An Introduction to Chinese Legal Culture

Figure 2-1, Population and Its Composition, in China Statistical Yearbook – 2021, http://​www.​stats.​gov.​cn/​tjsj/​ndsj/​2021/​html/​E02-01.​jpg. In 2021, almost 22 million people were living in the City of Beijing, the capital of China. See Statistical Bulletin of 2021 for Economic and Social Development of Beijing Municipality (北京市2021年国民经济和社会发展统计公报), http://​www.​beijing.​gov.​cn/​gongkai/​shuju/​tjgb/​202203/​t20220301_​2618806.​html.

Han Chinese accounts for 1.28 billion of China’s overall population of 1.4 billion. See Figure 2-22, Population by Ethnic Groups and Gender, in China Statistical Yearbook – 2021, http://​www.​stats.​gov.​cn/​tjsj/​ndsj/​2021/​indexch.​htm.

According to data from the latest national census conducted in 2020, the overall population of the 55 minority people is about 125.47 million, accounting for 10.26% of the Chinese population. See Ethnic minority proportion in China’s population rises, https://​english.​www.​gov.​cn/​archive/​statistics/​202105/​11/​content_​WS6099f579c6d0df​57f98d953c.​html.

The State Council Information Office and The China International Publishing Group, A United Multi-Ethnic Country, http://​www.​china.​org.​cn/​e-white/​4/​4.​1.​htm.

National Health and Family Planning Commission of PRC, Family planning policy prevents 400 million births, http://​www.​chinadaily.​com.​cn/​china/​2006-11/​09/​content_​729166.​htm.

Life expectancy at birth, total (years) – World, China, https://​data.​worldbank.​org/​indicator/​SP.​DYN.​LE00.​IN?​locations=​1W-CN. China’s family planning has always included the two aspects of controlling the population size and improving the population quality in terms of education and health. While making efforts to control the population at an appropriate size, the Chinese government has devoted great attention to developing educational, medical and other services in order continuously to improve the quality of the population in terms of education and health. See Information Office of the State Council of the People’s Republic of China (国务院新闻办公室), “Family Planning in China” (中国的计划生育) (August 1995), http://​www.​scio.​gov.​cn/​zfbps/​ndhf/​1995/​Document/​307993/​307993.​htm.

More information about the change of the one-child policy can be found in “Wang Pei’an, Vice Minister of National Health and Family Planning Commission, explains the new two-child policy”, https://​www.​chinadaily.​com.​cn/​m/​chinahealth/​2015-11/​06/​content_​22390244.​htm.

More information about the policy concern of the three-child policy can be found in “China unveils details of three-child policy, support measures”, http://​www.​xinhuanet.​com/​english/​2021-07/​21/​c_​1310073319.​htm.

The 14 countries bordering China are Afghanistan, Bhutan, Burma, India, Kazakhstan, Kyrgyzstan, Laos, Mongolia, Nepal, North Korea, Pakistan, Russia, Tajikistan and Vietnam.

Up to now, there are four municipalities directly under the central government, namely Beijing, Shanghai, Tianjin and Chongqing. See The State Council Information Office and The China International Publishing Group, “Municipalities Directly under the Central Government”, http://​www.​china.​org.​cn/​english/​eng-shuzi2003/​gq/​xzqh1.​htm.

According to the Chinese Constitution, self-government is exercised—under unified national leadership—in areas heavily resided by ethnic minorities. Organs of self-government in these areas administer the right of self-government. In principle, the administrative status of areas where self-government of ethnic autonomy is exercised is decided according to the geographical size and population of the areas (Article 4). Autonomous regions enjoy the same status as provinces (Article 30).

According to the NPC-drawn Hong Kong Basic Law of Special Administrative Region and Macau Basic Law of Special Administrative Region, both Hong Kong and Macau are part of the People’s Republic of China. However, they have a high degree of self-government and have maintained the previous capitalist system and way of life unchanged for 50 years. They enjoy executive, legislative and independent judicial power, including that of final adjudication. Laws drawn by the NPC and its Standing Committee may not be enforced in special administrative regions, except those that concern national defence and foreign affairs and involve national unification and territorial integrity and that do not concern the scope of self-government in special administrative regions. The central and local governments shall not interfere in the affairs of self-government by special administrative regions according to law. In addition, the central government neither collects taxes in Hong Kong and Macau, nor do these regions turn over their revenues.

The Romanized phonetic spelling system created in the 1950s for Mandarin is a way to write Mandarin Chinese with 25 letters in English except “V”.

