Editing Chinese law (section)

== Rule of law ==
One of the most commonly used phrases in contemporary China, by legal scholars and politicians alike, is fǎzhì (法治). Fǎzhì can be translated into English as "[[rule of law]]", but questions have often been asked whether Chinese leaders meant "rule by law", which means the instrumental use of laws by rulers to facilitate social control and to impose punishment as understood in the Legalist tradition.<ref>Linda Chelan Li, The “Rule of Law” Policy in Guangdong: Continuity or Departure? Meaning, Significance and Processes. (2000), 199-220.
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Late Qing dynasty legal reforms unsuccessfully sought to implement Western legal principles including the rule of law and judicial independence.<ref name=":Fang" />{{Rp|page=122-123}} Judicial independence further decreased under Chiang Kai-shek per the Kuomintang's policy of particization (''danghua'') under which administrative judges were required to have "deep comprehension" of the KMT's principles.<ref name=":Fang" />{{Rp|page=123}}

After China's [[Reform and Opening Up]], the CCP emphasized the rule of law as a basic strategy and method for state management.<ref name=":Fang" />{{Rp|page=110}} The concepts of yīfǎ zhìguó (依法治国: "governing the nation according to the rule of law") and jiànshè shèhuì zhǔyì fǎzhì guójiā (建设社会主义法制国家: "building a socialist rule of law state") have been part of the CCP's official policy since the mid-1990s. [[Jiang Zemin]] called for establishing a socialist rule of law at the [[15th National Congress of the Chinese Communist Party|Fifteenth Party Congress]] in 1997.<ref name=":Fang">{{Cite book |last=Fang |first=Qiang |title=China under Xi Jinping: A New Assessment |publisher=[[Leiden University Press]] |year=2024 |isbn=9789087284411 |editor-last=Fang |editor-first=Qiang |chapter=Understanding the Rule of Law in Xi's China |jstor=jj.15136086 |editor-last2=Li |editor-first2=Xiaobing}}</ref>{{Rp|page=110}} In 1999, the NPC adopted an amendment to the Chinese Constitution, incorporating "governing the nation according to the rule of law" and "building a socialist rule of law state" into Article 5.{{cn|date=July 2024}} In 2014, the CCP formally adopted a policy of constructing a "socialist rule of law with Chinese characteristics."<ref>{{Citation |last=Tiffert |first=Glenn |title=Socialist Rule of Law with Chinese Characteristics: A New Genealogy |date=2018-07-05 |work=Socialist Law in Socialist East Asia |pages=72–96 |editor-last=Fu |editor-first=Hualing |edition=1 |publisher=[[Cambridge University Press]] |doi=10.1017/9781108347822.004 |isbn=978-1-108-34782-2 |editor2-last=Gillespie |editor2-first=John |editor3-last=Nicholson |editor3-first=Pip |editor4-last=Partlett |editor4-first=William Edmund}}</ref>

The existence of the rule of law in China has been widely debated.<ref>Randall Peerenboom & He Xin, ''Dispute Resolution in China: Patterns, Causes, and Prognosis'', 4 [[East Asia Law Review]] (2009), found at [http://www.pennealr.com/pages/issues/volume_4/issue_1.php Penne. ALR website] {{webarchive|url=https://web.archive.org/web/20110325094835/http://www.pennealr.com/pages/issues/volume_4/issue_1.php |date=2011-03-25 }}</ref> When discussing Chinese law, it is worth noting that various expressions have been used, including "strengthening the law," "tightening up the legal system," "abiding by the law in administration," "rule by law," and the "rule of law". Different shades of meanings have been attached to each of these terms, but Chinese officials and scholars have employed the expressions rather loosely and sometimes interchangeably.<ref name="The 2000">{{Cite journal |last=Li |first=Linda Chelan |date=March 2000 |title=The "Rule of Law" Policy in Guangdong: Continuity or Departure? Meaning, Significance and Processes |journal=[[The China Quarterly]] |language=en |volume=161 |issue=161 |pages=199–220 |doi=10.1017/S0305741000003994 |issn=0305-7410 |jstor=655986}}</ref> However, the central government had originally preferred the expression, "strengthening the law/legal system" to "the rule of law". It was thought that the latter might give a controversial connotation of the instrumentality, while the former conveyed a straightforward meaning of strengthening the law and institutions. "Strengthening the law" meant reform of legislation and [[Law enforcement in the People's Republic of China|enforcement of laws]].<ref name="The 2000" />

