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The Chinese Judiciary

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Desmond Wee
Desmond Wee

Presentation delivered on February 20, 2014 for China's Domestic Politics class at the University of Pennsylvania.

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Desmond Wee PSCI229 Chinas Domestic Politics University of Pennsylvania Symbol of the Supreme Peoples Court (SPC)
The Chinese Judiciary
Donald Clarke, Peter Murrell, and Susan Whiting, The Role of Law in Chinas Economic Development, in Chinas Great Economic Transformation, (Cambridge University Press, 2008) chapter eleven, pp. 375-428
Problems of Chinas Legal System Today Significant gaps in legal structure governing economic activity Lacks a number of institutional features that could be effective in identifying and reducing the inevitable gaps and ambiguities Local protectionism: dependence of courts on local government and Party leaders Corruption
Rights Hypothesis [E]conomic growth requires a legal order offering stable and predictable rights of property and contract However, Clarke, Murrell & Whiting (CMW): provides little explanatory power for China.
Functional Substitutes for Formal Institutions Property Rights Cadre evaluation system (Lecture 7; Whiting) Fiscal system (Lecture 7; Whiting) Local government ownership of township and village enterprises (TVEs) Transactions in Goods & Services Dual-track system Footnote: Transitional institutions vs. Best-practice institutions (Qian, 2003)
Conclusion The relationship between legal and economic development was bidirectional a coevolutionary process Have formal legal institutions contributed in an important way to Chinas remarkable economic success? No, but instead Economic success has fostered the development of law, rather than the reverse.
The Chinese Judiciary
Jerome Cohens Testimony to the Congressional-Executive Commission on China
Criminal Justice Death penalty Criminal Procedure Law (CPL) No warrants Arrest Search (Mostly) no bail/release under guaranty pending trial Limited right to counsel False confessions gained by torture UN Convention Against Torture Section 306 of the Criminal Law Reeducation through labor (laojiao)
Major Defects National Peoples Congress (NPC) Standing Committee (NPCSC) reserves the sole power to modify legislation; interpret and apply the Constitution The Chinese Constitution is not enforced No judicial review for courts: invalidating legislation is prohibited Conflict: courts must seek a resolution from a higher-level legislative body OR rule in accordance with the lower-level rule
Constitutional Review: The NPC Review Model NPCSC Law on Legislation Sun Zhigang case Limited review: Administrative Litigation Law State Compensation Law Supreme Peoples Court 2001 education case Reply to Qi Yuling; 2008 update [Update:] 2011 SinaWeibo case (Independent?) Constitutional Court?
Further reading Judicial reform: Court orders http://www.economist.com/news/china/21591210-it-turns-out-torturing- people-confessions-isnt-all-right-after-all-court-orders Chinas Constitutional Crisis http://www.theatlantic.com/china/archive/2013/09/chinas-constitutional- crisis/279285/ Citizens Rights, the Constitution and the Courts http://blogs.wsj.com/chinarealtime/2011/09/26/citizens%E2%80 %99-rights-the-constitution-and-the-courts/ Chinese Judge Expresses Support for Free Speech on SinaWeibo in Ruling http://www.businessinsider.com/chinese-judge-expresses-support- for-free-speech-on-sina-weibo-in-ruling-2011-9 A Comment on the Rise and Fall of the Supreme Peoples Courts Reply to Qi Yulings Case http://suffolklawreview.org/wp-content/ uploads/2013/01/Tong_AdvancePrint.pdf

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The Chinese Judiciary

  • 1. Desmond Wee PSCI229 Chinas Domestic Politics University of Pennsylvania Symbol of the Supreme Peoples Court (SPC)
  • 3. Donald Clarke, Peter Murrell, and Susan Whiting, The Role of Law in Chinas Economic Development, in Chinas Great Economic Transformation, (Cambridge University Press, 2008) chapter eleven, pp. 375-428
  • 4. Problems of Chinas Legal System Today Significant gaps in legal structure governing economic activity Lacks a number of institutional features that could be effective in identifying and reducing the inevitable gaps and ambiguities Local protectionism: dependence of courts on local government and Party leaders Corruption
  • 5. Rights Hypothesis [E]conomic growth requires a legal order offering stable and predictable rights of property and contract However, Clarke, Murrell & Whiting (CMW): provides little explanatory power for China.
  • 6. Functional Substitutes for Formal Institutions Property Rights Cadre evaluation system (Lecture 7; Whiting) Fiscal system (Lecture 7; Whiting) Local government ownership of township and village enterprises (TVEs) Transactions in Goods & Services Dual-track system Footnote: Transitional institutions vs. Best-practice institutions (Qian, 2003)
  • 7. Conclusion The relationship between legal and economic development was bidirectional a coevolutionary process Have formal legal institutions contributed in an important way to Chinas remarkable economic success? No, but instead Economic success has fostered the development of law, rather than the reverse.
  • 9. Jerome Cohens Testimony to the Congressional-Executive Commission on China
  • 10. Criminal Justice Death penalty Criminal Procedure Law (CPL) No warrants Arrest Search (Mostly) no bail/release under guaranty pending trial Limited right to counsel False confessions gained by torture UN Convention Against Torture Section 306 of the Criminal Law Reeducation through labor (laojiao)
  • 11. Major Defects National Peoples Congress (NPC) Standing Committee (NPCSC) reserves the sole power to modify legislation; interpret and apply the Constitution The Chinese Constitution is not enforced No judicial review for courts: invalidating legislation is prohibited Conflict: courts must seek a resolution from a higher-level legislative body OR rule in accordance with the lower-level rule
  • 12. Constitutional Review: The NPC Review Model NPCSC Law on Legislation Sun Zhigang case Limited review: Administrative Litigation Law State Compensation Law Supreme Peoples Court 2001 education case Reply to Qi Yuling; 2008 update [Update:] 2011 SinaWeibo case (Independent?) Constitutional Court?
  • 13. Further reading Judicial reform: Court orders http://www.economist.com/news/china/21591210-it-turns-out-torturing- people-confessions-isnt-all-right-after-all-court-orders Chinas Constitutional Crisis http://www.theatlantic.com/china/archive/2013/09/chinas-constitutional- crisis/279285/ Citizens Rights, the Constitution and the Courts http://blogs.wsj.com/chinarealtime/2011/09/26/citizens%E2%80 %99-rights-the-constitution-and-the-courts/ Chinese Judge Expresses Support for Free Speech on SinaWeibo in Ruling http://www.businessinsider.com/chinese-judge-expresses-support- for-free-speech-on-sina-weibo-in-ruling-2011-9 A Comment on the Rise and Fall of the Supreme Peoples Courts Reply to Qi Yulings Case http://suffolklawreview.org/wp-content/ uploads/2013/01/Tong_AdvancePrint.pdf