Those languages spoken by comparatively large minority groups are Tibetan (藏), Uighur (维吾尔), Kazakh (哈萨克), Mongolian (蒙), Korean (朝鲜), Zhuang (壮), Yi (彝), Miao (苗), Buyi (布依), Dong (侗), Hani (哈尼), Bai (白), Dai (傣族), Li (黎) and Yao (瑶))

According to Article 67 of the Chinese Constitution, the Standing Committee of the NPC has the right to enact and amend statutes, to interpret the Constitution and laws, to supervise the enforcement of the Constitution, to supervise the work of other state organs (such as the State Council, the Central Military Commission, the Supreme People’s Court and the Supreme People’s Procuratorate) and to annul those administrative rules and regulations, decisions or orders of the State Council that contravene the Constitution or the statutes of the state. It also has the right to appoint and remove high-ranking officials, such as the ministers in charge of ministries or commissions or the Auditor-General and the Secretary-General of the State Council according to the nomination by the Premier of the State Council, vice-presidents and judges of the Supreme People’s Court and deputy procurators-general and procurators of the Supreme People’s Procuratorate. It is also responsible for other major issues in state affairs, such as deciding on the ratification and abrogation of treaties and important agreements concluded with foreign countries, deciding on the proclamation of a state of war when the state faces armed encroachment and examining and approving partial adjustments to the plan for national economic and social development and to the state budget that prove necessary in the course of their implementation when the NPC is not in session. The Chinese Constitution is available in full text here: http://​en.​npc.​gov.​cn.​cdurl.​cn/​constitution.​html#.

The State Council Information Office, ‘Section IV. The System of Multi-Party Cooperation and Political Consultation” in “China’s Political System”, http://​china.​org.​cn/​features/​political/​2006-11/​08/​content_​1029034.​html.

The National Committee of the CPPCC, ‘The Main Ways in Which the CPPCC Does Its Work”, http://​www.​cppcc.​gov.​cn/​zxww/​2012/​07/​03/​ARTI134130155721​8109.​shtml.

Article 1 of the Chinese Constitution provides that the People’s Republic of China is a socialist state under the people’s democratic dictatorship. In China, based on Article 2 of the Constitution, the National People’s Congress is more than a legislature. It is the organ through which the people exercise state power, while all administrative, judicial and procuratorial organs of the state, according to Article 3, are created by the people’s congresses, to which they are responsible and by which they are supervised.

A brief history of the amendments made to the Chinese Constitution and the process of the 2018 amendment are available in “China’s national legislature adopts constitutional amendment”, http://​www.​chinadaily.​com.​cn/​a/​201803/​11/​WS5aa4e2cba3106e​7dcc140e40.​html. The specific amendments could be referred to The Amendment to the Constitution of the People’s Republic of China (2018), http://​www.​npc.​gov.​cn/​englishnpc/​constitution2019​/​201911/​36a2566d029c4b39​966bd942f82a4305​.​shtml.

Article 62.7 of the Chinese Constitution sets forth that the National People’s Congress is empowered to elect the Chairman of the National Supervisory Commission, and according to Article 63.4 of the Chinese Constitution, the National People’s Congress has the power to remove the Chairman of the National Supervisory Commission. Meanwhile, Article 67.6 of the Chinese Constitution grants the Standing Committee of the National People’s Congress the power to oversee the work of the National Supervisory Commission.

Supervisory powers are very broad, as manifested by Article 15 of the National Supervision Law, which stipulates that supervisory powers will be exercised on civil servants; personnel engaged in public affairs at organizations managing public affairs upon authorization by law or regulation or through lawful entrustment by state organs; managers of state-owned enterprises; personnel engaged in the management of public entities in education, scientific research, culture, health care, and sports, among others; personnel engaged in the management of basic-level self-governing mass organizations; and other personnel who perform public duties in accordance with the law.

Chinese residing overseas often call themselves “Tang Ren” (唐人), or the People of Tang, and the Chinese term for Chinatown bears the dynastic title “Tangrenjie” (唐人街), or The Tang People’s Street.

The World Bank, “China Overview”, http://​www.​worldbank.​org/​en/​country/​china/​overview.

See China’s Economic Outlook in Six Charts, https://​www.​imf.​org/​en/​News/​Articles/​2018/​07/​25/​na072618-chinas-economic-outlook-in-six-charts#:​~:​text=​China%E2%80%99s%20​economy%20​continues%20​to%20​perform%20​strongly%E2%80%94with%20​growth%20​projected,in%20​its%20​latest%20​annual%20​assessment%20​of%20​the%20​economy.

Article 124 of the Constitution; Article 2 and Article 19 of the Organic Law of the People’s Courts.

The Supreme People’s Court of China, “Guardian of Equality and Justice: The Supreme People’s Court of the People’s Republic of China”, pp. 32–33; In addition, the HK Basic Law and Macau Basic Law provide that Hong Kong and Macau have distinct and separate court systems, British and Portuguese based respectively. The basic laws also empower the HK and Macau courts to hold the power of final adjudication.

See The State Council Information Office and The China International Publishing Group, “The National Court Organizations”, http://​english.​gov.​cn/​archive/​china_​abc/​2014/​08/​23/​content_​281474982987258.​htm.

Maritime courts have no jurisdiction over criminal cases. Cases of appeals against the judgments and orders of a maritime court are handled by the Higher People’s Court in the locality where the maritime court is located. The railway transport courts comprise basic and intermediate courts. Cases of appeals against the judgments and orders of a railway transport court are handled by the Higher People’s Court in the locality where the railway transport court is located.

See http://​www.​lawinfochina.​com/​display.​aspx?​id=​18117&​lib=​law.

