Kara Sears
China's legal system is largely a civil law system, although it has roots in the Great Qing Code and various historical systems, reflecting the influence of continental European legal systems, especially the German civil law system in the 19th and early 20th centuries. Hong Kong and Macau, the two special administrative regions, are required to observe the constitution and basic laws, but they can maintain their legal systems from colonial times. China's legal system is unique and different from common law and other civil law systems, characterised as a Socialist Legal System with Chinese Characteristics.
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What You'll Learn
China's legal system is a civil law system
The Chinese legal system is a socialist legal system with uniquely Chinese characteristics, differing from common law and civil law systems. The Constitution, which states that the Chinese people are under the leadership of the Communist Party of China, is the supreme law of the land. However, it is not directly justiciable as there is no judicial mechanism to enforce Constitutional rights unless a specific law or regulation has been enacted to protect that right. The National People's Congress (NPC) is the highest state organ in China and has the power to remove the heads of other state organs, including its own President and Vice-President. The State Council, the Supreme People's Court (SPC), and the Supreme People's Procuratorate (SPP) are all accountable to the NPC.
In China, the law refers to statutes and excludes case law. Court cases are not considered law, and only rules codified by the legislature, the executive, and the judiciary are considered laws. There is no strict precedential concept for case law, and there is no principle of stare decisis. The judiciary is controlled by the executive and is not a separate branch of government. China has a tradition of adopting civil law systems, and the development of the current legal system dates back to the late 1970s, after the end of the Cultural Revolution.
The Chinese Communist Party (CCP) has maintained effective control over the courts and their personnel. The CCP put in place an "open door" policy, utilising the law as a tool to support economic growth. China has a complex process for recruiting judicial candidates, who must meet political and physical standards, pass a national bar exam, and undergo an appraisal of their qualifications. Local court presidents are elected by the local people's congresses, and they appoint other court personnel.
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The country's legal system is influenced by its history and the Communist Party
China's legal system is largely a civil law system, though it has roots in the Great Qing Code and various historical systems. It is influenced by continental European legal systems, especially the German civil law system in the 19th and early 20th centuries. Hong Kong and Macau, the two special administrative regions, are required to observe the constitution and the basic laws of the National People's Congress. However, they maintain their legal systems from colonial times.
The formation of the People's Republic of China in 1949 brought about a more Soviet-influenced system of socialist law. The Chinese Communist Party (CCP) abolished all legal systems of the Republic of China after 1949, and the country lost most features of a formal legal system until the end of the Cultural Revolution in 1976. The CCP's Central Political and Legal Affairs Commission maintains effective control over the courts and their personnel. The judiciary is controlled by the executive and is not a separate branch of government.
China's legal system has been influenced by various sources, including traditional Chinese views of the role of law, the country's socialist background, and the German-based law of the Republic of China on Taiwan. The Confucian notion that morality and self-discipline are more important than legal codes influenced many historians to conclude that law was not a significant part of Imperial Chinese society. However, this view has been criticised, and it is now recognised that Imperial China had a sophisticated system of criminal and civil law comparable to European systems.
The word for law in classical Chinese was "fǎ" (法), which denotes meanings of "fair", "straight", and "just". The Chinese character for "fǎ" also carries the sense of "standard, measurement, and model". The current Chinese legal system dates back to the late 1970s, after the Cultural Revolution, when Deng Xiaoping and the CCP implemented an "open door" policy. This policy utilised the law as a tool to support economic growth.
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Hong Kong and Macau have unique legal systems
China's legal system is largely a civil law system, although it has roots in the Great Qing Code and various historical systems, reflecting the influence of continental European legal systems, especially the German civil law system in the 19th and early 20th centuries. However, Hong Kong and Macau, the two special administrative regions, have unique legal systems.
Hong Kong and Macau were handed over to China under separate agreements, with the understanding of "One Country, Two Systems". This principle allows the SARs to maintain their own legal and economic systems, distinct from Mainland China. Hong Kong was a British territory until 1997, when it was handed over to China under the terms of the Sino-British Joint Declaration of 1984. It operates on a common law system inherited from the UK. Hong Kong has its own currency, the Hong Kong Dollar (HKD), and maintains separate border control from Mainland China. English and Chinese are the official languages in Hong Kong.
