Rule of Law in China: A Ten-year Review (2002-2012)

By Lin Li and He Tian

This volume summarizes the achievements on rule of law in China for the ten years from 2002 to 2012, particularly focusing on areas such as judicial review, anti-monopoly, reform of government agencies, the circulation of rural Land contracted management rights, and the protection of children’s rights. It also considers the prospects for rule of law in China in the future. With numerous tables and screenshots to illustrate the text and provide a comprehensive overview and insights into China’s rule of law establishment, it appeals to readers interested in judicial reform, rural medical service, children’s rights protection and anti-monopoly.

• Language: English
• Publisher: Springer
• Release date: Jul 30, 2019
• ISBN: 9789811365416

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© Social Sciences Academic Press 2019

Lin Li, He Tian and Yanbin Lv (eds.)Rule of Law in ChinaResearch Series on the Chinese Dream and China’s Development Pathhttps://doi.org/10.1007/978-981-13-6541-6_1

General Report on China’s Rule of Law 2002–2012

He Tian¹  and Jing Zhou²

(1)

Institute of Law, Chinese Academy of Social Sciences, Beijing, China

(2)

Party School of the Central Committee of C.P.C (National Academy of Governance), Beijing, China

The Report of the CPC to its Sixteenth National Congress in November 2002 made governance by law an important part and goal for developing socialist democracy. The report emphasized that the essence of developing socialist democracy is to organically unify the Party’s leadership, the people’s role as masters of the country and the rule of law. According to the report, the leadership of the CPC is the fundamental guarantee for people’s democracy and governance by law; enabling the people to become masters of the country is an essential requirement of socialist democracy; governance by law is a fundamental strategy for the ruling party to lead the people to govern the country. Thereupon, ruling the country by law was defined as the fundamental strategy.

Over the 2002–2012 period, China has kept expediting scientific legislation, modifying laws and regulations and improving the socialist system of law. When it comes to the building of law-based government, China has regulated power operation and improved transparency by firmly centering on the objectives of streamlining administration and delegating power to the lower levels and implementing effective governance. In terms of judicial reform, openness has been taken as the driving force and key focus to improve judicial credibility and maintain judicial impartiality. The efforts in anti-corruption and power governance have been strengthened unprecedentedly. A batch of major cases have been investigated and handled, but more emphases have been laid on preventive works. The criminal law system has been improved constantly, and litigant rights have been further guaranteed. In the aspect of civil, commercial and economic rule of law, legislation has been improved step by step and the efforts have been strengthened in institutional construction and law enforcement to maintain the lawful rights and interests of market players. China has also gradually improved the social rule of law, boosted the perfection of social security system, improved the food safety monitoring level and worked harder to protect and improve the environment. In foreign-related fields, China has kept safeguarding its territorial sovereignty according to the law, actively engaged in multi-field international legal cooperation and positively fulfilled its international legal obligations.

1 Legislative Work

Over the 2002–2012 period, China has made substantial progress in institutional construction, but there is still much room for improvement. On January 24, 2011, a symposium on the formation of the socialist system of law with Chinese characteristics was convened. Wu Bangguo, Chairman of the Standing Committee of the NPC, asserted the formation of the socialist system of law with Chinese characteristics. This system of law is composed of laws, administrative laws and regulations, local laws and regulations and multi-level laws and regulations with the Constitution at the core and with constitution-related law, civil and commercial law and laws of multiple legal departments as the backbone. This indicates that China has put an end to the state of no laws to abide by. That said, the formation of the system of law does not mean the founding of a country under the rule of law. Legislation needs to be further enhanced scientifically and democratically and China still has a long way to go.

Making laws to make laws available is the primary goal of legislative work after the implementation of the reform and opening up. After more than 30 years of efforts, China has established its system of law. At the Third Session of the 11th National People’s Congress held in March 2011, Chairman Wu Bangguo clearly pointed out in the work report that the socialist system of law with Chinese characteristics has taken shape. According to his statement, this system of law is based on China’s national conditions and reality, adapts the needs of the reform and opening up and the socialist modernization drive, and reflects the will of the Party and the people in concentration. He also pointed out that this system of law is composed of laws, administrative laws and regulations, local laws and regulations and multi-level laws and regulations with the Constitution at the core and with constitution-related law, civil and commercial law and laws of multiple legal departments as the backbone. After the formation of the system of law with Chinese characteristics, the focus of legislative work has been shifted from filling legislative gaps to promoting institutional improvement and improving the quality of legislation. More emphasis has been laid on the openness and public participation in legislation.