Hangzhou Internet Court provides a comprehensive online case filing service, boasting of filing a lawsuit in 5 min. See https://​www.​netcourt.​gov.​cn/​portal/​main/​en/​index.​htm.

See the article “The Internet Court has been established for a whole year! Let’s see the innovation under the mode of ‘administrate the internet through internet’” (互联网法院成立一周年啦!看看“以网管网”有哪些创新?). Available at http://​www.​cac.​gov.​cn/​2018-08/​19/​c_​1123290646.​htm.

The establishment of the court is based on the Decision of the Standing Committee of the National People’s Congress on Forming the Shanghai Financial Court (《全国人大常委会关于设立上海金融法院的决定》), coming into force on 28 April 2018. The website of the Shanghai Finance Court is http://​shjrfy.​hshfy.​sh.​cn/​jrfy/​English/​index.​jsp.

Civil Division I of the Supreme People’s Courts hears cases of first and second instance related to marriage and family, labour dispute, unjust enrichment, voluntary service, torts and real estates. Civil Division II hears contract and tort cases arising from corporations; cases on securities, futures, commercial instruments and bankruptcy; and cases on the application for withdrawal of domestic arbitration. Civil Division III is the IPR Division, responsible for hearing first- and second-instance cases of copyright, trademarks, patents, scientific and technological achievements and new plant varieties and cases of technological contracts and unfair competition. Civil Division IV hears maritime cases and cases involving parties from foreign countries or from Hong Kong, Macau and Taiwan.

The research department of the Supreme People’s Court assumes the responsibility of drafting judicial interpretations; takes part in legislative activities; solicits and analyzes opinions on drafts of laws, regulations and rules; and produces judicial statistics.

Report on the Work of the Supreme People’s Court of 2021 (Digest Version) (《最高人民法院工作报告(摘要)》). Available at http://​lianghui.​people.​com.​cn/​2022npc/​n1/​2022/​0309/​c441810-32370218.​html. By comparison, the number of accepted and heard cases and concluded cases in 2015 were 15,985 and 14,135, respectively. See the Report on the Work of the Supreme People’s Court of 2016 (Law Press 2016), p. 50.

In 2014, the Chinese legislature passed the Supreme People’s Court’s Pilot Plan for Establishing Circuit Courts (《最高人民法院设立巡回法庭试点方案》) and the Pilot Plan for Establishing Trans-regional People’s Courts and People’s Procuratorates (和《设立跨行政区划人民法院、人民检察院试点方案》) on the Seventh Session of the National Development and Reform Commission of the Communist Party of China Central Committee (中共中央全面深化改革领导小组第七次会议). It also recommended the implementation of the Plans according to relevant approval procedures after further modification. It is a remarkable step towards the separation of the judiciary and the administrative powers.

“China to explore establishing trans-regional courts procuratorates”, http://​www.​chinadaily.​com.​cn/​china/​2014-10/​28/​content_​18817423.​htm.

Article 135 of the Civil Procedure of the PRC provided that a people’s court could, as needed, try civil cases in a circuit manner and on the spot. The circuit court functioned as an outpost tribunal of the people’s court. It aimed at facilitating the litigants to get access to justice in places where the traffic condition was poor. Instead of letting the litigants appear in the regular forum, the circuit court would travel to and hold the trial at a venue easy for the litigants and the audience to reach. The circuits would be itinerant regularly or randomly based on the caseloads.

On 28 January 2015, the same date as the first circuit court was inaugurated in Shenzheng, the Supreme People’s Court issued a judicial interpretation titled Regulation About the Trial of Circuit Courts (《最高人民法院关于巡回法庭审理案件若干问题的规定》). The regulation contains the establishment place of the circuit courts, the circuit area, their institutional nature, the scope of their accepted cases, and the procedures for the submission of materials by litigants, among other matters. According to the interpretation, the jurisdiction of the first circuit court in Shenzhen covers the three provinces of Guangdong, Guangxi and Hainan, and the second circuit court in Shenyang covers Liaoning, Jilin and Heilongjiang. The original jurisdiction of the circuit courts includes civil, commercial and administrative cases with national significance. They also hear appeals of civil, commercial and administrative cases from provincial-level higher courts and review cases appealed from the higher courts through the adjudicative supervision procedure. With regard to criminal cases, they review cases appealed to them through the adjudicative supervision procedure within their jurisdiction.

Report on the Work of the Supreme People’s Court of 2016, p. 67.

The Supreme People’s Court, The Judicial Reforms of Chinese Courts (2013–2018) (中国法院的司法改革(2013–2018)) (People’s Courts Press 2019), p.15.

Article 178 of the Criminal Procedure Law sets forth that trials of first-instance cases in the Higher People’s Courts or the Supreme People’s Court shall be conducted by a collegial panel composed of three to seven judges or of judges and people’s assessors totaling three to seven.

Both the Civil Procedure Law (Article 167) and the Criminal Procedure Law (Article 222) provide that “the people’s court of second instance shall review the facts and application of law in relation to the claims in appeal”. Article 67 of the Civil Procedure Law and Article 52 of the Criminal Procedure Law also grant the court the authority to investigate and collect evidence from the relevant entities and individuals, and the relevant entities and individuals shall not refuse such investigation and collection of evidence.

