Editing Chinese law (section)

=== People's Republic of China ===
{{Main|Law of the People's Republic of China}}
{{Politics of the People's Republic of China|expanded=Law}}

[[File:China court room.jpg|thumb|Court room in the People's Republic of China]]

Unlike traditional Chinese law, modern Chinese law is based mainly on statutory law and court judgments do not have binding precedential value.<ref name=":9222" />{{Rp|page=119}}

After the [[Chinese Communist Revolution|Communist victory]] in 1949, the newly established People's Republic of China (PRC) quickly abolished the ROC's legal codes and attempted to create a system of [[socialist law]] copied from the [[Soviet law|Soviet Union]]. With the [[Sino-Soviet split]] (1960–1989) and the [[Cultural Revolution]] (1966–1976), all legal work came under suspicion of being counter-revolutionary, and the legal system completely collapsed. A new concept of justice called [[judicial populism]] (''sifa dazhonghua''<ref name=":0">{{Cite book|last1=Garrick|first1=John|title=China's Socialist Rule of Law Reforms Under Xi Jinping|last2=Bennett|first2=Yan Chang|publisher=Routledge|year=2016|isbn=978-1-138-95573-8|location=Oxon|pages=23}}</ref>) was established. Instead of the requirement for judges to comply with strict judicial procedures, it promoted substantive justice and problem-solving mechanisms.<ref name=":1">{{Cite book|last1=Alford|first1=William P.|title=Prospects for the Professions in China|last2=Kirby|first2=William|last3=Winston|first3=Kenneth|publisher=Routledge|year=2010|isbn=978-1-136-90992-4|location=Oxon}}</ref> This legal tradition is based on a cultural view of the non-finality in justice as well as the revolutionary practice of the [[Chinese Communist Party]] (CCP) that relies on people's justice.<ref name=":1" />

Over the past century [[Constitution of China (disambiguation)|China has had several constitutions]].<ref>Albert Hung-Yee Chen (1992), pp. 42-45.</ref> The first attempts towards implementing a constitution in China occurred during the final decade (1902–1912) of the [[Qing dynasty]]. Various controlling groups subsequently promulgated different constitutions between that time and the establishment of the PRC in 1949. The PRC had a provisional constitution from its inception until the enactment of its first constitution in 1954. This initial constitution was based on the constitution of the Soviet Union. It was shortly ignored, however, and became without legal force. Although it provided for the election of the [[National People’s Congress|National People's Congress]] (NPC) every four years as the highest state power, these guidelines were not adhered to. The second constitution of the PRC, modeled on the ideology of the [[Cultural Revolution]], came into force in 1975. This constitution subjected the NPC to the CCP and removed previous constitutional protections such as equality under the law and private-property succession rights. It was also immediately disregarded through breaches of its provisions and non-adherence to guidelines regarding the NPC. The third constitution of the PRC was adopted in 1978. Although this version moved away from the ideologies of the Cultural Revolution, it did retain some remnants of it. It also retained CCP control over the state structure. However, reformists subsequently gained power, which led to the breakdown of this constitution as focus shifted to economic construction and modernization.

With the start of the [[Deng Xiaoping]] reforms ({{c. |1979|lk=none}}), the idea of reconstructing a legal system to restrain abuses of official authority and developing a "rule of law" to replace rule by dictatorship began to gain traction. New laws were passed and foreign investors sought improvements in property rights which had not been a feature of Maoist government but there was internal conflict in China over the extent of incorporating foreign legal norms into the Chinese legal system. Chinese reformers sought to create a special arbitration body, independent of the local legal system, called the [[China International Economic Trade and Arbitration Commission]] (CIETAC). In 1982 [[Peng Zhen]] said "It is necessary to draw on beneficial experiences – ancient or modern, Chinese or foreign – in studying the science of law...We study them in order to make the past serve the present and foreign things serve China". Others who were more supportive of reforms like [[Qiao Shi]] still urged caution against "just copying blindly" and Deng Xiaoping himself said "we must pay attention to studying and absorbing foreign experience...However, we will never succeed if we mechanically copy the experiences and models of other countries".<ref>{{cite book |last1=Wilson |first1=Scott |title=Remade in China:Foreign Investors and Institutional Change in China |date=2009 |publisher=Oxford University Press |page=97}}</ref>

