional and centrally-administrated municipal level. Cases handled by the higher people’s courts include:
- first instance cases within their jurisdiction; first-instance cases transferred from the lower people’s courts;
- appeals made by people dissatisfied with the judgements and decisions of the intermediate people’s courts; and
- cases protested by the people’s procuratorates at the corresponding level.
The Supreme People’s Court is the state’s highest judgment organ. Cases handled by the Supreme People’s Court include:
- first-instance cases within its jurisdiction and those which it regards as such;
- cases appealed and protested by people dissatisfied with the judgements and decisions of higher people’s courts and special people’s courts; and
- cases protested by the Supreme People’s Procuratorate according to supervisory proceedings.
Judgements and decisions of first-instance or second-instance cases made by the Supreme People’s Court are all judgements and decisions of the final instance and become legally effective the day they are announced. In addition, the Supreme People’s Court is in charge of explaining laws and decrees when judgements and decisions are made.
These are state law supervisory organs, which correspond with those of the people’s courts, in addition to military and special people’s procuratorates. Local people’s procuratorates and special people’s procuratorates are both under the leader ship of the Supreme People’s Procuratorate. The people’s procuratorates at lower levels are under the leadership of higher level procuratorates.
The responsibility of the people’s procuratorates include exercising power in cases of treason, national separatism, and the serious sabotage of the implementation of state policies, laws and legal and governmental decrees. They are also responsible for investigating criminal cases that they directly handled (for example, crimes of corruption, infringements of citizen’s democratic rights and dereliction of duty), examining cases handled by public security organs before deciding whether to approve arrest, initiating prosecution, and supervising the legality of the investigative activities of public security organs. They also initiate or support public prosecution of criminal cases, and supervise the legality of judicial activities of the people’s courts. They supervise the legality of judgements and decisions of criminal cases, and their execution, and the legality of activities of prisons, detention houses and reform-through-labour establishments.
In order to guarantee the correct implementation of the state’s laws, judicial organs must abide by the following basic principles in their activities:
- Equal treatment towards all citizens in the application of laws
All citizens, regardless of nationality, race, sex, profession, social background, religious belief, level of education, property status or length of residence, enjoy equal treatment in the application of laws, with no privileges allowed. If a state employee, no matter how high his/her post, commits a crime, he/she will be subject to a legal investigation.
- Taking facts as the base and law as the criterion
Taking facts as the base means that in convicting a person of a crime and deciding on a penalty, great importance must be given to facts and no judgment should be made on the basis of subjective assumption. Emphasis should be on evidence and investigative research, and credence should not be readily given to oral statements. Taking law as the criterion means that during lawsuits, all should act according to law.
- Independent exercise of their authority
Public security organs, procuratorates and courts act according to the principle of division of labour with individual responsibility, cooperation and restrictions on each other during criminal cases. In connection with investigative activities of public security organs, arrest orders must be ratified by the procuratorates.
When a public security organ deems it necessary to initiate prosecution in the court or to investigate further the offenders’ criminal responsibility after their initial investigation and pretrial examination, it refers the case to the procuratorate for examination. The procuratorate then decides whether or not to initiate prosecution. After examination, the court has the right to decide whether or not to accept and hear the case the procuratorate has decided to prosecute, or to return it for supplementary investigation.
In cases not requiring sentencing, the court may ask the procuratorate to withdraw its prosecution. During trials, the procuratorate sends its personnel to support public prosecutions and supervise the legality of the court’s trials. If the procuratorate does not agree with the judgement and decision of the court, it has the right to protest.
Like the people’s procuratorates that independently exercise their authority, people’s courts independently exercise their judicial authority. They abide by law and are not influenced by administrative organs, social organizations or individuals.
Except in cases concerning state secrets, certain private affairs and criminal cases committed by minors all cases must be tried in public. Defendants have the right to defense. People’s courts adopt the system by which the second instance follows the first instance. If the parties do not agree with the first-instance judgement by the local people’s court, they may appeal to the next higher court. The second-instance judgement and decision by the next higher people’s court are the final decision.
- Seeking truth from facts and correcting mistakes whenever they are discovered
Judicial organs must ad here to this principle as they may make mistakes during the course of lawsuits. This principle reflects the struggle against acts in violation of existing laws and criminal offense, as well as the spirit of being responsible to the people. It also guarantees that no one will be wronged. Mistakes must be corrected immediately whenever they are discovered.