Article 12 of the Civil Procedure Law sets forth that “when a people’s court tries a civil case, the parties shall have the right to debate”. The Criminal Procedure has no such articulate provision, but its Article 193 provides that in the trial of first instance “in a court session, any fact or evidence related to conviction or sentencing shall be investigated and debated”. For the case of the second instance, Article 223 prescribes that “where a people’s court of second instance decides not to hold a court session to hear a case, it shall arraign the defendant and hear the opinions of other parties, defenders, and litigation representatives. A people’s court of second instance may hold a court session to hear an appellate case at the place of occurrence of the case or the place where the original trial court is located”.

As for civil cases, Articles 17 and 18 of the Civil Procedure Law set forth that the Intermediate People’s Courts shall exert original jurisdiction over important foreign-country-party-involved cases, cases that have a major impact within their respective jurisdictions or cases that are under the jurisdiction of the Intermediate People’s Courts, as determined by the Supreme People’s Court. Similarly, Higher People’s Courts can hear first-instance cases of major impact within their jurisdiction. If a case has nationwide significance, the Supreme People’s Court shall be the trial court. In addition, the Supreme People’s Court can hear any case as the first-instance court once it deems it necessary. The Intermediate People’s Courts, the Higher People’s Court and the Supreme People’s Court also have original jurisdiction over criminal cases. Article 20 of the Criminal Procedure Law empowers the Intermediate People’s Court to hear cases of first instance concerning national security or terrorist activities or cases with a punishment of up to life imprisonment or death penalty. According to Articles 21 and 22, a Higher People’s Court and the Supreme People’s Court shall have original jurisdiction upon cases respectively significant in their jurisdiction and significant nationally.

Report on the Work of The Supreme People’s Court of 2021 (Digest Version) (《最高人民法院工作报告(摘要)》). Available at http://​lianghui.​people.​com.​cn/​2022npc/​n1/​2022/​0309/​c441810-32370218.​html.

To correct the irregular practices in the procedures regarding the retrial of remanded cases, the Civil Procedure Law was amended in 2012 to revise and improve the procedure for the retrial of such cases. The new provisions clearly state that after the trial court makes its ruling in the retrial of a remanded case, if the litigant makes an appeal, the people’s court of second instance shall not send the case back for a retrial (Article 170.4).

According to Chapter 4 of the Criminal Procedure Law (Procedure for Review of Death Sentences), a death sentence must always be reviewed by a Higher People’s Court and approved by the Supreme People’s Court. In addition, if an Intermediate People’s Court has sentenced a defendant to death but at the same time has imposed a 2-year suspension of the execution (死刑缓期两年执行), a Higher People’s Court must approve the suspension. Ultimately, collegial panels of three judges at the Higher People’s Court or the Supreme People’s Court will review death sentences or suspensions. After its review, the Supreme People’s Court will issue a ruling either approving or rejecting the death sentence. If it rejects the sentence, the court may remand the case or revise the sentence itself. Article 240 of the Criminal Procedure Law requires the Supreme People’s Court to speak with the defendant during its review of his or her death sentence. The defence lawyer may also speak with the court if he or she so requests. The Supreme People’s Procuratorate can also choose to submit an opinion on the sentence.

Article 200 of the Civil Procedure Law sets forth the detailed reasons for the litigant to file a petition for retrial: new evidence is found which suffices to overturn the original judgment or ruling; basic facts are missed to support the original judgment; the primary evidence admitted in the original judgment was forged or was not cross-examined; the people’s court failed to investigate and gather the primary evidence necessary for the trial, which a party is unable to gather and has applied in writing for the court to do; the original judgment has incorrectly applied the law; the collegial panel was not legally composed or any judge disqualified in accordance with law failed to be disqualified; a party’s right to debate was illegally denied; a party, if as a person without competency, had no legal representative representing him in the litigation or a party failed to appear in the trial where he should be present, due to reasons not attributable to the fault of the party or the legal representative; a default judgment is entered against a party which has not been subpoenaed; the original judgment or ruling omitted claims or exceeded the claims of the parties; the legal instrument on which the original judgment is based has been revoked or modified; the judge making the original judgment was found not impartial due to corruption in the hearing.

Some scholars refer to it as an “adjudication committee”. See Chng and Dowdle (2014). See also Cohen (1997), in which the author labels the highest judicial organ as the “adjudication committee”.

Curiously enough, the Criminal Procedure Law is the only law out of the three procedure laws (criminal procedure, civil procedure and administrative procedure) that outlines the basic mode by which judicial committees operate by providing that “with respect to a difficult, complex, and major case, regarding which the collegial panel considers it difficult to make a decision, the collegial panel shall refer the case to the president of the court, for him to decide whether to submit the case to the judicial committee for discussion and decision. The collegial panel shall implement the decision of the judicial committee”.

The procuratorate system consists of a four-tier hierarchy of court structure from the top down: the Supreme People’s Procuratorate, the Higher People’s Procuratorate, the Intermediate People’s Procuratorate, and the Basic People’s Procuratorate. Article 130 of the Constitution provides that the PRC establishes the Supreme People’s Procuratorate, local people’s procuratorate at various levels, the military procuratorate and other special people’s procuratorates.

