Court system of the People's Republic of China
Encyclopedia
The Chinese court system is based on civil law
, modeled after the legal systems of Germany
and France
.
of 1982 and the Organic Law of the People's Courts that went into effect on January 1, 1980, the Chinese courts are divided into a four-level court system
:
The court system is paralleled by a hierarchy of prosecuting offices called people's procuratorates, the highest being the Supreme People's Procuratorate.
Hong Kong
and Macau
have separate court systems.
began the process of restoring the judicial system. The world was able to see an early example of this reinstituted system in action in the showcase trial of the Gang of Four
and six other members of the "Lin-Jiang clique" from November 1980 to January 1981 (see the Four Modernizations
). The trial, which was publicized to show that China had restored a legal system that made all citizens equal before the law
, actually appeared to many foreign observers to be more a political than a legal exercise. Nevertheless, it was intended to show that China was committed to restoring a judicial system.
The Ministry of Justice
, abolished in 1959, was re-established under the 1979 legal reforms to administer the newly restored judicial system. With the support of local judicial departments and bureaus, the ministry was charged with supervising personnel management, training, and funding for the courts and associated organizations and was given responsibility for overseeing legal research
and exchanges with foreign judicial bodies.
The 1980 Organic Law of the People's Courts (revised in 1983) and the 1982 State Constitution
established four levels of courts in the general administrative structure. Judge
s are elected or appointed by people's congresses at the corresponding levels to serve a maximum of two five-year terms. Most trial
s are administered by a collegial bench made up of one to three judges and three to five assessors. Assessors, according to the State Constitution, are elected by local residents or people's congresses from among citizens over twenty-three years of age with political rights or are appointed by the court for their expertise. Trials are conducted in an inquisitorial manner, in which both judges and assessors play an active part in the questioning
of all witnesses. (This contrasts with the adversarial system
, in which the judge is meant to be an impartial referee between two contending attorneys.) After the judge and assessors rule on a case, they pass sentence. An aggrieved party can appeal to the next higher court.
The Organic Law of the People's Courts requires that adjudication committees be established for courts at every level. The committees usually are made up of the president, vice presidents, chief judges, and associate chief judges of the court, who are appointed and removed by the standing committees of the people's congresses at the corresponding level. The adjudication
committees are charged with reviewing major cases to find errors in determination of facts or application of law and to determine if a chief judge
should withdraw from a case. If a case is submitted to the adjudication committee, the court is bound by its decision. The Supreme People's Court stands at the apex of the judicial structure. Located in Beijing
, it has jurisdiction over all lower and special courts, for which it serves as the ultimate appellate court. It is directly responsible to the National People's Congress Standing Committee, which elects the court president.
China also has 'special' military
, rail transport
, water transport, and forestry
courts. These courts hear cases of counter-revolutionary activity, plundering, bribery
, sabotage
, or indifference
to duty that result in severe damage to military facilities, work place, or government property or threaten the safety of soldiers or workers.
Military courts make up the largest group of special courts and try all treason
and espionage
cases. Although they are independent of civilian courts and directly subordinate to the Ministry of National Defense
, military court decisions are reviewed by the Supreme People's Court. Special military courts were first established in 1954 to protect the special interests of all commanders, political commissars, and soldiers, but they ceased to function during the Cultural Revolution
(1966-76). Military courts and procuratorates were reinstituted in October 1978, and open military trials resumed in December of that year.
In April 1986, at the Fourth Session of the Sixth National People's Congress, the General Principles of the Civil Code was approved as "one of China's basic laws." Consisting of more than 150 articles, the code was intended to regulate China's internal and external economic relations to establish a stable base conducive to trade
and attractive to foreign investors. Many of its provisions define the legal status of economic entities and the property rights they exercise. The code clearly stipulated that private ownership of the means of production is protected by law and may not be seized or interfered with by any person or organization. It also recognizes partnerships and wholly foreign-owned or joint-venture enterprises.
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, modeled after the legal systems of Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
and France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
.
System
According to the Constitution of the People's Republic of ChinaConstitution of the People's Republic of China
The Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
of 1982 and the Organic Law of the People's Courts that went into effect on January 1, 1980, the Chinese courts are divided into a four-level court system
Court of general jurisdiction of the People's Republic of China
Court of General Jurisdiction is one level of the court system in China. The courts under this jurisdiction includes:* Supreme People's Court* Local people's court-See also:* General jurisdiction...
