The law reform efforts in China have been a work in progress since the establishment of the People’s Republic of China (P.R.C.) in 1949. The main objective of such reforms is to legalise administration which means adopting laws and regulations as the principal means for declaring and executing policy. This is a considerable shift in the approach of the Chinese Communist Party (C.C.P.) towards governance because, in the previous 30 years of P.R.C.’s existence, the C.C.P. governed without using any legal codes and had little regard for the rule of law. This is because most rules were not promulgated and only adopted for internal circulation(Wing-Hung, 1997, p.469). In this essay, the statement, “Law reform efforts in China have necessarily involved the basic decision to legalise administration, that is, to use promulgated laws of the state as the primary vehicles for declaring and implementing policy. This has represented a major change in the Chinese Communist Party’s (C.C.P.) approach to governance because, for the first 30 years of the P.R.C.’s existence, the Party had ruled without any legal codes and with little regard for law at all; many, if not most, laws and administrative regulations were not even promulgated and were for neibu (internal) circulation only,” will be discussed based on the context of law reform efforts in China, and the changes that have been implemented since the establishment of the P.R.C. in 1949.
The requirement for law reforms in China is pressing because China is one of the world’s fastest-growing economies as well as a significant global power. However, China’s legal system is experiencing a considerable number of challenges that include the lack of clarity, weak enforcement, lack of legal framework, and general civil liberties (Gregg, 1993, p.443). Such issues are more pronounced in the specific areas of civil as well as political rights, economic freedom, and social justice. For example, The People’s Republic of China Anti-monopoly Law (A.M.L.) is a law that was passed by the Standing Committee of the National People’s Congress on August 30, 2007, and went into effect on August 1, 2008. The A.M.L. is intended to regulate monopolistic behavior and protect market competition. It applies to all Chinese enterprises and individuals, as well as foreign-invested enterprises and foreign individuals or enterprises outside of China with a business presence in China (Fa, 2007).
The laws and regulations in China need more clarity and are attributed as vague or contradictory. According to Lubman (2006), most foreign companies are greatly concerned about the need for clarity on the legislation of intellectual property protection. Consequently, it makes it difficult to understand the rights as well as the obligations that may result in inadequate legal protection. Moreover, this lack of clarity in the legislation in China may be used as an arbitrary interpretation of the law, leading to injustices and unfair decisions for the parties that fall, victim.
Secondly, the laws and regulations in Chinese need to be better enforced by the respective authorities. Lubman (2006) states that in the World Trade Organization, China deliberately agreed to enforce only published trade-related laws and “readily available to other W.T.O. members, individuals as well as enterprises.” China authorities need to have a standardized practice in the execution of various laws that guide various activities, including trading pacts (Fa, 2007). Inadequate resources and poor training of the police and judicial personnel, alongside weak institutions in the judicial system, largely contributes to the poor enforcement of laws. The studies have demonstrated that Chinese laws are far from achieving flexibility and their vagueness of several provisions highlights the country’s perceptions about the role of law in the socialist market economy.
Another reason to change Chinese law is that the current legal framework is established on a civil law system that is appraised to the present and current changing needs of contemporary society. As a result of poorly defined rights and obligations, an overly complicated legal framework, and a lack of flexibility while adopting the changing circumstances. The flexibility has established some inefficiencies and an inadequate legal framework, resulting in a lack of investor confidence. The fact that Chinese laws rhyme with the traditional method of Chinese lawmaking shows that there will be challenges in the law in contemporary society. According to Li (1995, p. 334), the laws need to have a clear meaning and be recognized by all people. This calls for the current leadership to opt for a point of reference to establish a movement that should educate all the citizens in china concerning the law.
There is a lack of civil liberties in China, which is a significant issue. This is because legal liberties are essential to functioning in a healthy and vibrant society though they still need to be included in China. Some notable examples include the right to freedom of expression, assembly, and association and the right to access information alongside judicial protection. Without such rights, citizens cannot challenge and hold the government and legal system accountable. China’s record of civil liberties and human rights could be better.
In most cases, the Chinese government has been criticized for treating political dissidents, religious minorities, and other groups that perceive it as threatening social stability. There are several reports in contemporary society regarding the human rights abuses in china that also includes the use of torture, arbitrary detention, and forced cohesion. This is because there is little chance that liberal-democratic rule in China will emerge in the short run ( Lubman, 2006). In a liberal democracy, the nations can exercise their separation of powers, have an independent judiciary, and have a system of checks and balances between the different arms of government.