Article 129 of the Constitution and Article 1 of the Organic Law of the People’s Procuratorates stipulate that “the people’s procuratorates of the People’s Republic of China are state organs for legal supervision”. This means that, in addition to the function performed similarly in most countries, like deciding which cases will be prosecuted, the procuratorates oversee investigations and trials and supervises the legal activities of the people’s courts, the execution of judgments and the activities of prisons. In 2013, the procuratorates protested against 6345 criminal cases that were deemed wrong cases and corrected 42,873 cases of unlawful execution of punishments. In terms of legal supervision of civil and administrative actions, they protested against 15,538 effective judgments and mediation documents or procuratorial suggestions for retrial, 18,398 procuratorial suggestions for law violations in trials and 41,069 suggestions for law violations in the enforcement of civil cases. See China Law Society (2014), pp. 112–114.

Jingwen (2015), pp. 105–106.

See China Law Society (2012), p. 107; China Law Society (2014).

Jingwen (2015), pp. 105 and 109.

Figure 24-16, First Trial Civil Cases Accepted and Settled by People’s Courts (2020), in China Statistical Yearbook – 2021. Available at http://​www.​stats.​gov.​cn/​tjsj/​ndsj/​2021/​html/​E24-16.​jpg.

China Law Society (2014).

The relationship between Li and law or punishment in Ancient China can be characterized by “what will be excluded by Li will be punished by the penal law. Li and law then interact”, see Biography of Chen Chong of The Book of Han (“礼之所去，刑之所取，失礼则入刑，相为表里也”。《汉书·陈宠传》).

The first actual reference to a code is to one supposedly compiled in the fourth century BC by a certain Li K’uei (李悝), who was considered the founding father of legalism. It is stated that Li, who was the tutor of Marquis Wen of Wei (魏文公, reigned in 427–387 BC during the Warring States Period), brought together the laws of all the states existing at that time and formed them into a code, the Canon of Laws (fajing, 法经). See Johnson (1979), p. 7. To be specific, Li’s code has six parts, namely 盗(containing rules on crimes against property), 贼(containing rules on crimes against personal rights), 囚(containing rules on adjudication and imprisonment), 捕(containing rules on arrest), 杂(containing miscellaneous rules on the punishment of crimes that could not be classified in any of the categories listed), and 具(containing rules to punish severely or leniently).

See Jones (2003), p. 8.

For example, for the item “improper act”, it was annotated in “Za Lü” (杂律, miscellaneous rules) that it referred to “those acts that are not prohibited by the legal provisions, but still should not be done according to the principles of ‘Li’ (rites)” (《唐律疏议·杂律》“不应得为”条(总第450条):诸不应得为而为之者……谓律、令无条，理不可为者).

《大清律例•刑律•骂詈》(总第329条):“凡骂祖父母、父母及妻妾骂夫之祖父母、父母者，并绞。”. See Staunton (1966), p. 357.

See Jones (2003), p. 12.

In the decade-long law amendment movement in the late Qing Dynasty, China for the first time established a civil law code system like that of Japan. The late Qing borrowed legislation from Japan in such areas as constitutional law, civil law, criminal law, commerce law, and bankruptcy law. On 27 August 1908, the late Qing enacted the first constitutional document in Chinese history—the Outline of the Imperial Constitution (钦定宪法大纲). This was a copy of the Japanese Constitution, generally speaking. Other important laws include the Organization Law for Central Judicial Office (大理院审判编制法), the Criminal Code of Qing (大清新刑律), the Draft of Civil Code of Qing (大民律草案), the Draft of Criminal Procedure Law (刑事民事诉讼法草案) and the Draft of Civil Procedure Law (民事诉讼法草案). These achievements laid down, for the first time in China, the principle of judicial independence, the separation of civil law from criminal law and the creation of the procuratorate. A law school, a new system of courts and a Ministry of Justice were also established. The reform of Qing dynasty’s legal system finally failed, because it was based on pragmatic considerations—to rescue the Qing Dynasty from the crisis and difficulties under the disguise of taking back the judicial sovereignty, rather than to follow some kind of universally applicable general principles. But the step of modernizing the Chinese legal system under the civil law system has not even been stopped since then.

The main legal system of the Nationalist Republic of China then was referred to as the Six Law Pandects (六法全书), including the constitution, civil law, criminal law, civil procedure, criminal procedure and administrative procedure. It consisted of codes (such as the civil code, criminal code, civil procedure code and criminal procedure code, but the administrative procedure was not codified) and also of special laws in the above-mentioned six areas of law.

The English version of the Civil Code of People’s Republic of China is available on http://​www.​npc.​gov.​cn/​englishnpc/​c23934/​202012/​f627aa3a4651475d​b936899d69419d1e​/​files/​47c16489e186437e​ab3244495cb47d66​.​pdf. More detailed analysis on the Code can be found in Wu and Swadling (2021), Jiang (2021), and Crea and Diliberto (2021).

See “China may initiate codification of environmental, education laws” http://​www.​xinhuanet.​com/​english/​2021-04/​22/​c_​139896890.​htm.

