By: Lisi Wei, Lawyer, Inner Mongolia
Autonomous Region, People’s Republic of China
Introduction
There is no doubt that China has a very long history and
Chinese law is one of the oldest legal traditions in the world. The contemporary social control is rooted in the Confucian past which
based on the philosophy that social control should be established and exist
through moral education, as well as a legal emphasis on codified law and
criminal sanction.
In the Revolution of 1911, the Republic of China adopted a largely
Western-style legal code in the civil law tradition. The establishment of the
People's Republic of China in 1949 brought with it a more Soviet-influenced
system of socialist law. Although a basic legal system including provisions for
laws and a three-level trial and appeal court system was established, few cases
were brought to court during this period. Administrative agencies handled most
complaints.
The first constitution wasn’t promulgated until 1954. Much
effort was expended to make the legal system work, but the Cultural Revolution
during the years 1966-76 made judicial authority mostly inactive and the legal
system stagnated.
After the Cultural Revolution, a new
constitution intended to provide a structural basis for the return to socialist
legality was adopted in 1978. The Constitution was amended to adopt whole sectors
of foreign legal systems, such as the U.S. banking and securities laws and
German industrial property laws. The legal system since then has developed for
the purpose of establishing a legal order for domestic purposes.
In the 21st Century, with the signing and ratifying of various international
treaties and obtaining full membership in the World Trade Organization in 2001,
the efforts of China to join the international community resulted in new and constant
judicial reform. Successful economic reforms in the last 30 years resulting in
a high economic growth rate of 9.67% per annum has given the Chinese leadership
more patience to pay attention to the basic needs and social welfare of the
citizens. The exceptional growth of the economy has led the public to seek
further protection of their legal rights. Thus more disputes have resulted in
an increased number of lawsuits to be resolved in the courts. This situation was confirmed in a speech by Wen Jiabao [the sixth Premier of the State
Council of the People's Republic of China who held that position for ten
years in the early 2000s] who confirmed that judicial
reform is a natural outcome of political reform following 30 years of
successful economic reform in China. A
successful outcome of judicial reform
will largely depend on an effective strategy for implementing judicial reform
at a suitable pace and adjusted to the reactions in Chinese society.
Process and Achievements of Judicial
Reform in China
The realization on the part of Chinese leaders that it is necessary
to continue to learn from foreign peers in this transforming stage resulted in China making five
year plans for judicial reform. The first 5-year plan from 1999 to 2003 was
designed to improve trial
procedures and
rebuild judicial
credibility. The Supreme Court established litigation procedures for the district courts around
the whole country, which not only built up a uniform standard but also
introduced the idea of cross
examination of witnesses in hearings, majority vote for sentencing, and establishing procedures for enforcement of judgments through a court
enforcement administrative office. In addition to changes inside the judicial
system, there was created a legal education program in universities to provide
for, eventually, a source for legally trained judges. Magnificent court
houses were also constructed to help the new legal system
work and add prestige
to the court system.
The second 5-year plan from 2004-2008 was designed to insure judicial fairness and
neutrality as administered by the courts. More efforts were directed to establish judicial review,
to establish appropriate relationships with other branches of government at the
local level, and to balance
the powers of prosecutors and defendants in criminal procedures. Judicial review of administrative decisions was established and provisions
were made for appeals to a higher court jurisdiction if local government officials tried to
interfere with court proceedings or court judgments. According to incomplete statistics, in 2006, 17,018
administrative decisions were declared invalid or illegal. Judicial review resulted in the changes of 34% of a
total 92,613 decisions made by local governments. Courts sustained only 18% of total
administrative decisions. Similar strategies were also developed for special civil jurisdiction to avoid local protection in
commercial cases.
Other legal reforms have focused on individual and human
rights. Courts now recognize the principle of presumption of innocence of the accused in criminal
cases and that principle is applied in court hearings. New rules have been promulgated for making confessions of the accused without corroborating
evidence excluded from evidence in criminal cases in order to eliminate the
possibility of cruel treatment of the defendant during the investigation. As a result, approximately 4000-6000 persons
were declared
International
Judicial Monitor