The {{as of|2016|alt=current}} Constitution of the PRC, enacted in 1982, reflects the model of the first PRC constitution.<ref>Albert Hung-Yee Chen (1992), pp. 45-54.</ref> The Constitution provides for [[leadership]] through the working class, led in turn by the CCP. The Constitution provides that the NPC is the supreme organ of state power over a structure of other people's congresses at various levels.<ref>Albert Hung-Yee Chen (1992), pp. 48-55.</ref> The NPC has power to:

* amend the Constitution by a two-thirds majority
* promulgate legislation
* elect and remove highest-level officials
* determine the budget
* control economic and social-development planning

The NPC also includes a [[Standing Committee of the National People's Congress|Standing Committee]] that functions much as the NPC does when the NPC is not in session. Although the Standing Committee has had some powers since 1955, its law-making powers were initially provided for in the 1982 Constitution. The NPC sits at the highest level in the hierarchy of governmental structure in the PRC. This national level is followed in descending order by the provincial level (including autonomous regions and municipalities directly under the national level), the [[Prefectures of the People's Republic of China|prefectural]] level, the [[Counties of the People's Republic of China|county]] level, and the townships and towns level. Government members at the lower two levels are directly elected, and those at the higher levels are elected by the lower levels. In addition to the NPC, the provincial people's congresses possesses legislative power and can pass laws so long as they do not contravene the Constitution or higher legislation or administrative regulations.{{cn|date=July 2024}}

The Constitution states its own supremacy.<ref>Albert Hung-Yee Chen (1992), pp. 40-46.</ref> However, it has been theorized{{by whom|date=May 2016}} that the supremacy of the CCP means that the Constitution and law are not supreme, and that this perspective results from the [[Marxism|Marxist]] view of law as simply a [[Base and superstructure|superstructure]] combined with a lack of recognition of rule of law in philosophical or historical tradition. Although the Constitution provides for legislative, executive, judicial, and [[Supreme People's Procuratorate|procuratorial]] powers, they all remain subject to CCP leadership. Often, important political decisions are made through actions which are not regulated by the Constitution. Additionally, [[Court system of the People's Republic of China|court]]s need not rely on the Constitution in deciding cases, and they may not review legislation for Constitutionality.{{citation needed|date=May 2016}}

Since 1979, when the drive to establish a functioning legal system began, more than 300 laws and regulations, most of them in the economic area, have been promulgated. The use of [[Law enforcement in China|mediation committee]]s, informed groups of citizens who resolve about 90% of the PRC's civil disputes and some minor criminal cases at no cost to the parties, is one innovative device. More than 800,000 such committees operate – in both [[rural]] and urban areas.{{cn|date=July 2024}}

In drafting the new laws, the PRC has not copied any other legal system wholesale, and the general pattern has involved issuing laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more [[legal precedent|precedent]]al value than in most civil law jurisdictions. In formulating laws, the PRC has been influenced by a number of sources, including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the [[Republic of China]] on [[Taiwan]], and the [[England and Wales|English]]-based [[common law]] used in Hong Kong.

Legal reform became a government priority in the 1990s. The Chinese government has promoted a reform it often calls "[[legalisation]]" (法制化). Legalisation, among other things, has provided the régime with a gloss of legitimacy and has enhanced predictability.{{citation needed|date=May 2016}} There have been major efforts in the rationalization and strengthening of the legal structure and institution building in terms of developing and improving the professionalism of the legislature, judiciary and legal profession. As [[Chinese economic reform|market reform]]s have deepened and social inequality has widened, legal forums – ranging from [[mediation]] and [[arbitration]] commissions to courts – have come to play an increasingly prominent role.{{cn|date=July 2024}}