They are Shenzhen (深圳), Zhuhai (珠海) and Shantou (汕头) of Guandong Province (广东省) and Xiamen (厦门) of Fujian Province (福建省). All of them are port cities located on the southeast coast of China. Shenzhen and Zhuhai border Hong Kong SAR and Macau SAR, respectively.

Zimmerman (2005), pp. 65–66.

Their authority to interpret laws and regulations is derived from the Resolution of the Standing Committee of the National People’s Congress Providing an Improved Interpretation of the Law (《全国人民代表大会常务委员会关于加强法律解释工作的决议》), issued on 10 June 1981. Its Article 2 sets forth that the Supreme People’s Court shall make interpretations of application of laws and decrees in court trials, so as the Supreme People’s Procuratorate does in the procuratorial work. If their interpretations are conflicting, they shall be submitted to the Standing Committee of the NPC for a final decision. Article 33 of the Organic Law of Courts provides that the Supreme People’s Court gives interpretations on questions concerning the specific application of laws and decrees in judicial proceedings. On 18 January 2012, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued a Notice on Prohibiting Local People’s Courts and People’s Procuratorates from Formulating Documents of a Nature of Judicial Interpretation (《最高人民法院、最高人民检察院关于地方人民法院、人民检察院不得制定司法解释性质文件的通知》), strengthening and clarifying their exclusive power to make judicial interpretations.

Provisions of the Supreme People’s Court on the Judicial Interpretation Work (2021 Amendment) (《最高人民法院关于司法解释工作的规定(2021修正)》). Article 6 of the Provision is amended to incorporate “the rule” as a new type of judicial interpretation into the existing system.

For example, the General Principles of the Civil Law has 156 articles while its judicial interpretation—Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law (《最高人民法院关于贯彻执行《中华人民共和国民法通则》若干问题的意见》)—has 200 articles. The article numbers of the Civil Procedure Law (modified in 2012) and its judicial interpretation—Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law, issued 30 January 2015 (《最高人民法院关于适用<中华人民共和国民事诉讼法>的解释》)—are respectively 284 and 552.

See Wang (2006), p. 3.

See Article 2 of The Work Rule of the Supreme People’s Court on Issuing the Case Guidance (《关于案例指导工作的规定》), issued by the Supreme People’s Court on 26 November 2010.

See The Supreme People’s Court issued the 32nd Batches of Guiding Cases (最高人民法院发布第32批指导性案例). Available at https://​www.​court.​gov.​cn/​zixun-xiangqing-364701.​html. All the guiding cases and the notice of issuing a newly issued batch of guiding cases can be found at http://​www.​court.​gov.​cn/​shenpan-gengduo-77.​html. In sum, among the 185 guiding cases, 131 are civil cases, 26 are criminal cases and 28 are administrative and state compensation cases.

Article 7 of The Work Rule of Supreme People’s Court on Issuing the Case Guidance.

Detailed Rules for the Implementation of the Provisions of the Supreme People’s Court Concerning Work on Case Guidance(《最高人民法院关于案例指导工作的规定实施细则》), issued by the Judicial Committee of the Supreme People’s Court on 13 May 2015. See http://​www.​lawinfochina.​com/​display.​aspx?​id=​19290&​lib=​law.

Jia (2016), p. 2224.

A guiding case is composed of keywords, the key points of the judgment, the statutory provisions involved, the basic facts, the judgment and reasoning. Each case of the first batch of four guiding cases issued on 20 December 2011 has an average length of about 1200 Chinese characters (about 900 English words), while the average length of cases in the latest 32nd batch of guiding cases is about 2200 Chinese characters (about 1500 English words).

The Supreme People’s Court articulates principally in Title II—“Effectively using guiding cases”—of the Notice of the Supreme People’s Court on Issuing the First Set of Guiding Cases (《最高人民法院关于发布第一批指导性案例的通知》) on 20 December 2011 that courts at all levels shall thoroughly and accurately understand the spirit and significance of guiding cases, strengthen the consciousness of using guiding cases and properly hear similar cases in light of advanced judicial concepts so as to further improve the quality and efficiency of case handling, ensure the unity of the legal and social effects of adjudication and guarantee social stability and harmony.

See Notice of the Supreme People’s Procuratorate on Issuing the Opinions of the Supreme People’s Procuratorate on Strengthening the Reasoning of Prosecutorial Legal Documents (for Trial Implementation) (《最高人民检察院关于印发<最高人民检察院关于加强检察法律文书说理工作的意见(试行)>的通知》), issued on 9 August 2009.

See http://​www.​chinalawindex.​cn/​.

However, in the Civil Code of the Republic of China, customs earned the status of a source of law. It is stipulated thereunder that if there is no applicable act for a civil case, the case should be decided according to customs. If there is no such custom, the case should be decided according to jurisprudence.

The General Principles of the Civil Law (《民法通则》) was passed by the National People’s Congress on 12 April 1986 and entered into force on 1 January 1987. It serves as the foundation for civil acts and regulates fundamental issues of civil law, such as civil rights, civil liability, legal persons, natural persons, limitations, agency, guardianship, etc. The full version can be found at http://​www.​wipo.​int/​wipolex/​zh/​text.​jsp?​file_​id=​182628.