Judicial Administrative Organs
From the Central Government to localities, judicial administrative organs exist at all levels. The Ministry of Justice is under the leadership of the Central Government. The provinces, autonomous regions and centrally administrated municipalities have bureaus of justice. The prefectures, cities and counties (autonomous counties) have bureaus (or departments) of justice. The judicial administrative organs at all levels are component parts of the people’s governments at the same levels. They are responsible for controlling promotion of the legal system, legal education, training of judicial personnel, people’s mediation, lawyers, notarization, the work of imposing reform-through-labour on criminals sentenced to imprisonment and reeducation of juvenile delinquents.
The Lawyer System
In accordance with the Interim Regulations on Lawyers, attorneys are the working personnel of state laws. The job of lawyers is to offer legal aid to state organs, institutions, enterprises, social organizations and citizens. The goal is ensure the correct implementation of state laws and to protect the interests of the state and collectives, as well as the lawful rights and interests of citizens.
In 1993, China had 68,000 lawyers, including more than 30,000 who worked full-time. More than 5,100 law offices served as law consultants for more than 186,000 organs, enterprises, institutions and citizens. They were involved in more than 483,000 civil and economic cases and handled over 18,000 foreign law affairs.
When state notarial offices receive applications submitted by citizens, enterprises, institutions, state organs and social organizations, they attest to lawful acts, lawful documents, truth of facts and legality of activities in accordance with law. All centrally administrated municipalities, counties and cities have notarial offices. The districts directly under cities can also set up notarial offices with approval of the judicial administrative organs of the provinces, autonomous regions and centrally-administrated municipalities. In the past few years free trade zones and economic development zones have set up notarial offices or agencies of notary offices.
In 1993, China had 3,066 notarial offices, including ‘.7,000 notaries. They handled 7.96 million matters, of which 3.42 million had to do with economic matters.
People’s Mediation Committees
These are mass organizations which help people settle their own disputes. People’s mediation committees may be set up under rural village committees and urban neighbourhood committees. They operate under the guidance of local people’s governments and people’s courts at grassroots levels, and are different from the state’s administrative or judicial organs. In settling a dispute, they are not entitled to use any forceful administrative or legal measures. With the consent by both sides involved in a dispute, they must employ reason and persuasion. If one party refuses to enter mediation, or mediation efforts fail (or one of the parties decides to bring up the case again after having first accepted mediation results), he/she can file a lawsuit directly with a people’s court.
Responsibilities of people’s mediation committees are to settle ordinary civil disputes or minor criminal cases and, through mediatory work, to familiarize the public with government laws, decrees, regulations and policies. They also educate people to abide by the law and respect social morality.
Currently, China has 51,122 full-time judicial assist ants in charge of guiding the daily work of over one million people’s mediation committees, which employ more than 10.179 million people. In 1992, they mediated a total of 6.173 million civil disputes. These greatly reduced a large load of lawsuits, providing assistance to judicial organs and the public. After the results of mediation on disputes involving property, debts, support of parents and children, compensation and other matters are filed, written agreements may be issued at the re quest of the interested parties. A necessary record should be made for further investigation and verification.
Instead of criminal punishment, education-through-labour is an administrative punishment. The people’s governments of the provinces, autonomous regions, centrally-administrated municipalties and large cities in China all have education-through labour management committees, which operate under the supervision of the people’s procuratorates. Those receiving education-through-labour are 16-year-old juveniles who harm the security of large and medium-sized cities and refuse to correct their mistakes after repeated education. Some commit crimes not serious enough for criminal punishment, but still conform to the regulations of education-through-labour. The terms vary from one three years. The length of labour is generally limited to six hours daily, and wages are paid for their work. After they are educated through labour, they do not suffer discrimination in obtaining employment and enrolling in school.
Education-through-labour follows the policy of “education, persuasion and rescue,” putting emphasis on rescuing juvenile delinquents. Education-through-labour organs have educational departments with qualified teachers, who systematically educate juvenile delinquents in political ideology and basic knowledge of culture and production techniques. At present, China has 73 education-through-labour sites, of which 170 are education-through-labour schools.