1.1 Fully Exercise Legislative Powers and Form a Socialist System of Law with Chinese Characteristics

Legislation is the precondition for building the socialist rule of law and governing the country by law and also the institutional guarantee for realizing equality and fairness and promoting social harmony. China has made new progress in legislation over the 2002–2012 period. The Second Session of the 10th National People’s Congress held on March 14, 2004 adopted the Fourth Amendment to the Constitution of 1982. This time, 14 articles were amended. The main amendments included: establishing the constitutional status of the important thought of Three Represents, providing constitutional guarantee for the coordinated development of three civilizations, consolidating and developing the most extensive patriotic united front. The main amendments also included: safeguarding and promoting the healthy development of non-public sectors of the economy, protecting the right of citizens to own private properties and to inherit private properties, and providing the constitutional guarantee for the improvement of the social security system. The amendments also established the principle of the state respects and protects human rights and provided constitutional guarantee for establishing and improving an emergency system.

With the Constitution at the core, the National People’s Congress and its Standing Committee, the State Council and its subordinates, and even local departments have fully exercised their respective legislative powers and advanced with the times to reflect the people’s will, safeguard the people’s interests and provide the legal guarantee for socialist construction by means of legislation. As of the end of August 2011, China had enacted the existing Constitution, 240 effective laws, 706 administrative laws and regulations and over 8600 local laws and regulations, which means the socialist system of law with Chinese characteristics had taken shape.

1.2 Adjust the Legislative Structure and Realize the Overall and Coordinated Development of Legislation

In recent years, China has gradually adjusted the previous legislative structure with economic legislation at the core. The emphasis of legislative contents have been transformed from economic legislation to the comprehensive and balanced development of economic legislation, social legislation, civil legislation, criminal legislation, especially to the vigorous advancement of social legislation, with more emphasis on people’s livelihood. Before 2003, social laws only accounted for 2–6% in legislation while the economic laws accounted for as high as 40–60%. Now, the proportion of social laws has increased year by year. At present, the proportion of social laws at the national level stands at 20–30%. In some local areas, the proportion of social laws has reached 50–60%.

Increasing the proportion of social laws has reflected the requirement for building a harmonious socialist society and conforms to the increasingly important goal of safeguarding the people’s livelihood. The old Compulsory Education Law was adopted at the Fourth Session of the 6th National People’s Congress on April 12, 1986 and enforced on July 1, 1986. The NPC Standing Committee adopted the revised Compulsory Education Law on June 29, 2006. On September 1, 2006, the revised Compulsory Education Law was enforced. Compulsory Education Law is a national fundamental law on universalizing the nine-year compulsory education system. All school-age children and juveniles must accept nine-year basic education. Neither tuition fees nor miscellaneous fees shall be charged during the nine years of compulsory education. Compulsory education is the public security provided on the basis of public finance. Compulsory education benefits all school-age children and juveniles as part of the efforts to guarantee the healthy growth of Chinese adolescents and provide human resources with basic knowledge to all sectors of Chinese society.

The Labor Contract Law was adopted by the NPC Standing Committee on June 29, 2007 and was enforced on January 1, 2008. The Labor Contract Law provides for the conclusion, performance, modification, dissolution and termination of labor contract and includes contents like special regulations, supervision and inspection, legal responsibilities. It is an essential law for regulating labor relations. From the perspective of legislative purpose, the main idea of The Labor Contract Law is firstly to define the rights and obligations of parties in a labor contract. Labor contract is the agreement between an employer and an employee for a two-way selection and confirmation of the labor relations. It specifies the respective rights and obligations of parties under the market economic system. Labor contract is the fundamental basis for protecting the lawful rights and interests of laborers. Secondly, the main idea of The Labor Contract Law is to protect the lawful rights and interests of laborers. A rather controversial issue in making the Labor Contract Law is whether the legislative purpose is to protect the lawful rights and interests of the laborer (single protection) or to protect the lawful rights and interests of both the laborer and the employer (double protection). In the process of soliciting public opinion and deliberation, there was a view of double protection that is to protect the lawful rights and interests of both the employees and the employers. Only protecting the lawful rights and interests of the employees would harm the interests of the employers, unbalance the labor relations and ultimately harm the interests of the employees. Most people believed that the Labor Contract Law should incline to the protection of the lawful rights and interests of laborers. But, the reality is that capital is too strong, resulting in widespread infringement of the legitimate rights and interests in practices. The legislation adopted the opinion of the majority and tended to protect the laborers. At the same time, the legislation tried to balance citizens’ right to work and employers’ corporate responsibility and give consideration to the lawful rights and interests of both employees and employers.