Article 22 of the Contract Law.

Article 251 of the Criminal Law.

For example, Article 14 of the Law on the Protection of Consumer Rights and Interests provides that in purchasing and using commodities or receiving services, consumers shall be entitled to human dignity, respect for their ethnic mores and customs, and legal protection of personal information.

Notice of the Supreme People’s Court on Issuing Some Advice on Implementing the Criminal Policy of Combining Leniency with Rigidity (《最高人民法院印发<关于贯彻宽严相济刑事政策的若干意见>的通知》), issued on 20 August 2010. To facilitate the implementation of the policy, the Supreme People’s Court then issued the Three Model Cases on People’s Courts’ Implementation of the Criminal Policy of Combining Punishment with Leniency Published by the Supreme People’s Court (《最高人民法院发布三起人民法院贯彻宽严相济刑事政策典型案例》) in February 2013.

Article 3 of the Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties.

Article 142 of the General Principles of the Civil Law and Article 235 of the Civil Procedure Law.

Article 45 of the Legislation Law, enacted on 1 July 2000 and amended on 15 March 2015.

The search engine for Chinese sources of law—http://​www.​pkulaw.​cn—reveals that the Standing Committee of the National People’s Congress only produced 24 legal interpretations from 1995 to 2014. By contrast, in 2013, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued nine judicial interpretations. The former also issued 19 judicial interpretations independently and the latter issued 4 judicial interpretations. See China Law Society (2014), p. 116.

Interpretation of the Standing Committee of the National People’s Congress on Paragraph 1 of Article 99 of the General Principles of the Civil Law and Article 22 of the Marriage Law of the People’s Republic of China (《全国人民代表大会常务委员会关于<中华人民共和国民法通则>第九十九条第一款、<中华人民共和国婚姻法>第二十二条的解释), issued on 1 November 2014.

In theory, Chinese judges do not have the power to “interpret” the statutes, for the statutory interpretation should be carried out in ways of legislative interpretation exercised by the Standing Committee of the National People’s Congress (Article 67 of Chinese Constitution and Article 42 of the Legislation Law), or the statute-like judicial interpretation. Neither the Constitution nor the Legislation Law nor the Judge Law expressly grants judges the power to interpret the statutes. However, in practice, it is inevitable for judges to clarify the meaning of a statutory language in the case of ambiguity or vagueness, especially in applying general principles like good faith, fairness, etc.

Article 4 of the General Principles of the Civil Law stipulates that in civil activities, the principles of voluntariness, fairness, making compensation for equal value, and good faith shall be observed. The principle of good faith can also be found in Article 6 of the Contract Law and Article 13 of the Civil Procedure Law.

Guiding Case No. 45 of Beijing Baidu Netcom Science and Technology Co., Ltd. v. Tsingtao Osun Network Technique Co., Ltd. et al. (北京百度网讯科技有限公司诉青岛奥商网络技术有限公司等不正当竞争纠纷案) in Notice of the Supreme People’s Court on Issuing the Tenth Group of Guiding Cases (《最高人民法院关于发布第十批指导性案例的通知》), issued on 15 April 2015.

Guiding Case No. 30 of Lan Jianjun and Hangzhou SUREMOOV Auto Maintenance and Repair Technology Co., Ltd. v. Tianjin SUREMOOV Auto Maintenance and Repair Service Co., Ltd. et al. (指导案例30号:兰建军、杭州小拇指汽车维修科技股份有限公司诉天津市小拇指汽车维修服务有限公司等侵害商标权及不正当竞争纠纷案) in Notice of the Supreme People’s Court on Issuing the Seventh Group of Guiding Cases (《最高人民法院关于发布第七批指导性案例的通知》), issued on 26 June 2014.

Guiding Case No. 15 of Xuzhou Construction Machinery Group Co., Ltd. v. Chengdu Chuanjiao Industry and Trade Co., Ltd., et al. (Sales contract dispute) (指导案例15号:徐工集团工程机械股份有限公司诉成都川交工贸有限责任公司等买卖合同纠纷案) in Notice of the Supreme People’s Court on Issuing the Forth Group of Guiding Cases (《最高人民法院关于发布第四批指导性案例的通知》), issued on 31 January 2013.

Chow (2003), p. 204. But other scholars have observed from the practice of Chinese courts that judicial discretion is extensive. See Weidong (2013).

Qin (2011).

For instance, Article 4 of the General Principles of the Civil Law stipulates that civil activities should abide by the principles of voluntariness, fairness, making compensation for equal value, honesty and credibility. In addition, Article 6 of the same law requires the observation of the public interests.

An old Chinese saying goes: a day together as husband and wife means endless devotion the rest of your life (一日夫妻). It will help to understand the Chinese Style Divorce (中国式离婚). Anyway, every culture advocates the idea of equity, but its meaning and contents could be at least slightly different in different cultural background.