The 1994 Administrative Procedural Law allows citizens to sue officials for abuse of authority or [[malfeasance]]. In addition, the [[criminal law]] and the criminal-procedures laws were amended to introduce significant reforms. The criminal-law amendments abolished the crime of "[[counter-revolutionary]]" activity. However [[political dissident]]s are sometimes charged on the grounds of subverting state security or of publishing state secrets. Criminal-procedures reforms also encouraged establishment of a more transparent, adversarial trial process. Minor crimes such as prostitution and drug use are sometimes dealt with under [[re-education through labor]] laws. The PRC constitution and laws provide for [[fundamental human rights]], including [[due process]], but some have argued that they are often ignored in practice. (See [[Human rights in China|Human rights in the People's Republic of China]].)

As a result of a trade war with the [[United States|United States of America]] over violations of [[intellectual property]] rights of American corporations in the early 1990s,{{citation needed|date=May 2016}} the [[People's Republic of China's trademark law]] has been modified and {{as of|1995|lc=on}} offers significant protections to foreign trademark-owners.<ref name="Alford">{{cite book | last= Alford | first= William P. | title= To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization | publisher= [[Stanford University Press]] | year= 1995 | url= https://books.google.com/books?id=NahUmDXLYLwC | isbn= 0-8047-2270-6 | location= Stanford, California | author-link= William P. Alford | access-date= October 18, 2015 | archive-url= https://web.archive.org/web/20151106082718/https://books.google.com/books?id=NahUmDXLYLwC&printsec=frontcover | archive-date= November 6, 2015 | url-status= live }}</ref>{{page needed|date=May 2016}}

After their respective transfers of sovereignty, Hong Kong and [[Macau]] continue to practice English [[common law]] and [[Portugal|Portuguese]] legal systems respectively, with their own [[Court of Final Appeal (disambiguation)|courts of final appeal]]. Hong Kong and Macau lie outside of the legal jurisdiction of the People's Republic of China, except on constitutional issues.{{cn|date=July 2024}}

Due to the growing sophistication of Chinese laws, the expansion of the [[rule of law]], as well as an influx of foreign [[law firm]]s, China has also begun to develop a [[legal services|legal-services]] market. Foreign lawyers have accompanied foreign capital and their clients to China, which has had an immense influence on the promulgation of new Chinese laws based on international norms, especially in regards to intellectual property and [[Corporate law|corporate]] and [[Securities law|securities]] law.<ref name="Alford" />{{qn|date=May 2016}}

On July 1, 1992, in order to meet growing demand, the Chinese government opened the legal-services market to foreign law-firms, allowing them to establish offices in China when the [[Ministry of Justice]] and the [[State Administration of Industry and Commerce]] (SAOIC) issued the Provisional Regulation of Establishment of Offices by Foreign Law Firms regulation.<ref>{{usurped|1=[https://archive.today/20130415140013/http://www.oycf.org/Perspectives2/6_063000/internationalization_of_china.htm The Internationalization of China's Legal Services Market<!-- Bot generated title -->]}}</ref> As a result, many foreign law firms incorporated consulting firms in their home countries or in Hong Kong and then set up subsidiaries in Beijing or Shanghai to provide legal services.{{cn|date=July 2024}}

However, many regulatory barriers to entry remain to protect the domestic legal industry. Issues relating to Chinese law must be referred to Chinese law firms, and foreign lawyers are also prohibited from interpreting or practicing Chinese law or from representing their clients in court. However, in reality many foreign law firms interpret laws and manage litigation by directing the local firms they must have cooperative relationships with. In this regard, China's restrictive legal market can be directly tied{{by whom|date=May 2016}} to a phobia of people asserting their legal rights in the face of rampant corruption. Information received{{by whom|date=May 2016}} from the State Council Legislative Office suggests that China may be allowing foreigners to sit the Chinese Lawyers Examination, or have a mutual recognition treaty with other countries to allow foreign lawyers to conduct non-litigation Chinese legal work.{{citation needed|date=May 2016}}