Food safety has become the issue that matters most to the public in the last decade. The Food Hygiene Law was released as early as in 1995, but the law has gradually lagged behind the social development and failed to deal with the illegal activities related to food safety and driven by profit seeking. In this case, issues related to food safety are rather prominent. In order to guarantee food safety and protect the public’s life and health, the NPC Standing Committee adopted the Food Safety Law with a large margin of votes on February 28, 2009 and made it come into force on June 1, 2009 by replacing the Food Hygiene Law. The Food Safety Law is an important law for preventing and controlling food-borne diseases, eliminating and reducing harms caused by harmful food factors and guaranteeing food safety and the life safety and health of the public. The significance of the Food Safety Law is the address of issues related to food safety in institution through establishing standards on the basis of risk monitoring and evaluation of food safety.

The Employment Promotion Law was adopted at the 29th Session of the Standing Committee of the 10th National People’s Congress on August 30, 2007 and enforced on January 1, 2008. The legislative purpose of the law is to boost employment, facilitate the coordination between economic development and employment enlargement and promote social harmony and stability. The core contents of the Employment Promotion Law include the following aspects. First, the law emphasizes fair employment and prohibits employment discrimination. In real life, employment discrimination commonly exists against such social groups as women, ethnic minorities, the disabled, infectious disease pathogen carriers and rural labors. Therefore, this law stipulates that employers and job intermediaries shall provide equal opportunities and fair job employment conditions to laborers including above groups and shall not have employment discriminations in recruitment and intermediary activities for employment. Second, the law is aimed at establishing a policy support system for job promotion. All governments above the county level shall implement the financial policies that can help promote the employment, improve the employment environment and increase job opportunities. The state establishes and improves the unemployment insurance system to ensure the basic living of the unemployed in accordance with the law and promote their re-employment. The state establishes and improves the employment system ensuring equal job opportunities for urban and rural residents and guides an orderly transfer of employment of surplus rural labors. Other main provisions of the law include that public employment service providers shall not charge deposits from the employees when organizing job fairs; job intermediaries shall neither detain the employees’ certificates nor ask deposits from them. The law also specifies the job responsibilities of the government and relevant social organizations in employment promotion; the labor administrative department sets up a reporting system to accept reports on violating the Employment Promotion Law; employees suffering job discrimination may appeal directly to a people’s court. The law requires intensifying the support for small and medium-sized enterprises in enlarging employment. The law also stipulates that people’s governments above the county level shall establish their respective unemployment warning system and the state shall take measures to establish and improve a vocational training system. Employment is the essence of people’s livelihood and the matter having a bearing on the immediate interests of the people. The promulgation of the Employment Promotion Law signals that China has entered a new stage of employment promotion and labor rights protection.

The Standing Committee of the NPC adopted the Social Insurance Law on October 28, 2010. This is a law for safeguarding and improving people’s livelihood. The legislative purpose of the law is to regulate social insurance relations, safeguard citizens’ legitimate rights and interests to be covered by social insurance and to enjoy social insurance benefits, allow the citizens to share the development achievements and promote social harmony and stability. The Social Insurance Law is a principal support in the socialist system of law with Chinese characteristics. The law has regulated social insurance relations, stipulated the rights and obligations of employees and employers, specified the responsibilities of administrative departments and handling agencies related to social insurance, and clarified the legal liabilities of all parties of social insurance. The Social Insurance Law and the Labor Law, the Civil Servant Law, the Labor Contract Law, the Employment Promotion Law and the Law on Mediation and Arbitration of Labor Disputes supplement each other and constitute China’s system of law on human rights and social security. Safeguarding and improving people’s livelihood is the starting point and objective of China’s acceleration of the transformation of economic development mode. We can say that the Social Insurance Law has effectively arranged and regulated social insurance, making China’s social insurance system move onto a legalized track.

