Keith Mack
China's legal system is a socialist legal system with Chinese characteristics, which is very different from common law and civil law systems. It is largely a civil law system influenced by the laws of the Soviet Union, Germany, and Japan. Mainland China's laws differ from those of the administrative regions of Hong Kong and Macau, which maintain their separate legal traditions and systems. Hong Kong operates on a common law system inherited from the UK, while Macau operates on a civil law system inherited from Portugal. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches.
| Characteristics | Values |
|---|---|
| Type of legal system | Civil law system |
| Influences | Soviet Union, Germany, Japan, common law (in some fields) |
| Number of legal systems | 4 |
| Number of law categories | 7 |
| Number of law levels | 3 |
| Criminal law | Criminal Law, 10+ related supplementary decisions, amendments, and legal interpretations |
| Lawsuit and non-lawsuit procedures | Criminal Procedures Law, Civil Procedures Law, Administrative Procedures Law, Law on Special Procedures for Maritime Lawsuits, Extradition Law, Arbitration Law |
| Local laws and regulations | Formulated by the Provincial People's Congress and its Standing Committee |
| Departmental regulations | Formulated by the departments directly under the State Council |
| Administrative regulations | Over 600 currently in force |
| Local statutes | Over 7,000 currently in force |
| Autonomous area regulations | Over 600 currently in force |
| Hong Kong | Common law system inherited from the UK |
| Macau | Civil law system inherited from Portugal |
| Taiwan | Civil law system influenced by German and Japanese laws |
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What You'll Learn
Hong Kong and Macau maintain their own legal systems
Hong Kong and Macau are two special administrative regions (SARs) that hold a unique position within China. They are both subject to the "One Country, Two Systems" policy, which allows them to maintain their own legal and economic systems, distinct from mainland China. This principle was established with the understanding that, upon reunification, despite the practice of socialism in mainland China, Hong Kong and Macau could retain their established systems under a high degree of autonomy for up to 50 years after reunification.
Hong Kong, a former British colony, was handed over to China in 1997 under the terms of the Sino-British Joint Declaration of 1984. It continues to practice English common law, with its own court of final appeal. Hong Kong has its own currency, the Hong Kong Dollar (HKD), and English and Chinese are its official languages. The Mainland Affairs Council of the Republic of China has cited instances of breaches of the Hong Kong people's rights to self-rule and freedom of speech, as well as severe interventions in the judicial system. In 2020, the United States ended Hong Kong's special trade privileges, citing China's replacement of the "one country, two systems" formula with "one country, one system".
Macau, a former Portuguese colony, was returned to China in 1999 under the terms of the Sino-Portuguese Joint Declaration of 1987. It maintains an independent legal and financial system, allowing the legal development of the gambling industry and opening up to the international market. Macau uses the Macanese Pataca (MOP) as its currency, and its official languages are Cantonese and Portuguese. Macau has not seen the same level of protests and civil unrest as Hong Kong.
Both Hong Kong and Macau have separate border controls and independent postal systems from mainland China. They are required to observe the constitution, basic laws, and the power of the National People's Congress, but they largely maintain their legal systems from colonial times.
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China's civil law system
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, as well as traditional Chinese approaches. The core of modern Chinese law reflects a blend of traditional Chinese legal thought and modern influences, primarily drawing from the socialist system of law. The country's laws fall under seven categories: the Constitution and Constitution-related, civil and commercial, administrative, economic, social, criminal laws, and the law on lawsuit and non-lawsuit procedures.
In mainland China, the laws are influenced by the legal systems of the Soviet Union, Germany, and Japan. Common law has also influenced some fields in the past two decades. The country's legal system is not monolithic; it differs from the legal traditions and systems of its administrative regions, Hong Kong and Macau, which have retained 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.
China's legal system is officially referred to as the socialist rule of law with Chinese characteristics. It is a socialist legal system that strongly differs from common law and civil law systems. Local governments must enforce and comply with national law and order. The country has a complex framework, and its laws are created, interpreted, and enforced by the National People's Congress, which has a system of unified power. The NPC and its Standing Committee have promulgated more than 229 laws currently in force, while local people's congresses and their standing committees have enacted over 7,000 local statutes.
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Influence of Confucian philosophy
China's legal system is largely a civil law system, with roots in the Great Qing Code and various historical systems. It has been influenced by continental European legal systems, especially German civil law. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches.
For most of China's history, its legal system has been influenced by Confucian philosophy, which advocates social control through moral education. Confucius, a Chinese scholar, politician, and philosopher, believed that human beings are fundamentally good. He advocated ruling through 'li', which refers to traditional customs, mores, and norms, allowing people to develop a sense of shame and good character. This is in contrast to government regulations and penal law. The Confucian philosophy places the state at the top of the hierarchy, with the people submitting to its authority. This system has been used to maintain social order and stability.
