Kara Sears
China is not a common-law country. Instead, it has a civil law system, with four distinct legal systems within its territory: Mainland China, Hong Kong, Macau, and Taiwan. Hong Kong, a special administrative region, operates on a common law system inherited from the UK. The legal system of the People's Republic of China is characterized as a Socialist Legal System with Chinese Characteristics, reflecting the influence of continental European legal systems, especially German civil law.
| Characteristics | Values |
|---|---|
| Type of Law | Civil Law |
| Legal System | Socialist Legal System with Chinese Characteristics |
| Legal Profession | Lawyers must pledge loyalty to the CCP |
| Independence of Judiciary | No |
| Power to Interpret Laws | Vested in the NPCSC |
| Judicial Decisions | Not considered primary sources of law |
| Common Law Influence | Some influence in specific regions |
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What You'll Learn
China's civil law system
China's legal system is a civil law system with uniquely Chinese characteristics. It is not a common law system. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches.
The civil law system in China is largely influenced by the German civil law system, with other influences from the Soviet Union, Japan, and Switzerland. During the Qing dynasty, the Chinese government hired Japanese legal experts to modernise the legal system, and the proposed civil code was influenced by German and Japanese legal systems. After the Xinhai Revolution, 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 a more Soviet-influenced system of socialist law.
Unlike common law jurisdictions, China's civil law system does not have a strict precedential concept for case law, and there is no principle of stare decisis. Higher courts have the power of supervision and guidance, meaning they can reopen a case decided at a lower level. Courts in China do not have a general power of judicial review, and there is no judicial independence or separation of powers. Chinese judges only apply statutory law, and while there is no case law, China's Supreme People's Court is trying to establish a certain degree of "case law".
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Hong Kong's common law system
China does not have a common law system. Instead, it operates a civil law system, with four distinct legal systems within its territory:
- Mainland China: influenced by the laws of the Soviet Union, Germany, and Japan, and in recent years, affected by common law in some fields.
- Hong Kong: a common law system inherited from the UK.
- Macau: a civil law system inherited from Portugal.
- Taiwan: a civil law system influenced by German and Japanese laws.
Hong Kong's administrative law is modelled on that of England and Wales, especially the law of judicial review. This applies to both procedure and grounds for review, although there are some differences. Hong Kong's family law is also heavily influenced by English and Welsh law, with some important modifications. For example, there is no community of property, and property rights are not affected by marriage.
Hong Kong's courts can interpret contracts using "commercial common sense", according to a ruling in 2013. This ruling drew on case law from various common law jurisdictions. Hong Kong's legal system does not have a strict concept of stare decisis, and higher courts can reopen cases decided at a lower level, a power not usually associated with common law jurisdictions.
Since the handover in 1997, Hong Kong has maintained its legal system, separate from mainland China, in accordance with the "one country, two systems" doctrine.
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Macau's civil law system
China does not have a common law system. Instead, it has a civil law system, with roots in the Great Qing Code and other historical systems. However, China's legal system is unique and differs from both common law and typical civil law systems. The country does not have judicial independence or judicial review, and the courts lack authority beyond what is granted to them by the National People's Congress (NPC).
Macau, a Special Administrative Region of China, has a separate court system and a civil law system inherited from Portugal. Macau's legal code is written in Portuguese, and the University of Macau's law classes are taught in the same language. The region's legal system is based on the civil law tradition of continental European legal systems, with significant influence from German law. However, Macau's legal system also reflects influences from Chinese, Italian, and common law.
The apex of Macau's legal system is the Basic Law of the Macau Special Administrative Region (SAR), a Chinese law approved in accordance with the Sino-Portuguese Joint Declaration on the Question of Macau and Article 31 of the Constitution of the People's Republic of China (PRC). The Basic Law has constitutional rank within Macau and establishes the region's courts as independent from legislative and executive powers. Macau's court system consists of three levels, with the Court of Final Appeal having the ultimate power of adjudication.
The Macau SAR courts are structured into three levels: the First Instance Courts, the Second Instance Court, and the Court of Final Appeal. The First Instance Courts include the Judicial Base Court and the Administrative Court, where all cases must begin. The Judicial Base Court handles civil, criminal, small claims, labour, family, and minors' disputes, while the Administrative Court has jurisdiction over administrative, tax, and customs duties cases. The Second Instance Court handles appeals from the First Instance Courts and voluntary arbitration proceedings.
Macau's legal system includes the five 'classic' codifications: the Civil Code, the Commercial Code, the Civil Procedure Code, the Penal Code, and the Criminal Procedure Code. Additionally, there are smaller codifications in fields like administrative law. The Commercial Code, influenced by common law, includes legal instruments such as the floating charge, adapting to the specific needs of the Special Administrative Region. The region also has a special tax regime, making it attractive for foreign investors.
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Taiwan's civil law system
China's legal system is largely a civil law system, though it has roots in the Great Qing Code and various historical systems. It reflects the influence of continental European legal systems, especially the German civil law system in the 19th and early 20th centuries. However, China does not have a common law system.
Taiwan, on the other hand, operates on a civil law system influenced by German and Japanese laws. The law of the Republic of China, as applied in Taiwan, Penghu, Kinmen, and Matsu, is based on civil law with its origins in modern Japanese and German legal systems. The main body of laws is codified into the Six Codes, which are promulgated by the President after being passed by the Legislative Yuan. The enforcement rules of laws are issued by the competent authority under the Executive Yuan designated by the legislation.
In summary, Taiwan's civil law system is a product of historical influences from Japan, Germany, and France, shaped by the unique context of Taiwanese history and governed by a three-tiered court system overseen by the Judicial Yuan.
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No case law
China's legal system is primarily a civil law system, which means that the law is based on statutes and excludes case law. In other words, court cases are not law, and only rules codified by the legislature, the executive, and the judiciary are considered laws. There are no general principles outlined in the constitution that administrative regulations and rules must follow. Instead, the principles of legislation and the validity and priority of law are listed in the Legislation Law, constitutional provisions, and basic laws enacted by the National People's Congress (NPC) and its standing committee.
The power to interpret laws in China is vested in the Standing Committee of the National People's Congress (NPCSC), not the judiciary branch. The NPCSC's interpretations of laws have the same effect as the laws themselves. Judicial decisions and interpretations issued by the Supreme People's Court of China are not considered primary sources of law. While China's Supreme People's Court is attempting to establish a certain degree of "case law", Chinese judges only apply statutory law.
Unlike common law jurisdictions, there is no strict precedential concept for case law and no principle of stare decisis in China. In addition, there is no case or controversy requirement that would require the Supreme People's Court to limit its decisions to actual cases. Higher courts in China also have the power of supervision and guidance, meaning they can reopen a case that has been decided at a lower level.
Hong Kong, a special administrative region of China, operates under a separate legal system based on the principles of common law, inherited from the UK during colonial times. The legal system of Hong Kong is based on the rule of law and the independence of the judiciary, with the Basic Law providing the constitutional framework. The Chief Executive of Hong Kong is accountable to the Central People's Government and the Hong Kong Special Administrative Region (HKSAR).
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Frequently asked questions
No, China is not a common-law country. China has a civil law system, with the law referring to statutes rather than case law.
The legal system in mainland China is a civil law system influenced by the laws of the Soviet Union, Germany, and Japan. It is a socialist legal system with Chinese characteristics, which is different from common law systems.
China does not have an independent judicial system. The Chinese Communist Party's Central Political and Legal Affairs Commission maintains effective control over the court system and its personnel.
No, Hong Kong operates under a different legal system from mainland China. Hong Kong has a common law system inherited from the UK, while mainland China does not.
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