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Jurisdiction system in People’s Republic of China
On October 1, 1949, the People’s Republic of China was formally established, with its national capital at Beijing under the leadership of the communist party of China. After the transition period from 1953 to 1957, China had been adopted a legal system that was a more Soviet-influenced system of socialist law (chaos.umd.edu 2008). With the later changes happened within the political, social and economic development, China has gradually migrated to a socialist system of laws with Chinese characteristics (xinhuanet.com 2011). Below we will analyze the legal traditions of the jurisdiction system in People’s Republic of China and also the trend of regionalization as well as the issue of diasporas in the system.
1.1 Legal traditions
The jurisdiction system of People’s Republic of China has adopted the tradition of civil law though it is with its unique features which are quite distinctive from others jurisdiction systems because its foundation is strongly affected by the communism and Confucianism. The key sources of the Chinese legal system cover the Constitution of the People’s Republic of China, civil law, common law, customary law, administrative regulations and international treaties which will be elaborated as following.
1.1.1 Constitution of the People’s Republic of China
The Constitution of the People’s Republic of China which was adopted in year 1982 is considered as the most fundamental law of the state (Lam & Graham 2007, p. 101) and has supreme legal authority as any other rules and regulations could be made ineffective if they are in contradiction with the Constitution of the People’s Republic of China. It is a set of general rules and serves the state as a fundamental charter of organization by affirming the achievements of the struggles of the Chinese people and defining the basic system and fundamental tasks of the country in a legal manner (Chen 1999, p. 57). And obviously, the Constitution of the People’s Republic of China is one of the most fundamental source of the country’s jurisdiction system.
1.1.2 Civil law
Even though China’s first complete Civil Code (in five books) that was enacted by then the KMT government between 1929 and 1930 under strong influence of the Japanese Civil Code (Chen 2008, p. 328) was abandoned by the communist government after the establishment of the People’s Republic of China in 1949, still this did not remove totally the civil law tradition in the country’s legal system. Also, when China followed the former Soviet Union to adopt similar socialist legal system, it is believed that the legal system had a strong French influence which was integrated into the Chinese jurisdiction system in term of obvious civil law tradition (Zhang 2006, p. 30). Now, the China’s legal system is generally considered as being based on Civil Law, with heavy influence from traditional Chinese law, modern Japanese law, and German law (novexcn.com 2000). The most obvious feature of civil law tradition in the China’s legal system is that cases would not be able to provide precedent value and sentences will be made by the judge based on the individual understanding of the relative laws.
1.1.3 Common law
As proposed by Jane Fu (2010, p. 35) the existing jurisdiction system is a mixture of both civil law and common law though with civil law as the most significant. One important source that China has to access to a common law jurisdiction system is Hong Kong which had been the colony under United Kingdom’s ruling for almost one century the maintains the legal system (common law) unchanged after its returning to China. It is believed that since the reform and opening up policy which was applied since the 1980s, China started to look into the common law jurisdictions especially in the areas which are related to the business and economy issues (Epstein 1989, p. 39).
1.1.4 Customary law
As a country with more than five thousand years’ civilization in its history, the effects of customs are powerful in the society which the legal system tend to get adapted to. For example, there are many unofficial laws which have been developed by people as customary law to deal with the matters of common concern. Such customary laws are typically common in the minority races.
1.1.5 Administrative regulations
As distinguished from legislative and judicial authority, administrative authority entails the power to issue rules and regulations based on statutes, grant licenses and permits to facilitate the conduct of government business, initiate investigations of and provide remedies for complaints or problems, and issue orders directing parties to conform to governing statutes or rules (Steinglass & Scarselli 2004). There are two levels of administrative regulations: central government regulations which include rules and regulations for implementation, supplementary provisions, departmental policies and concrete measures formulated by the ministries and commission of the State Council and local government regulations also include another three level of levels: province, region and country level (Yu 2009, p. 57). The administrative regulations which are changing faster and are more flexible are important component of the legal system of China like in many other countries.
1.1.6 International treaties
Though the People’s Republic of China legislation law does not require the country’s laws to be enacted in accordance with China’s obligations under international treaties (Columbus 2003, p. 92), the fact that the ongoing tax reform in the areas of individual income tax, enterprise income tax and value added tax in response to China‘s WTO accession obligations in the area of taxation has suggested that the international treaties has become an increasingly important source of legal system in the country.