:
- At the highest level is the Supreme People's Court in BeijingBeijingBeijing , also known as Peking , is the capital of the People's Republic of China and one of the most populous cities in the world, with a population of 19,612,368 as of 2010. The city is the country's political, cultural, and educational center, and home to the headquarters for most of China's...
, the premier appellate forum of the land, which supervises the administration of justice by all subordinate "local" and "special" people's courts. It is the court of last resort for the whole People's Republic of China except for Macao and Hong Kong, which, as a Portuguese-descended civil law jurisdiction and British-descended common law jurisdiction, have separate judicial systems.
- Local people's courts—the courts of the first instance—handle criminalCriminal lawCriminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
and civilCivil law (common law)Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
cases. These people's courts make up the remaining three levels of the court system and consist of "high people's courtHigh people's courtA High people's court or Higher people's court is the highest local court in the People's Republic of China and reports to the people's congresses at provincial level....
s" at the level of the provinces, autonomous regions, and special municipalities; "intermediate people's courtIntermediate people's courtAn intermediate people's court is the second lowest local people's court in the People's Republic of China. According to the Organic Law of the People's Courts of the People's Republic of China, the intermediate people's courts handle relevant important local cases in the first instance and hear...
s" at the level of prefectures, autonomous prefectures, and municipalities; and "basic people's courtBasic people's courtA basic people's court is a lowest level court in the Courts of General Jurisdiction in the People's Republic of China. According to the Organic Law of the People's Courts of the People's Republic of China, the basic people's courts handle the first instance cases at the local level.Basic people's...
s" at the level of autonomous counties, towns, and municipal districts.
- Courts of Special Jurisdiction (special courts) comprises the Military Court of China (military), Railway Transport Court of China (railroad transportation) and Maritime Court of China (water transportation), and forestry.
The court system is paralleled by a hierarchy of prosecuting offices called people's procuratorates, the highest being the Supreme People's Procuratorate.
Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
and Macau
Macau
Macau , also spelled Macao , is, along with Hong Kong, one of the two special administrative regions of the People's Republic of China...
have separate court systems.
History of court structure and process
Between the Anti-Rightist Campaign of 1957 and the legal reforms of 1979, the courts—viewed by the leftists as troublesome and unreliable—played only a small role in the judicial system. Most of their functions were handled by other party or government organs. In 1979, however, the National People's CongressNational People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
began the process of restoring the judicial system. The world was able to see an early example of this reinstituted system in action in the showcase trial of the Gang of Four
Gang of Four
The Gang of Four was the name given to a political faction composed of four Chinese Communist Party officials. They came to prominence during the Cultural Revolution and were subsequently charged with a series of treasonous crimes...
and six other members of the "Lin-Jiang clique" from November 1980 to January 1981 (see the Four Modernizations
Four Modernizations
The Four Modernizations were goals, set forth by Zhou Enlai in 1963, to strengthen the fields of agriculture, industry, national defense, science and technology...
). The trial, which was publicized to show that China had restored a legal system that made all citizens equal before the law
Equality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
, actually appeared to many foreign observers to be more a political than a legal exercise. Nevertheless, it was intended to show that China was committed to restoring a judicial system.
The Ministry of Justice
Ministry of Justice of the People's Republic of China
Ministry of Justice of the People's Republic of China is a ministry of the Chinese central government which is responsible for legal affairs...
, abolished in 1959, was re-established under the 1979 legal reforms to administer the newly restored judicial system. With the support of local judicial departments and bureaus, the ministry was charged with supervising personnel management, training, and funding for the courts and associated organizations and was given responsibility for overseeing legal research
Legal research
Legal research is "the process of identifying and retrieving information necessary to support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and...
and exchanges with foreign judicial bodies.
The 1980 Organic Law of the People's Courts (revised in 1983) and the 1982 State Constitution
Constitution of the People's Republic of China
The Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
established four levels of courts in the general administrative structure. Judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s are elected or appointed by people's congresses at the corresponding levels to serve a maximum of two five-year terms. Most trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
s are administered by a collegial bench made up of one to three judges and three to five assessors. Assessors, according to the State Constitution, are elected by local residents or people's congresses from among citizens over twenty-three years of age with political rights or are appointed by the court for their expertise. Trials are conducted in an inquisitorial manner, in which both judges and assessors play an active part in the questioning
Questioning
Questioning is a major form of human thought and interpersonal communication. The thinker employs a series of questions to explore an issue, an idea or something intriguing...
of all witnesses. (This contrasts with the adversarial system
Adversarial system
The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...
