Chinese Constitutional & Administrative Law

Prof. Zhengxin （ Charlie ） HUO

May 2015

List of Abbreviations: CPC: Communist Party of China PRC: People’s Republic of China ROC: Republic of China CPPCC: Chinese People’s Political Consultative

Conference NPC: National People’s Congress CMC: Central Military Commission SPC : Supreme People’s Court SPP: Supreme People’s procuratorate

Table of Contents Chapter One

An Overview of the Constitutional Law in China Chapter Two

Form of Government: The People’s Congress System Chapter Three

Structure and Operation of Administrative Authorities Chapter Four

The Relationship between Central and Local Governments Chapter Five

The Judicial Institution in China Chapter Six

A Brief Introduction to Chinese Administrative Law

Chapter One An Overview of the Constitutional Law in China

1.1 A Brief History of Chinese Constitution

1.1.1 Development before 1949

Constitutionalism in modern China dates back to the late 19th century when a written Constitution was perceived as a tool to save the late Qing Dynasty.

In 1911, the Qing Dynasty enacted the first written constitution in China.

On February 12, 1912, Republic of China was established, and Dr. Sun Yat-sen, the interim President, promulgated the Interim Constitution after it was approved by the Senate.

1.2.2 Development after 1949

(1) The Common Program of the CPPCC of 1949 This document is defined as the Interim Constitution of

P.R.C which did not incorporate socialism.

(2) The Constitution of 1954 Its most important function was to legitimize the

political target of socialist transformation.

(3) The Constitution of 1975 Its objective was to consolidate the so-called “the great

achievements of the Cultural Revolution”.

(4) The Constitution of 1978 Its purpose was to bring the state back on normal track.

(5) The Constitution of 1982

1.2 Fundamental Principles of Chinese Constitutional Law

1.2.1 Introduction There are two general categories of such

fundamental constitutional principles in China. 1.2.2 Four Cardinal Principles(i) to keep to the socialist road, (ii) to uphold the people’s democratic dictatorship, (iii) leadership by the Communist Party, (iv) Marxism-Leninism, Mao Zedong Thought,

Deng Xiaoping Theory, and the important thought of Three Represents.

1.2.2.1 The Principle of Leadership by the Communist Party

1.2.2.2 The Principle of Marxism-Leninism and Mao Zedong Thought, Deng Xiaoping Theory and the Important Thought of Three Represents

1.2.2.3 The Principle of People’s Democratic Dictatorship

1.2.2.4 Principle of Adherence to Socialism

1.2.3 Other Fundamental Principles of Chinese Constitutional Law

1.2.3.1 Sovereignty of the People

2.3.2 Rule of Law Principle

2.3.3 Equality of All Nationalities

2.3.4 Protection of Basic Human Rights

Chapter Two Form of Government:

The People’s Congress System

2.1 Introduction

2.2 The Difference between the People’s Congress system and the Parliamentary System

2.3. The Organizational Structure of the people’s Congress

2.3.1 The National People’s Congress NPC is the supreme organ of state power in

China. A total of 2,987 deputies were elected to the current 12th NPC before it convened its first session in March 2013.

2.3.2 Local People’s Congress Local people’s congresses at various levels are

local organs of state power.

2.4 The Functions of People’s Congress

2.4.1 Legislative Power

2.4.1.1 National Legislatures

First, the NPC has the power to amend the Constitution.

Second, The NPC has the authority to enact and amend basic laws pertaining to criminal offences, civil affairs, state organs and other matters.

Third, The Standing Committee enacts and amends all laws except laws that should be enacted and amended by the NPC. When the NPC is not in session, its Standing Committee may partially supplement and amend laws it enacted, provided that the changes do not contravene the laws’ basic principles.

2.4.1.2 The Distribution of Central and Local

Legislative Authorities

“the non-contradiction principle”

2.4.2 Power of Appointment and Removal

2.4.3 Decision Making Authority

2.4.4 Supervision Authority

Chapter Three: Structure and Operation of Administrative Authorities

3.1 Introduction

(1) The President of the PRC, (2) The State Council, (3) The Central Military

Commission （ CMC ） , (4) The Supreme People's Court (SPC), (5) The Supreme People's Procuratorate (SPP).

3.2 The Head of State – President of the PRC

3.2.1 The Office of President under the 1982 Constitution

i. The Requirements ii. The Authorities

3.3 The Central Military Commission

3.4.1 The Legal Status of the State Council

3.4.2 Organization within the State Council

3.5 Authorities of the State Council

3.5.1 Legislative Authority

5.5.2 Other Authorities Administrative Leadership Authority; Administrative Supervision Authority; Personnel Arrangement Authority.