1.1.7 Autonomous zone regulations
China’s legal system is still not well developed in terms of Legislation established systems elsewhere but determined efforts are being made to codify and strengthen the law. One of such efforts is to allow the autonomous zones which are ruled by the minority races to enact their own regulations by introducing some changes to the legal systems. These regulations are also considered as part of the legal tradition in the Chinese jurisdiction system in China.
1.1.8 Legal explanations
Another norm which in theory would be incorporated into domestic law immediately upon promulgation is the legal explanation. Because of the highly abstractive and vague words that widely exist in the Chinese laws, the legislation department would do necessary legal explanations to public if there are wide dispute over the laws. The explanation of law could cover every detail of the laws including how they should be applied and who will be applied to. Therefore the legal explanation would be supplementary to the existing legal system and should be considered as the legal tradition of the Chinese jurisdiction systems.
1.2 Regionalization with other countries in the Chinese jurisdiction
Regionalization could be referred as the situation or the process by which economic activities expand beyond a national border and therefore increase the interdependency among the economic actors within a certain regional area beyond the nation states (Nakamura 2009, p. 86). With the ongoing regionalization trend in the economic activities, there has been an increased strong demand in term of regionalization in the jurisdiction systems to deal with the cross broader legal disputes to facilitate the oversea economy cooperation, in particular to China which currently adopts an investment and export driven economic growth mode. Though there is demand for the regionalization with other countries in the Chinese jurisdiction, such trend is not yet evident for three major reasons: firstly, with the collapses of the socialism in a global wide scale, few countries have maintain the socialism resulting in a lack of common ideology based to build up regionalization in term of jurisdiction systems; secondly, the Chinese legal systems are being built up and changed rapidly, even the NPC Standing Committee’s legislation admitted that there are laws that are incompatible with economic and social development (bjreview.com.cn 2011), therefore rapid changes have slowed the trend of regionalization in the legal systems; thirdly, legal independency is a sensitive political issue in China, both the government leaders and common people would need to have more liberalized mind in order to accept the regionalization with other countries in the Chinese jurisdiction of any degree. And currently, the government seems to be putting the effort into the changing of the trading rules and regulations to facilitate the investment and export rather than focusing on an overall regionalization in the Chinese jurisdiction systems.
1.3 Diasporas in the Chinese jurisdiction
The concept of diaspora refers to multi-locationality within and across territorial, cultural and psychic boundaries (Brah 1996, p. 197). According to Webster’s Dictionary in the United States, diaspora refers to a ‘dispersion from’. Hence the word embodies a notion of a centre, a locus, a ‘home’ from where the dispersion occurs (Ashcroft, Griffiths & Tiffin 2006, p. 443). But in China, the influence of Diasporas from foreign countries in the Chinese jurisdiction is little for two major reasons: firstly, though there is not updated data about the number of immigrants in China, according to an earlier report, in Beijing there are 70,000 registered foreigners in 2006, 44 million foreigners entered or left China in the same year (xinhuanet.com 2008), tough these digits are growing rapidly with the fast economy development, foreigners are still in a very small group compared to the large population of China; secondly, changes in the Chinese jurisdiction system for foreigners is not necessary in the current situation and also the people would not accept adaptations of the legal systems for the foreigners and people as well as the government tend to consider the legal system as independent from the foreign interventions. But still since China as the second large economy and one of the fastest growing economy that attract more and more not only investors but also management and lower level labors, the country is on its way to becoming one of the most populous destinations of immigration. Even some people from the United States and European countries have decided to move to China because of the active and positive trend that gives them strength, energy and fresh blood. And therefore, the Diasporas in the Chinese jurisdiction could finally happen though it would not be in the very near future.
But China does have special legal tradition that reflects the minority races’ legal traditions and customs which are different from the Han race (the main race in China) as in China the government adopts favorable policies towards the minorities to create the so called social harmony and focus on the economic development rather than the political dispute and conflicts. For example, China has five special autonomy regions in which the minority races are empowered to rule on their own and enact policy and regulations that could be different from that of other provinces. But the regulations on the exercise of autonomy and other separate regulations of autonomous regions shall be submitted to the Standing Committee of the National People’s Congress for approval before they go into effect according to the Article 116 of the Constitutional Law to make sure that the discrepancies between the regulations and other laws and constitution would not exist.