The Chinese Judiciary
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Transcript of The Chinese Judiciary
Desmond Wee
PSCI229 China’s Domestic Politics
University of Pennsylvania
Symbol of the Supreme People’s Court (SPC)
Donald Clarke, Peter Murrell, and Susan Whiting, “The Role of Law in China’s Economic Development,” in China’s Great Economic Transformation, (Cambridge University Press, 2008) chapter eleven, pp. 375-428
Problems of China’s 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 coevolutionaryprocess
Have formal legal institutions contributed in an important way to China’s remarkable economic success?
No, but instead…
Economic success has fostered the development of law, rather than the reverse.
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 People’s 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 People’s Court 2001 education case “Reply to Qi Yuling”; 2008 update
[Update:] 2011 Sina Weibo 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
China’s Constitutional Crisis http://www.theatlantic.com/china/archive/2013/09/chinas-constitutional-crisis/279285/
Citizens’ Rights, the Constitution and the Courtshttp://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 Sina Weiboin 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 People’s Court’s Reply to Qi Yuling’s Case http://suffolklawreview.org/wp-content/uploads/2013/01/Tong_AdvancePrint.pdf