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 of the National People's Congress, but they largely maintain their legal systems from colonial times. Hong Kong operates on a common law system inherited from the UK, while Macau operates on a civil law system inherited from Portugal. China's legal system is unique and very different from common law and other civil law systems, with the Constitution stating that the Chinese people are under the leadership of the Communist Party of China.
| Characteristics | Values |
|---|---|
| Type of Law | Civil Law |
| Legal System | Socialist Legal System with Chinese Characteristics |
| Constitution | The Constitution of the People's Republic of China |
| Supreme Law | The Constitution, stating that the Chinese people are under the leadership of "The Communist Party of China" |
| Branches of Government | National People's Congress (NPC) (legislative), the State Council (executive), and the Supreme People's Court and Supreme People's Procuratorate (judicial) |
| Court System | Civil Law Court Structure |
| Legal Code | Great Qing Legal Code |
| Influences | Soviet Union, Germany, Japan, Common Law, English-based Common Law, Portuguese Legal System, Roman Law, Corpus Juris Civilis, Code of Justinian, Confucianism, Legalism |
| Legal Reform | "Legalisation" |
| Hierarchy of Laws | Constitution, Laws made by the National People's Congress (NPC), Administrative Regulation, Laws made in provinces by the Local People's Congress Regulations, Government Rules, Ministry Rules |
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What You'll Learn
China's legal system is largely civil law
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 of the National People's Congress, but they largely 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.
The civil law system in China is codified, with its origins in ancient Roman law, or the "code of Justinian", having a statute and code-based system. Chinese laws are similar to those in typical civil law countries such as France, and they are bound by and divided into private and public laws. Private law includes civil law, family, property, contract, commercial, and employment laws, while public law includes administrative, constitutional, and criminal law. The Constitution is the supreme law of the land, followed by laws made by the National People's Congress, administrative regulations set out by the State Council, and laws made in the provinces by the Local People's Congress.
China's legal system has evolved significantly since the death of Mao Zedong in 1976, with the country showing numerous changes in the development of its legal system. During Mao's reign from 1949 to 1976, there was a vacuum in the legal system as the Communist Party abolished all the codes from the 1930s. After Mao's death, the country began to reconstruct its social structure and legal system, using the law as a tool to support economic growth. The Chinese legal system is unique, differing from both common law and typical civil law systems. For example, China does not systematically lay down general principles in its constitution for administrative regulations and rules to follow. Instead, the principles of legislation and the validity and priority of law are listed in the Legislation Law, constitutional provisions, and basic laws.
China's courts do not have authority beyond what is granted to them by the National People's Congress, and the Chinese Communist Party's Central Political and Legal Affairs Commission maintains effective control over the courts and their personnel. Chinese judges only apply statutory law, and there is no strict precedential concept for case law. However, the Supreme People's Court is trying to establish a certain degree of "case law". The country has a tradition of adopting civil law systems, and its laws have been influenced by various sources, including traditional Chinese views, its socialist background, and the laws of other countries such as Germany, Japan, and the Soviet Union.
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It has unique Chinese characteristics
China's legal system is largely a civil law system, with roots in the Great Qing Code and various historical systems. However, it has unique Chinese characteristics that set it apart from typical civil law systems.
Firstly, China's legal system is influenced by its socialist background and the specific political and historical context of the country. After the formation of the People's Republic of China in 1949, the country adopted a socialist legal system with Chinese characteristics, reflecting the leadership of the Communist Party of China. This system lacks American-style checks and balances, and the courts do not have authority beyond what is granted to them by the National People's Congress, the highest state organ in China.
Secondly, China's civil law system does not systematically lay down general principles in its constitution, unlike some other civil law jurisdictions. Instead, the principles of legislation, validity, and priority of law are found in various sources, including the Legislation Law, constitutional provisions, and laws enacted by the National People's Congress. This has led to a situation where judicial decisions have more precedential value than in most civil law jurisdictions.
Thirdly, China's legal system has been influenced by a variety of sources, including traditional Chinese views towards the role of law, Confucian values, and international norms. While there have been attempts to import legal systems from other countries, such as the Soviet Union, China has not copied any legal system wholesale. Instead, it has developed a unique system that reflects its own cultural and historical context.
Lastly, China's legal system is constantly evolving and undergoing reforms. For example, after the Cultural Revolution, Deng Xiaoping and the CCP implemented an "open door" policy that used the law as a tool to support economic growth. More recently, China has been influenced by an influx of foreign law firms and has been working to meet international norms, especially in areas such as intellectual property and corporate and securities law.