This is a positive punitive measure used by people’s courts in China to reform convicted criminals who have been sentenced to fixed- term imprisonment or life imprisonment. This includes those sentenced to death with a two-year suspension followed by life imprisonment. The reformation organs for this programme include: houses of detention mainly for prisoners awaiting for trial and criminals who have been sentenced to less than two-year imprisonment and not suitable for reformation organs; prisons mainly housing convicted criminals not suitable to work out of prisons; reform-through-labour teams mainly supervising convicted criminals who are suited to work out of prisons, and educational houses for juvenile delinquents mainly educating and controlling those delinquents under 18 years of age.
Criminals sentenced to fixed-term imprisonment receive education in political ideology and basic knowledge of culture and production techniques, according to the principles of placing reform first and production second. This policy also combines punishment with leniency and labour production with political education in order to make criminals eventually become new labourers earning their own living through their work. During the reform through-labour period, reformation organs arrange for convicts to participate in sports and recreational activities while maintaining strict control and banning corporal punishment and other malpractices. The length of labour generally does not exceed eight hours daily and criminals have time off for festivals and holidays. Juvenile delinquents are organized to do appropriate light labour, taking into consideration their age and health needs.
Reformation organs adopt the system of rewards and punishments strictly and fairly, giving convicts a chance to perform meritorious service to atone for their crimes. Convicts, according to their performances, are given oral commendations or offered material rewards. Those convicts showing repentance or performing meritorious activities may have their terms of imprisonment reduced or be granted parole upon approval of the people’s courts. Those who refuse to repent or accept reform through labour are punished. Those who have committed other criminal offences or commit new crimes during their term of reform-through-labour are referred to people’s procuratorates.
At present, China has 680 prisons and reform-through-labour establishments. In 1993, prisoners in China made up 0.95 per thousand of the country’s total population.
Market Economy and the Building of the Legal System
The Amendments to the Constitution of the People’s Republic of China, adopted at the First Session of the Eighth National People’s Congress on March 29,1993 specify: “The state practices a socialist market economy…. The state shall enhance economic legislation and improve macro-control of the economy… The state shall, in accordance with the law, prohibit disturbance of the socioeconomic order by any organization or individual.” In this way, the establishment of a lawful standardized system for guaranteeing the smooth construction of a socialist market economic structure and setting up a lawful order for free and fair market competition have been put on the agenda.
In the ten-plus years before this session (from July 1 1979, when the Law on Chinese-Foreign Joint Ventures was promulgated to February 20, 1993, when the Law on the Quality of Products was issued), the National People’s Congress and its Standing Committee formulated a number of laws. These included the Economic Contract Law, the Law on Economic Contracts Involving Foreign Interest, the Law on Foreign-Capital Enterprises, the Law on Enterprise Bankruptcy, the Law on Industrial Enterprises with Ownership by All the People, the Law on Chinese-Foreign Cooperative Enterprises, the Statistics Law, the Accounting Law, the Budget Law, and other laws to standardize economic life. Also at this session, Chairman Qiao Shi of the Standing Committee of the National People’s Congress (successor to Wan Li) issued this challenge in his inaugural speech:
We should make every effort to initially form a lawful socialist market economic system during the term of the Eighth National People’s Congress (1993-1997).
At the end of 1993, the Legislation Programme of the Eighth National People’s Congress listed 152 legal drafts to be examined and approved by this term, nearly 50 percent of which were economic drafts. Within a year from the First Session of the Eighth National People’s Congress (in March 1993) to the Second Session of the Eighth National People’s Congress (in March 1994), the Standing Committee of the National People’s Congress formulated and revised 21 laws, including 13 on a socialist market economy. In addition, the Law on Opposing Unjust Competition, the Law on Companies, etc., were also worked out in 1993.
In accordance with the information provided by the Standing Committee of the National People’s Congress, 64 laws will be promulgated in 1994 and 1995, more than 50 percent of which involve the economy. These include the Law on Foreign Trade (promulgated on May 12, 1994), the Bank Law, the Law on Bills, the Advertisement Law, the Arbitration Law, the Law on Warranty and Mortgage, the Audit Law, the Insurance Law, etc.
China has now started to establish a market economic system. In formulating economic laws, China should sum up its own experiences, and learn, absorb and make use of experiences and methods of other countries in order to speed up the legislation process and guarantee the smooth building of a socialist market economy.