In ancient China, the study of law was called “律学” (Science of Code). It focused on the analysis of statutory provisions, the application of penalties and the relation between Li (rite) and punishment. Legal skills were predominantly taught in private schools through apprenticeship. However, in some dynasties, the central government established specific positions—律博士 (Doctor of Law or Code) or institutions—律学馆 (Institution for Science of Code) to conduct “legal education”. Doctors of Law numbered from two to a dozen in different dynasties.

Prof. W. W. Blume from the University of Michigan Law School served as the second Dean of the Soochow University Law School (东吴大学法学院) in the early twentieth century. In an address delivered at the third annual meeting of the International Bar Association in 1923, he said that “one of the first institutions in China undertaking to teach modern law was the Pei-yang University at Tientsin (天津北洋大学). Law subjects were placed in the curriculum as early as 1895, and on the reorganization of the school in 1905 a department of law was provided for. It was not until 1915 or 1916, however, that the department was built up to the standards of a modern law school”. See Chan (1936–1937).

Ibid.

They develop from the college of political science and law. Beijing College of Political Science and Law is now China University of Political Science and Law, Southwest is Southwest University of Political Science and Law, East China is East China University of Political Science and Law, Central Southern China is Zhongnan University of Economics and Law and Northwest is Northeast University of Political Science and Law East China.

The structure of the legal education institutions changed hugely in the new era: the number of law colleges has not increased, but the law schools under the comprehensive universities have boomed from a dozen to around 600.

In recent years, students with an LL.B. degree can also apply for the JM programme. But they will pursue the JM degree in 2 years. By contrast, the non-law undergraduates will get the JM degree in 3 years.

Peking University, Tsinghua University, Renmin University of China, Wuhan University, Zhongnan University of Economics and Law, East China University of Political Science and Law, and Fudan University.

The Law school curriculum requires students to spend a 2- or 3-month internship (shixi, 实习) period in a judicial office or law firm. Most law schools implement it during the student’s last semester of the 4-year LL.B programme (when they are particularly anxious about their graduate theses and prospects for finding a job) and set no clear standards for how the internships should be conducted. Hence, the 2- or 3-month internship period often becomes a mere break for the students from their ordinarily frenzied class schedules. Participating in the clinics will exempt students from the internship.

From 2008, fourth-year undergraduates can also apply for the bar exam. See Notice of Ministry of Justice on Issues Concerning the 2008 National Bar Exam (《司法部关于2008年国家司法考试有关事项的公告》), http://​www.​gov.​cn/​govweb/​fwxx/​wy/​2008-06/​06/​content_​1007821.​htm.

See Article 9 of Implementation Measures for the National Uniform Legal Profession Qualification Examination (《国家统一法律职业资格考试实施办法》), http://​www.​moj.​gov.​cn/​pub/​sfbgw/​jgsz/​jgszzsdw/​zsdwgjsfkszx/​gjsfkszcfg/​202106/​t20210622_​428245.​html.

The national uniform legal profession qualification examination is held once a year and is divided into two parts, including objective questions (in the form of multiple choice) and subjective questions (in the form of essays, case analysis and legal document drafting), to comprehensively examine the political competence, professional ability and professional ethics that the examinees should have for legal practice. Usually, the objective question test is held every September and the subject question test every December. The examination covers broad areas of laws, including legal history, jurisprudence, constitutional law, administrative law and administrative procedure, criminal law, criminal procedure, civil law, commercial law and civil procedure, international law, etc.

See 2021年度律师、基层法律服务工作统计分析, http://​www.​moj.​gov.​cn/​pub/​sfbgw/​zwxxgk/​fdzdgknr/​fdzdgknrtjxx/​202208/​t20220815_​461680.​html.

Article 12 of the Lawyer’s Law stipulates that the faculty at the law school or law researcher in the social science academy, if passing the bar exam, can work as a part-time lawyer, with the consent of their employer.

China also introduced certain common law rules into its legal system. For example, even though the Contract Law is mainly patterned after civil law provisions, the doctrine of anticipatory breach of contract (Article 108) and the doctrine of undisclosed agency are borrowed from the common law. The Contract Law also adopts some rules from the CISG. See Liming (2013).

In 2008, China published the White Book on Rule of Law titled Promoting the Rule of Law in China (《中国的法治建设》), claiming that China has built legislation and the legal system with Chinese characteristics. It points out that the legal system of China accords with the principle of universality for the development of human political civilization and conforms to the basic conditions of the primary stage of socialism in China. It is in line with the basic tasks of socialism and has distinctive Chinese characteristics. The essence of this legal system is to put people first, reflect the common will of the people and guarantee the fundamental interests of the people. It is in line with the economic development and social progress of China and provides legal safeguards for the scientific, harmonious and peaceful development of the country. China’s socialist legal system with Chinese characteristics is open and developing. As China is at the stage of social transformation, its legal system is still being carried out and is forward-looking. It will continue to promulgate new laws and revise present ones so as to develop and improve the legal system. See “White Book on Rule of Law titled Promoting the Rule of Law in China”.

See Decision of the CPC Central Committee on Major Issues Pertaining to Comprehensively Promoting the Rule of Law (中共中央关于全面推进依法治国若干重大问题的决定), http://​www.​gov.​cn/​zhengce/​2014-10/​28/​content_​2771946.​htm.