The Han dynasty formally recognized four sources of law: lü (codified laws), ling (the emperor's orders), ke (statutes inherited from previous dynasties), and bi (precedents). The local Confucian gentry played a crucial role as arbiters, handling all but the most serious local disputes.
However, Confucian ideology has been in tension with Legalism, another major philosophical school that has influenced China's legal system. While Confucianism emphasizes tradition and the authority of the leader, Legalism focuses on codified law and criminal sanctions, binding even the emperor. The Legalist tradition gained prominence during the reign of Qin Shihuang, the first emperor of a unified China, who established a bureaucracy, military, and taxation system based on Legalist principles. Nevertheless, due to the cruelty associated with his rule, the Legalist school's reputation suffered, and subsequent dynasties, such as the Han dynasty, turned to Confucianism as a more humane philosophical foundation.
Despite these tensions, both Confucianism and Legalism share a paternalistic conception of the state, believing that the state knows better than its citizens and makes laws to protect them. This concept has persisted throughout China's history and continues to influence its legal system today.
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Socialist legal system
Socialist law or Soviet law is a term used in comparative legal studies for the general type of legal system used in socialist and formerly socialist states. It is based on civil law, with major modifications and additions influenced by Marxist-Leninist ideology. The Marxist conception of the law and the state is that they are instruments of coercion in the hands of the bourgeoisie.
In the context of property law, socialist state ownership confers only those powers that are necessary to achieve the state's predetermined economic goals. Contracts assist in the preparation and execution of the state's economic plan, which is the primary means of ordering economic transactions. Socialist law also differs from Western legal systems in its lack of emphasis on the concept of res iudicata, which promotes legal certainty and stability by treating the situation established by a judgment as final and conclusive. This is incompatible with socialist countries' claim of general political control over all state activities.
In the late 20th century, following the collapse of the Soviet Union, the legal systems of socialist states nearly disappeared. However, the law of the People's Republic of China still displays clear traces and patterns of the socialist legal family. China's legal system is officially referred to as the "socialist rule of law with Chinese characteristics". It is largely a civil law system, influenced by the German civil law system and traditional Chinese approaches, such as Confucian philosophy and Legalist emphasis on codified law.
Since the formation of the People's Republic of China in 1949, the country has lacked judicial independence as the courts' authority is limited by the system of unified power under the National People's Congress. China's legal system has been criticised for being subordinated to the ruling Communist Party.
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Criminal law and procedures
China's legal system is not based on common law. It is a civil law system with socialist characteristics, largely influenced by the German civil law system, traditional Chinese approaches, and socialist law. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese views. The country's legal system has been influenced by various sources, including the English-based common law used in Hong Kong, but it does not follow the common law tradition.
Hong Kong and Macau, as special administrative regions, maintain their legal systems from colonial times, with Hong Kong practising English common law and Macau practising Portuguese law. These regions are required to observe the constitution, basic laws, and the power of the National People's Congress while retaining their legal traditions.
China's criminal law system differs significantly from that of other countries, such as Canada. It is important for foreigners to understand the local laws as ignorance is not an excuse, and they will be subject to China's judicial system if they break the law within its territory.
Under the Criminal Procedure Law, the public security organs are responsible for investigation, detention, arrest, and pretrial procedures in criminal cases. The people's procuratorates review and approve arrests, handle direct investigations, and initiate public prosecutions. The people's courts conduct the trials, with the mission to ensure timely and accurate fact-finding, correct application of the law, punishment of criminals, protection of the innocent, and respect for human rights.
During a trial, there can be multiple court hearings, and family members are usually allowed to attend and observe but not speak to the defendant. The judgment, including sentencing, is typically pronounced during the final court hearing or presented in written form. The court has two to six months to hold hearings and issue an initial judgment, with the possibility of extensions under certain circumstances.
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Frequently asked questions
No, China's legal system is largely a civil law system. It operates under a socialist legal system with Chinese characteristics and is influenced by the Civil Law tradition.
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 various sources, including traditional Chinese views, its socialist background, and the English-based common law used in Hong Kong.
China's legal system is very different from common law systems. In China, the law refers to statutes and excludes case law, meaning court cases are not law. Only rules codified by the legislature, executive, and judiciary are considered laws.
China's legal system is a blend of traditional Chinese legal thought and modern influences. It is centered on the Constitution and covers laws that fall under seven categories: the Constitution and Constitution-related, civil and commercial, administrative, economic, social, criminal, and lawsuit and non-lawsuit procedures.