3.4 The State Council

Chapter Four The Relationship between

Central and Local Governments

4.1 Introduction 4.2 Varieties of Local Governments in China (i) Provinces (22), (ii.) Municipalities directly under the leadership

of the CPG(4); (iii) Ethnic minority autonomous regions (5); (iv) Special administrative regions (2); (v) Taiwan

22 Provinces: A standard provincial government is nominally led by a provincial CPC committee, headed by a CPC committee secretary. The committee secretary is first-in-charge of the province, come in second is the governor of the provincial government.

5 Autonomous regions: A minority subject which has a higher population of a particular minority ethnic group along with its own local government, but an autonomous region theoretically has more legislative rights than in actual practice. The governor of the Autonomous Regions is usually appointed from the respective minority ethnic group.

4 Municipalities: A higher level of city which is directly under the Chinese government, with status equal to that of the provinces. In practice, their political status are higher than common provinces.

2 Special administrative regions (SARs): A highly autonomous and self-governing subnational subject of the People's Republic of China. Each SAR has a provincial levelchief executive as head of the region and head of government. The SAR's government is not fully independent, as foreign policy and military defence are the responsibility of the central government, according to the Basic Laws of the two SARs.

1 Claimed province: The People's Republic of China claims the island of Taiwan and its surrounding islands. The territory is controlled by the Republic of China (ROC, commonly called "Taiwan").

4.3 The Development of Central-Local Relationship in China

4.3.1 The Period from 1949-1954 4.3.2 The Period from 1954-1978 4.3.3 The Period from 1978-present

4.4 Examination of the Three Kinds of Central-Local Relationships

4.4.1 Relationship between the Central Government and Ordinary Provinces and Municipalities

That stage has been described as the stage of division of powers between the central government and local governments through administrative means.

4.4.2 The Relationship between the Central Government and the Five Ethnic Minority

Autonomous Regions Law of PRC on Regional National Autonomy （ 198

4） First, on the principle of not contravening the

Constitution and the laws, the organs of self-government of national autonomous areas shall have the power to adopt special policies and flexible measures in the light of local conditions to speed up the economic and cultural development of these areas.

Second, the organs of self-government of national autonomous areas shall guarantee the freedom of the nationalities in these areas to use and develop their own spoken and written languages and their freedom to preserve or reform their own folkways and customs.

Third, The organs of self-government of national autonomous areas shall guarantee the freedom of religious belief to citizens of the various nationalities.

Fourth, they enjoy autonomous authority in the administration of local finance.

Fifth, if a resolution, decision, order or instruction of a state organ at a higher level does not suit the conditions in a national autonomous area, the organ of self-government of the area may either implement it with certain alterations or cease implementing it after reporting to and receiving the approval of the state organ at a higher level.

In practice, the five regions receive a more advantageous status in economic field, while in political and legal areas, they are also controlled tightly by the Central Government.

4.4.3 Relationship between the Central Government and the SARs

Pursuant to the two basic laws, the two SARS really enjoy a high degree of autonomy in almost every area except two: foreign affairs and national defence.

Chapter Five The Judicial Institution in China

5.1 The Legal Status of the People’s Courts and People’s Procuratorates

5.2 The People’s Courts

5.2.1 The Fundamentals of China's Judicial System

5.2.1.1 Open Trials 5.2.1.2. Defense System 5.2.1.3. Second Instance Being Final 5.2.1.4. System of Collegial Panels 5.2.1.5. System for Verification of Death Penalty

Cases

5.3 The People’s Procuratorate

5.3.1 The Status and Nature of the People’s Procuratorate

The People’s Procuratorates are the State's organs for legal supervision that exercise the power of prosecution.

5.3.2 Functions of Procuratorates5.3.2.1 Investigation Function (1) crimes of embezzlement and bribery; (2) crimes of dereliction of duty; (3) crimes in violation of citizens’ personal and

democratic rights.

5.3.2.2 Prosecution Function In comparison with the function of investigation,

prosecution is the main function of people’s procuratorates.

5.3.2.3 Supervision Function

5.3.2.4 The Limits of People’s Procuratorate

Chapter Six A Brief Introduction to Chinese Administrative Law

6.1 What is Administrative Law? Administrative law is a separate area of law

that deals with government bodies engaging in administration, that is, public work and management and the provision of public services.

6.2 Major Chinese Administrative Laws (1) Administrative Litigation Law (1990) For the first time in the history of China, the citizen is

given the right to sue the government if his/her legal interest is harmed by a narrowly defined category of official actions.

(2) Administrative Reconsideration Law(1999) It provides an alternative remedy for the private party to

challenge the government, by asking a government of a higher level to re-considerate the administrative act by a lower-level government.

(3) State Compensation Law(1994, revised in 2010) It provides a more systematic framework for citizens

obtaining compensation for harms and injuries suffered from the administrative activities or criminal investigation.

Concluding Remarks The past three decades have witnessed an amazing

acceleration in the rate of, and significant progress in the quality of, legislation in China.

Nevertheless, there is a long way to go towards accomplishing the task of building a modern legal system.

Thanks!