The C.C.P.’s Early approach to the issue of governance. When the C.C.P. in China attained power, it used an authoritarian rule of governance that was largely based on the concept of the rule of man and became ignorant of the rule of law. This meant that the C.C.P. in the country did not adhere to any legal codes and needed more regard for the issues of law (Revision notes on China’s legal system, p.12). the studies have demonstrated that governments that do not follow a prescribed rule of law possess several negative implications on a given society. China could be more exceptional. As a result, most people in the country are exposed to injustices and unfairness. Since there is no proper legal system, there is a high possibility of arbitrary and discriminatory treatment for various people and groups. Therefore, dispute resolutions in the country need to be properly handled since the laws are not adequately established that provide an amicable solution to the problems experienced within the county. The second challenge for a government to fail to have the rule of law leads to failure to have some predictability. Luman (2006) states that the rule of law in a country is crucial because it facilitates predictability and societies. The absence of the law allows people to grow some level of uncertainty regarding their actual expectations and subsequent actions. Because of the absence of law in a given country, there is a decreased level of trust between the citizens and a decline in trust in government and institutions for a given state. This may undermine the legitimacy of the government and may lead to social unrest. Moreover, the Party utilized a Seibu circulation policy, meaning laws and administrative regulations were not even promulgated for internal use only. This approach to governance was largely successful in terms of sustaining in the early years of the P.R.C. rule (Li, 1995, p.328).
China’s current legal system is based on the “rule of law” principle, which was adopted in the late 1970s. This system is based on the idea that the law should be used to promote the public good and protect citizens’ rights. While this system has provided a stable foundation for China’s legal system, some critics have claimed that the law is only sometimes applied evenly or consistently. This has raised concerns that the legal system is only sometimes fair to those who are well-connected to the government or need more resources to take advantage of it. Despite the criticism, China’s legal system has made some strides in recent years. For example, the country has implemented several legal reforms to ensure its laws are more consistent and transparent. This includes adopting a unified legal code, establishing a national court system, and establishing a national legal aid system. These reforms have helped to mitigate some of the criticism leveled at China’s legal system while also ensuring that the legal system is more accessible to all citizens.
P.R.C. shift toward legalization. P.R.C. started to develop and modernize, becoming clear that C.C.P.’s approach to the governance issues needed to be revised to achieve the desires of China. As a result, there was a drastic shift towards legalization that entailed using promulgated laws for the state as primary drivers for establishing, declaring, and executing a policy. Moreover, these changes were largely driven by the aspirations to establish a more transparent and accountable system of governance along with establishing China’s laws and regulations concurrent with international standards. Li (1995, p.335) drives two different perceptions about the legalists and the idealists concerning the justice system in China.
China has undergone significant legal reforms recently as it has shifted toward a more legalistic system. The Chinese Communist Party (C.C.P.) recognizes the importance of the rule of law in promoting economic development and maintaining stability. It has taken steps to strengthen the legal system and increase the role of law in governance. The need to modernize and improve the business environment has been a key driver of legal reform in China. The C.C.P. has recognized the importance of a strong legal system in attracting foreign investment and encouraging domestic entrepreneurship. As a result, it has implemented several reforms to improve the legal system’s predictability and fairness, such as establishing commercial courts and adopting new intellectual property, contracts, and other business law laws.
Another important driver of legal reform in China has been addressing social and economic issues such as corruption, environmental protection, and human rights protection. The C.C.P. has recognized the importance of addressing these issues in recent years to maintain social stability and improve the lives of ordinary citizens. It has implemented several legal reforms to combat corruption, protect the environment, and promote the rule of law. Despite these efforts, legal reform in China faces significant challenges. The C.C.P. continues to be a dominant force in the legal system and has been accused of interfering in the judicial process and undermining court independence. In addition, there needs to be more legal education in China, and many people need to be aware of their legal rights or the legal system. This can make navigating the legal system and obtaining justice difficult.
Furthermore, corruption remains a major issue in China, and it has the potential to undermine the legal system and the enforcement of laws. The C.C.P. has taken several anti-corruption measures, including establishing anti-corruption agencies and adopting new laws and regulations. However, corruption remains a persistent problem, and holding officials accountable for their actions is frequently difficult. Finally, human rights protection in China remains a concern. The Chinese government has come under fire for how it treats human rights activists, lawyers, and minorities. It has also been accused of violating Tibetan, Uighur, and other minority groups’ rights.
Despite these obstacles, China’s shift toward legalization has significantly resulted in several significant changes. The legal system is becoming more predictable, equitable, and important in addressing social and economic issues. While much work remains to be done, the C.C.P.’s efforts to strengthen the legal system and promote the rule of law are a step in the right direction toward a more just and equitable society.
Law has been critical to China’s economic development and reforms. The legal system has been used to ease the transition from a planned to a market economy, to protect private property and commercial contracts, to enforce regulations and standards, and to settle disputes. In addition, the legal system has been used to encourage foreign investment and protect intellectual property rights. (Clarke et al., 2008). Opening up and reforming the legal system is one of the key reforms that has significantly impacted China’s economic development. This has included establishing a more independent judiciary, passing new laws and regulations, and fortifying legal institutions. These reforms have contributed to a more predictable and transparent legal environment, attracting foreign investment and stimulating economic growth.