Since the early 2000s, environmental lawsuits have been available in China.<ref name=":9">{{Cite book |title=Greening East Asia: The Rise of the Eco-Developmental State |date=2020 |publisher=[[University of Washington Press]] |isbn=978-0-295-74791-0 |editor-last=Esarey |editor-first=Ashley |location=Seattle |jstor=j.ctv19rs1b2 |editor-last2=Haddad |editor-first2=Mary Alice |editor-last3=Lewis |editor-first3=Joanna I. |editor-last4=Harrell |editor-first4=Stevan}}</ref>{{Rp|page=15}} 2014 amendments to China's Environmental Protection Law permit public interest environmental litigation, including with non-governmental organizations as proper plaintiffs.<ref>{{Cite book |last1=Dai |first1=Jingyun |title=Greening East Asia: The Rise of the Eco-Developmental State |last2=Spires |first2=Anthony J. |date=2020 |publisher=[[University of Washington Press]] |isbn=978-0-295-74791-0 |editor-last=Esarey |editor-first=Ashley |location=Seattle |chapter=Grassroots NGOs and Environmental Advocacy in China |jstor=j.ctv19rs1b2 |editor-last2=Haddad |editor-first2=Mary Alice |editor-last3=Lewis |editor-first3=Joanna I. |editor-last4=Harrell |editor-first4=Stevan}}</ref>{{Rp|page=227}}

In 2005, China started implementing legal reform, which revived the Maoist-era ideals adopted during the 1950s due to the position that the law is cold and unresponsive to the needs of its citizens.<ref name=":2">[[Carl Minzner]] (2015), "Legal Reform in the Xi Jinping Era", ''Asia Policy''. Vol. 20. p. 4</ref> This initiative favored mediation over court trials when it came to resolving conflicts among citizens and conflicts between citizens and the state.<ref name=":2" /> It also revived judicial populism at the expense of judicial professionalism and was marked by the return of the mass-trial model used during the 1940s.<ref name=":0" />

China's first comprehensive [[Competition law|antitrust]] law was the [[Anti Monopoly Law of China|Anti-Monopoly Law]] which was passed in 2007 and became effective in 2008.<ref name=":Zhang">{{Cite book |last=Zhang |first=Angela Huyue |title=High Wire: How China Regulates Big Tech and Governs Its Economy |publisher=[[Oxford University Press]] |year=2024 |isbn=9780197682258 |doi=10.1093/oso/9780197682258.001.0001}}</ref>{{Rp|page=89}}

In 2009, China amended its Criminal Law to set a low threshold for the prosecution of malicious [[Cybercrime|cybercrimes]] and illegal data sales.<ref name=":Zhang" />{{Rp|page=131}}

Xi Jinping encourages legal professionals to selectively integrate elements of traditional legal practice into modern approaches.<ref name=":Shan">{{Cite book |last=Shan |first=Patrick Fuliang |title=China under Xi Jinping: A New Assessment |publisher=[[Leiden University Press]] |year=2024 |isbn=9789087284411 |editor-last=Fang |editor-first=Qiang |chapter=What Did the CCP Learn from the Past? |editor-last2=Li |editor-first2=Xiaobing}}</ref>{{Rp|page=36}}

In 2015, the Administrative Procedure Law was revised to expand the people's right to sue the government.<ref name=":0242">{{Cite book |last=Jin |first=Keyu |title=The New China Playbook: Beyond Socialism and Capitalism |date=2023 |publisher=Viking |isbn=978-1-9848-7828-1 |location=New York |author-link=Keyu Jin}}</ref>{{Rp|page=136}}

The primary laws regarding personal data security and privacy are the 2017 [[Cybersecurity Law of the People's Republic of China|Cyber Security Law]], the 2021 [[Data Security Law of the People's Republic of China|Data Security Law]], and the 2021 [[Personal Information Protection Law of the People's Republic of China|Personal Information Protection Law]].<ref name=":Zhang" />{{Rp|page=|pages=131-132}}