Macau was a Portuguese territory until 1999, when it was transferred to China under the terms of the Sino-Portuguese Joint Declaration of 1987. Macau operates on a civil law system inherited from Portugal. The region has its own currency, the Macanese Pataca (MOP), and separate border controls from Mainland China. Portuguese and Chinese are the official languages in Macau.
While the SARs are part of China, it is important to recognize the ways in which they differ from Mainland China. Companies operating in Hong Kong, Macau, and Mainland China need to navigate the differing legal and regulatory landscapes. For example, companies should be cautious when entering into agreements that require them to provide services in multiple jurisdictions, as it will mean complying with multiple sets of laws and regulations.
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The Chinese judiciary has been rapidly modernised
China's legal system is largely a civil law system, with roots in the Great Qing Code and various historical systems. It is influenced by continental European legal systems, especially the German civil law system in the 19th and early 20th centuries. Hong Kong and Macau, the two special administrative regions, are required to observe the constitution and basic laws, but they can maintain their legal systems from colonial times. Hong Kong operates on a common law system inherited from the UK, while Macau has a civil law system inherited from Portugal. Taiwan, on the other hand, has a civil law system influenced by German and Japanese laws.
The Chinese judiciary is controlled by the executive and is not an independent branch of the government. The court system parallels a hierarchy of prosecuting offices called people's procuratorates, with the Supreme People's Procuratorate being the highest. The National People's Congress (NPC) is the highest political entity in the country, with the power to remove the heads of other state organs, including the President and Vice-President. The Organic Law of the People's Courts sets forth the judiciary's structure, personnel rules, and powers.
Judicial candidates in China are recruited through an open exam process, and they must meet political and physical standards. In addition to passing a national bar exam and a civil service exam, they undergo a qualification appraisal. Undergraduate degree holders must have 1-2 years of work experience, while master's degree holders in law can become judges immediately after graduation. First instance judges are eligible for promotion to higher courts, and under a recent reform, members of the bar can also be appointed as judges. Local court presidents are elected by local people's congresses, and they appoint other court officials.
Chinese judges undergo regularly scheduled quantitative performance assessments, with the Supreme People's Court introducing a nationwide Case Quality Evaluation System in 2011. This system measures efficiency and accuracy, includes public satisfaction surveys, and provides rewards for strong performance through promotions and bonuses. Underperformance can result in sanctions such as mandatory training, adjustment to grade or salary, or dismissal.
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The country's legal system is influenced by German civil law
China's legal system is a socialist legal system with uniquely Chinese characteristics. It is a civil law system with roots in the Great Qing Code and various historical systems, reflecting the influence of continental European legal systems, especially German civil law in the 19th and early 20th centuries.
During the Qing dynasty, the Chinese government sought to modernise its legal system by hiring Japanese legal experts to copy Japan's legal system, which was itself influenced by German civil law. The Imperial Recodification Commission of the Qing dynasty also prepared a proposed civil code heavily influenced by German and Japanese legal systems. After the establishment of the Republic of China in 1911, the Chinese government maintained this civil law system, which was significantly influenced by German civil law.
The Republic of China's civil code, adopted in 1929, was heavily influenced by German civil law. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches. The establishment of the People's Republic of China in 1949 brought a more Soviet-influenced system of socialist law, but the German influence remained.
China's legal system is largely influenced by German civil law, but it also incorporates traditional Chinese approaches and socialist law. The country's legal system has been characterised as a "Socialist Legal System of Laws with Chinese Characteristics". While China's legal system has been influenced by various sources, including traditional Chinese views, its socialist background, and English-based common law used in Hong Kong, the German influence on the civil law system has been significant.
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Frequently asked questions
China's legal system is largely a civil law system, although it has been influenced by various historical systems.
The civil law system in China is based on the country's unique historical and political context. While it has roots in the Great Qing Code, it also reflects the influence of continental European legal systems, especially the German civil law system in the 19th and early 20th centuries.
Unlike common law jurisdictions, China's civil law system does not have a strict precedential concept for case law and does not follow the principle of stare decisis. China's laws are influenced by various sources, including the country's traditional views toward the role of law, its socialist background, and the legal systems of other countries.