China has recently adopted several legal reforms to address and approach legal reform within contemporary society. This is because its citizens require a fair share of the justice being served upon them by the government players. One of the ways through which legal reforms are utilized in China to address social injustices in China is the strengthening of the rule of law. One of the Chinese government’s top priorities has been to strengthen the country’s rule of law. This entails establishing a more transparent, predictable, fair, and just legal system. In practice, this has meant strengthening the judiciary’s independence, increasing the professionalization of judges and lawyers, and encouraging alternative dispute-resolution mechanisms.
China can also promote legal education to address legal reform challenges. Promoting legal education is another important aspect of Chinese legal reform. Wing-Hung (1997) highlights that they provide judges, lawyers, and other legal professionals with training and professional development opportunities. It also entails increasing public access to legal information and resources so that people can better understand their legal rights and responsibilities.
Another strategy that can be used is to modernize China’s legal systems. China’s legal system is a hybrid of traditional Chinese law and socialist law, with elements of common law thrown in for good measure. There have been efforts in recent years to modernize the legal system by bringing it more in line with international standards and best practices. The adoption of new laws and regulations, as well as the establishment of new legal institutions such as specialized courts and arbitration centers, have all contributed to this. Another strategy that could be used is to strengthen legal safeguards. An important aspect of Chinese legal reform has been strengthening legal protections for various groups (China’s Legal System). This includes efforts to protect women’s, children’s, and other vulnerable populations’ rights. It also entails combating corruption and holding government officials accountable for their actions.
The final strategy is to improve the legal system. In China, legal reform also entails improving legal services and access to justice. This includes expanding the availability of legal aid and pro bono services and developing new technologies and systems that make legal information and resources more accessible to people (Gregg, 1993, p.445).
It is critical to consider the needs of both citizens and businesses when addressing and approaching legal reforms in contemporary China. Citizens must ensure that the legal system is accessible and fair and have the protection and rights to which they are entitled. Businesses must ensure that the legal system is efficient and allows them to operate predictably and fairly. This means that reforms prioritize providing businesses with access to the legal system, providing effective dispute-resolution mechanisms, and ensuring a transparent and efficient legal process. Lastly, when it comes to reforming China’s legal landscape, it is critical to consider potential strategies. One possible strategy would be to increase the amount of legal education available to citizens, which would help to ensure that they are aware of their rights and can make informed decisions when dealing with legal issues (Wing-Hung, 1997). Furthermore, there may be a greater emphasis on legal research and reform to help ensure that the Chinese legal system is up-to-date and consistent with international standards. Lastly, there may be a greater emphasis on law enforcement to ensure that citizens and businesses are held accountable for their actions.
In conclusion, law reform efforts in China have unavoidably involved the basic decision to legalize administration, that is, to use state-promulgated laws as the primary vehicles for declaring and implementing policy. This represents a significant shift in the C.C.P.’s approach to governance, as the Party ruled without any legal codes and with little regard for the rule of law for the first 30 years of the P.R.C.’s existence. The shift toward legalization has significantly impacted the C.C.P.’s governance approach, the Chinese people, and the international community. Legal reforms in contemporary China are a critical issue that must be addressed to ensure that the legal system is fair and effective. Considering the current state of the legal system, the needs of both citizens and businesses, and potential legal reform strategies, it is possible to ensure that China’s legal system can keep up with the changing economic and social landscape. In China, legal reform is a complex and ongoing process that entails a wide range of efforts to improve the legal system and ensure that it meets the needs of the people. While there have been many successes and improvements in recent years, much more work remains to be done to fully realize China’s vision of a just and fair legal system.
Reference list
Clarke, D., Murrell, P. and Whiting, S., (2008). The role of law in China’s economic development. China’s great economic transformation, p. 11. From http://econweb.umd.edu/~murrell/articles/ChinaInstitutions.pdf
Fa, Z., (2007). Anti-Monopoly Law of the People’s Republic of China. Promulgated by the Standing Comm. Nat’l People’s Cong, pp.2009-02.
Gregg, B., (1993). The modernization of current Chinese law. The Review of Politics, 55(3), 443–470.from https://www.cambridge.org/core/journals/review-of-politics/article/modernization-of-contemporary-chinese-law/2578CDEE62B326F7A7F0BA5B71049570
Li, W., (1995). Philosophical influences on contemporary Chinese law. Ind. Int’l & Comp. L. Rev., 6, p.327. from https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/iicl6§ion=19
Lubman, S., (2006). Looking for law in China. Colum. J. Asian L., 20, p.1.from https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/colas20§ion=5
Wing-Hung Lo, C., 1997. Socialist Legal Theory in Deng Xiaoping’s China. Colum. J. Asian L., 11, p.469. from https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/colas11§ion=18
Primary sources
China’s Legal System
Revision notes on China’s legal system: ESPS0009 – Law, and Governance in Contemporary China
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