The amendments to the Law on the Protection of Persons with Disabilities were based on guaranteeing the living and development of the disabled. In order to adapt to the requirements of social development in recent years for further guaranteeing the lawful rights and interests of people with disabilities and promote them to better take part in social activities, the previous system has been revised and improved in multiple aspects. The Regulations on the Supervision and Administration of the Quality and Safety of Dairy Products has improved relevant supervision mechanisms given existing issues in the supervision of the safety of dairy products and food that have been exposed by powdered milk incidents. Regulations on Post-Wenchuan Earthquake Recovery and Reconstruction provides for transitional placement in earthquake stricken areas, recovery and reconstruction planning, recovery and reconstruction implementation, fund raising, policy support, etc.

1.3 Highlight Enactment, Revision and Abolition, Combines the Creation of Laws with the Improvement of Laws

While introducing new laws, China continues to value the enactment, revision and abolition of laws and regulations. After more than 60 years of development since the founding of the People’s Republic of China, especially the 30-plus years of development since the reform and opening, China has gone through the historical process from the absence of legal system to the availability of the rule of law. Some laws created in the past can no longer adapt to the development and changes of today’s economic relations and social reality. In this case, legislative departments have revised some crucial laws and regulations based on the needs of social development. In order to adapt to the urgent need of the implementation of the Administrative License Law, the Standing Committee of the NPC has amended relevant clauses of nine laws, namely the Highway Law, the Corporation Law, the Securities Law, the Bill Law, the Auction Law, the Wild Animal Protection Law, the Fisheries Law, the Seeds Law and the Regulations on Academic Degrees. In order to coordinate the amendments to The Criminal Procedure Law, the Standing Committee of the NPC has amended seven laws in a package, providing a good model for coordinating the relations of related laws in further formulation and revision of laws. The revision of such laws as the Electoral Law, the Law on Deputies to the National People’s Congress and Local People’s Congresses at All Levels and the Organic Law of the Villagers Committees has further strengthened the protection of citizens’ constitutional rights. The revision of the State Compensation Law, the Law of Administrative Supervision, the Law on the Protection of State Secrets, and the Regulations on Administrative Reconsideration has further enhanced the supervision and restriction of public power exercise. The revision of other laws and regulations like the Copyright Law, the Rules for the Implementation of the Patent Law and the Regulations on Customs Protection of Intellectual Property Rights has further reinforced the protection of intellectual properties and innovation activities.

Apart from the modification of laws, legislative departments have also timely abolished the laws and regulations that are inadaptable to the social development. The NPC Standing Committee issued the Decision on the Abolition of Reeducation through Labor on December 28, 2013. Thereupon, the long-existed and widely reviled system of reeducation through labor was withdrawn from the historical stage of China’s social management.

1.4 Strengthen Participation in Legislation, Realize Democratic and Scientific Legislation

In legislative process, legislative departments have extensively solicited and absorbed public opinions and repeatedly demonstrated the opinions in a bid to make legislation more democratic and scientific. On July 10, 2005, the NPC Standing Committee published the full text of the Property Law (Draft) for public opinions. 11,543 pieces of public opinions were solicited, including opinions and suggestions proposed by NPC standing committees of 26 provinces, autonomous regions, municipalities directly under the central government and 15 larger cities, 47 related central departments, 16 large companies, 22 law teaching and research institutes, and law experts. The NPC Law Committee and the Legislative Affairs Commission of the NPC Standing Committee timely made feedbacks, and released the feedbacks to the public through the media after three times of sorting and summary of the opinions, representing the interactions between legislative organs and the public. Legislative departments also held legislative hearings to listen to the opinions of experts, scholars, stakeholders and different groups of people. For instance, the Legislative Affairs Commission of the NPC Standing Committee convened a legislative hearing on individual income tax law in 2006 and listened to the extensive opinions of all walks of life.