, in which the judge is meant to be an impartial referee between two contending attorneys.) After the judge and assessors rule on a case, they pass sentence. An aggrieved party can appeal to the next higher court.
The Organic Law of the People's Courts requires that adjudication committees be established for courts at every level. The committees usually are made up of the president, vice presidents, chief judges, and associate chief judges of the court, who are appointed and removed by the standing committees of the people's congresses at the corresponding level. The adjudication
Adjudication
Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved....
committees are charged with reviewing major cases to find errors in determination of facts or application of law and to determine if a chief judge
Chief judge
Chief Judge is a title that can refer to the highest-ranking judge of a court that has more than one judge. The meaning and usage of the term vary from one court system to another...
should withdraw from a case. If a case is submitted to the adjudication committee, the court is bound by its decision. The Supreme People's Court stands at the apex of the judicial structure. Located in Beijing
Beijing
Beijing , also known as Peking , is the capital of the People's Republic of China and one of the most populous cities in the world, with a population of 19,612,368 as of 2010. The city is the country's political, cultural, and educational center, and home to the headquarters for most of China's...
, it has jurisdiction over all lower and special courts, for which it serves as the ultimate appellate court. It is directly responsible to the National People's Congress Standing Committee, which elects the court president.
China also has 'special' military
Military
A military is an organization authorized by its greater society to use lethal force, usually including use of weapons, in defending its country by combating actual or perceived threats. The military may have additional functions of use to its greater society, such as advancing a political agenda e.g...
, rail transport
Rail transport
Rail transport is a means of conveyance of passengers and goods by way of wheeled vehicles running on rail tracks. In contrast to road transport, where vehicles merely run on a prepared surface, rail vehicles are also directionally guided by the tracks they run on...
, water transport, and forestry
Forestry
Forestry is the interdisciplinary profession embracing the science, art, and craft of creating, managing, using, and conserving forests and associated resources in a sustainable manner to meet desired goals, needs, and values for human benefit. Forestry is practiced in plantations and natural stands...
courts. These courts hear cases of counter-revolutionary activity, plundering, bribery
Bribery
Bribery, a form of corruption, is an act implying money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or...
, sabotage
Sabotage
Sabotage is a deliberate action aimed at weakening another entity through subversion, obstruction, disruption, or destruction. In a workplace setting, sabotage is the conscious withdrawal of efficiency generally directed at causing some change in workplace conditions. One who engages in sabotage is...
, or indifference
Indifference
Indifference may refer to:* Indifference or apathy, a psychological attitude* "Indifference" , an episode of Law & Order* Indifference curve, in microeconomic theory, a graph describing consumer preferences...
to duty that result in severe damage to military facilities, work place, or government property or threaten the safety of soldiers or workers.
Military courts make up the largest group of special courts and try all treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
and espionage
Espionage
Espionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, lest the legitimate holder of the information change plans or take other countermeasures once it...
cases. Although they are independent of civilian courts and directly subordinate to the Ministry of National Defense
Ministry of National Defense of the People's Republic of China
The Ministry of National Defense of the People's Republic of China is a ministry under the State Council. It is headed by the Minister of National Defense. The MND was set up according to a decision adopted by the 1st Session of the 1st National People's Congress in 1954...
, military court decisions are reviewed by the Supreme People's Court. Special military courts were first established in 1954 to protect the special interests of all commanders, political commissars, and soldiers, but they ceased to function during the Cultural Revolution
Cultural Revolution
The Great Proletarian Cultural Revolution, commonly known as the Cultural Revolution , was a socio-political movement that took place in the People's Republic of China from 1966 through 1976...
(1966-76). Military courts and procuratorates were reinstituted in October 1978, and open military trials resumed in December of that year.
In April 1986, at the Fourth Session of the Sixth National People's Congress, the General Principles of the Civil Code was approved as "one of China's basic laws." Consisting of more than 150 articles, the code was intended to regulate China's internal and external economic relations to establish a stable base conducive to trade
Trade
Trade is the transfer of ownership of goods and services from one person or entity to another. Trade is sometimes loosely called commerce or financial transaction or barter. A network that allows trade is called a market. The original form of trade was barter, the direct exchange of goods and...
and attractive to foreign investors. Many of its provisions define the legal status of economic entities and the property rights they exercise. The code clearly stipulated that private ownership of the means of production is protected by law and may not be seized or interfered with by any person or organization. It also recognizes partnerships and wholly foreign-owned or joint-venture enterprises.