In conclusion, while China's legal system is primarily a civil law system, it has unique Chinese characteristics that reflect the country's political, historical, and cultural context. These characteristics set it apart from typical civil law systems and showcase the dynamic nature of China's legal development.
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Hong Kong and Macau have their own 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. It is very different from common law and civil law systems. The Chinese government characterises its legal system as a "socialist legal system with Chinese characteristics". 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.
Hong Kong and Macau, the two special administrative regions, are required to observe the constitution and the basic laws and the power of the National People's Congress. However, they are able to largely maintain their legal systems from colonial times. Hong Kong's legal system was developed under British governance, based on English common law. It is fundamental to Hong Kong's legal system that members of the judiciary are independent of the executive and legislative branches of the government. Hong Kong's courts of justice include the Court of Final Appeal, the High Court, the District Court, the Lands Tribunal, the Magistrates' Court, and several other courts.
Macau's legal system, on the other hand, is based on Portuguese law and is therefore part of the civil law tradition of continental European legal systems. Macau's legal code is written in Portuguese, and the University of Macau's law classes are taught in Portuguese. The Basic Law of Macau, which is the main legal document of the Special Region, was modelled on the Basic Law of Hong Kong. Macau's courts are structured into three levels and have the final power of adjudication, except in very narrow areas.
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Chinese judges apply statutory law
China's legal system is largely a civil law system, though 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, China has no common law. In China, the law means statutes and excludes case law. Only rules codified by the legislature, the executive, and the judiciary are considered laws.
Chinese judges only apply statutory law. The Constitution of the People's Republic of China is the supreme law of the land, but 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 issue laws, which become effective when signed by the President. The State Council and the Supreme People's Court are accountable to the NPC.
The Organic Law of the People's Courts established four levels of courts in the general administrative structure: Supreme, High, Intermediate, and Primary. Judges are elected or appointed by people's congresses at the corresponding levels to serve a maximum of two five-year terms. Most trials are administered by a collegial bench of one to three judges and three to five assessors. Trials are conducted by the inquisitorial system, in which judges and assessors actively question witnesses, rather than the adversarial system, where the judge acts as an impartial referee between two contending attorneys.
The Supreme People's Court (SPC) is China's apex court, reviewing lower court judgments, hearing certain first-instance disputes, administering the judiciary, and issuing binding interpretations on how to apply laws and writs. It has supervisory authority over lower courts and has three permanent divisions: criminal, civil, and economic. The SPC has established six circuit courts outside the state capital to hear cross-provincial cases within their respective jurisdictions.
The SPC is trying to establish a certain degree of "case law". According to Article 4 of the Guiding Opinions on Unifying the Application of Laws to Strengthen the Retrieval of Similar Cases, published by the SPC in 2020, judges are required to search for and apply similar cases to ensure the "unified and proper implementation of laws" during the case hearing process. However, the definition of similarity is vague, and not all judges are familiar with the process of case analogy.
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China's legal system has been influenced by many sources
The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches. China's legal system has been influenced by the civil law tradition, with an emphasis on legal codes and written legislation as the primary sources of legal authority. The German civil law system, in particular, has had a significant influence on China's legal system in the 19th and early 20th centuries. Additionally, the law in China has been influenced by traditional Chinese views, such as Confucian philosophy, which emphasizes social control through moral education, and Legalism, which emphasizes codified law and criminal sanctions.
The establishment of the People's Republic of China in 1949 brought about a more Soviet-influenced system of socialist law. During the Anti-Rightist Campaign in the 1950s, there was an attempt to import a socialist legal system based on that of the Soviet Union. The Cultural Revolution and the Anti-Rightist Campaign caused major disruptions in the legal system, but under Deng Xiaoping, China's legal system underwent modern legal reform. The contemporary law of the People's Republic of China is less influenced by historical norms and more by utilitarian policies that support economic growth.
China's legal system also varies across different regions. Hong Kong, a special administrative region, operates on a common law system inherited from the UK, while Macau, another special administrative region, operates on a civil law system inherited from Portugal. Taiwan, officially known as the Republic of China, has a civil law system influenced by German and Japanese laws.
China's legal system is constantly evolving, with new laws being introduced and revised regularly to address various issues, such as anti-money laundering, preschool education, cultural relics protection, and national defense.
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Frequently asked questions
China is a civil law country.
Civil law is a codified system of law that primarily consists of codes with origins in ancient Roman law. Common law, on the other hand, is based on case law and judicial precedent.
China's civil law system is influenced by various historical systems and continental European legal systems, especially German civil law. The country's laws are divided into private and public laws, with the Constitution at the top of the hierarchy, followed by laws made by the National People's Congress.