Despite the newly elevated role of courts in Chinese society, there still remains some consensus about defects in China's legal system in regards to progressing towards the rule of law. Scholars point to the following defects as slowing movement toward rule of law. These include:
* First, the [[National People’s Congress|National People's Congress]] is ineffective at executing its constitutional duty to legislate and supervise the government.<ref>Albert Hung-yee Chen, An Introduction to the Legal Systems of the People’s Republic of China, Butterworths Asia (1992), 80-82.</ref>
* Second, the [[Constitution of the People's Republic of China|Chinese Constitution]] is not treated as the supreme law, nor is it enforced.<ref>Chen, 107; Randal Peerenboom, China’s Long March Toward Rule of Law, Cambridge University Press (2002), 61</ref>
* Third, the judiciary is not independent from political pressure. On the other hand, direct intervention in particular cases by the Chinese Communist Party has lessened in recent years, as has the direct influence of the party on the legislative process.<ref>Chen, 106, 117-121</ref>
* Fourth, there is a high level of corruption among public officials. Personal favors, bribery, and taking of public monies are all too common at all levels of government.<ref>Peerenboom, 295-297</ref>
* Finally, the legal profession is inadequate for lack of qualified attorneys and judges.<ref>Chen, 121-123</ref> This failure is being remedied by legislation aimed at instituting higher educational standards for judges, opening more courts and law schools throughout China.<ref>Peerenboom, 290-293</ref>

Lawyers in China have to swear an oath of loyalty to the CCP. Lawyers who refuse to follow the party line may have their license to practice law revoked.<ref>{{cite web |agency=Associated Press |title=China strips license of lawyer for Hong Kong activist |url=http://www.asahi.com/ajw/articles/14116054 |website=www.asahi.com |publisher=Asahi |access-date=18 January 2021}}</ref>

Xi Jinping opposes Western views of the rule of law, such as the requirement of judicial independence.<ref name=":Fang" />{{Rp|page=113}} Xi states that the two fundamental aspects of the socialist rule of law are: (1) that the political and legal organs (including courts, the police, and the procuratorate) must believe in the law and uphold the law, and (2) all political and legal officials must follow the CCP.<ref name=":Fang" />{{Rp|page=115}}Xi's view of the rule of law tends to equate the rule of law with the development of legislation.<ref name=":Fang" />{{Rp|pages=112-113}} In his writings on socialist rule of law, Xi has emphasized traditional Chinese concepts including people as the root of the state (''mingben''), "the ideal of no lawsuit" (''tianxia wusong''), "respecting rite and stressing law" (''longli zhongfa''), "virtue first, penalty second" (''dezhu xingfu''), and "promoting virtue and being prudent in punishment" (''mingde shenfa'').<ref name=":Fang" />{{Rp|pages=110-111}} 

Xi describes the leadership of the CCP as essential to upholding the socialist rule of law.<ref name=":Fang" />{{Rp|page=114}} In his view, "The Party leads the People to enact and enforce the laws" and it "must lead the legislation, guarantee the law enforcement, and become the leader in conforming the law."<ref name=":02">{{Cite book |last=Li |first=Xiaobing |title=The Cold War in East Asia |date=2018 |publisher=[[Routledge]] |isbn=978-1-138-65179-1 |location=Abingdon, Oxon}}</ref>{{Rp|page=200}} 

According to academic [[Keyu Jin]], the revised Administrative Procedures Law codified in 2021 marks a milestone in formalizing the rule of law in China.<ref name=":0242" />{{Rp|page=303}}