Food safety law has always been a focal point of legislation. The draft of the food safety law was published to the society to extensively solicit public opinions in order to implement the principle of scientific and democratic legislation. Between April 20 and May 20, 2008, altogether 11,327 pieces of opinions were received from all walks of life by the Legislative Affairs Commission of the NPC Standing Committee.

The State Council officially launched the management information system of public comments on administrative legislation drafts (http://​yijian.​chinalaw.​gov.​cn/​lisms/​action/​guestLoginAction​.​do). The public can express their opinions on any administrative legislation draft that is in the process of comment solicitation so long as they enter the system. The State Council uses this information system to disclose drafts of relevant legislative projects of the State Council and administrative legislation drafts of departments affiliated to the State Council for public opinions. Some departments affiliated to the State Council and local people’s congresses and governments with legislative powers have also implemented the system of soliciting opinions and opened the special column of seeking for opinions for laws and regulations on their respective website. Or, they have developed their respective special opinion solicitation system. Some local areas have also actively fed back the public’s opinions on draft laws and regulations. For example, the Municipal Government of Shanghai issues a special report on opinion solicitation results on its website after promulgating a regulation, or individually replies proposers, and also gives sufficient reasons for the opinions that are not adopted.

With the opening of legislative work, the degree of legislative participation of people from all walks of life has also increased gradually. The widely-watched Law on Vehicle and Vessel Tax (Draft) in 2010 was disclosed to the society for soliciting public opinions. According to the information disclosed by the Legislative Affairs Commission of the NPC Standing Committee, 97,295 pieces of modification comments and suggestions and 40 letters from the public were received by the legislative organ within just one month. The opinion solicitation for the Amendment to the Law on Individual Income Tax (Draft) in 2011 received great attentions and positive feedbacks from the public, forming a scenario of discussions by the entire society. According to the Public Opinions on the Amendment to the Law on Individual Income Tax (Draft) sorted and released by the Economic Law Office of the Legislative Affairs Commission, the legislative organ received 181 letters from the public and 237,684 pieces of opinions raised by 82,707 netizens through the website of the npc.gov.cn (each netizen could comment respectively on 4 stipulations of the draft). In 2012, the public was even more enthusiastic about legislative participation. 557,243 pieces of public opinions were received for the Amendment to the Labor Contract Law (Draft); 330,960 pieces of public comments (see Table 1) were received for the Amendment to the Budget Law(Draft), far beyond the scale of public participation in the solicitation of opinions for the Amendment to the Law on Individual Income Tax (Draft) in 2011.

1.5 Focus on Law Enforcement, Timely Formulate Supporting Laws and Regulations

In recent years, legal departments have focused more on the implementation of the existing legal system and specified the provisions of some law through the formulation of related laws, administrative laws and regulations and local laws and regulations to ensure the effective enforcement of the law. The Law on Enterprise State-owned Assets released in 2008 further details the principled provisions related to state-owned assets in the Property Law. The Regulations on the Implementation of the Labor Contract Law was introduced in due time and clarified the divergences of all sectors of society in recognition of related systems in The Labor Contract Law. It further improves the operability of relevant systems in the law. The Regulation on the Supervision and Administration of Securities Companies, Trial Regulations on Compliance Management of Securities Companies, the Interim Provisions on the Examination and Approval of the Business Scope of Securities Companies, Administrative Measures on Sponsorship for Securities Issuance and Listing, the Regulation on the Risk Disposal of Securities Companies, among other regulated documents, have created operable conditions for the specific implementation of the Securities Law. Following the formulation of the Food Safety Law on July 20, 2009, the State Council formally issued and implemented the Regulation on the Implementation of the Food Safety Law. Besides, some local governments have also released some regulations for the implementation of some laws and regulations, including Measures of Beijing Municipality for the Implementation of the Law the People’s Republic of China on Specialized Farmers Cooperatives, Measures of Beijing Municipality for the Implementation of the Law of the People’s Republic of China on the Protection of Rights and Interests of Women, Measures of Ningxia Hui Autonomous Region for the Implementation of the Energy Conservation Law of the People’s Republic of China, Measures of Liaoning Province for the Implementation of the Regional Ethnic Autonomy Law of the People’s Republic of China,