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China practices the rule by law rather than the rule of law. Law, in this approach, is more a tool for controlling society than for controlling the government. The rule by law is a big change from the previous rule by man and by power. The rule by law lies at the core of modernization and the ability of any state to govern efficiently in todays world. Laws should be applicable to all people and departments, irrespective of power or position. And they should be enforceable by independent judicial authorities.

Thoughts of rule by law was proposed by the Legalists during the debate with rule by propriety of the Confucianists in pre-Qin period, which was combined with the national strategy of enriching the country and increasing the military force during the Warring States period, and the legal practices of reform and survival appeared one after another. The establishment of Qin Empire was a milestone of the thoughts and practice of rule by law. Qin blended authoritarianism into rule by law, developed heavy penalties thoughts of the Legalists to the extreme and moved to barbarous and horror circumstances of advocating violence and abusing killing. From the Han Dynasty all the way to the Qing Dynasty, rule by law and rule by man were exercised by various dynasties, mostly in combination.

Resistance from vested interest groups to an independent and fair judiciary is inevitable. Success will require that prosecutorial and judicial authorities become more professional, and that they be insulated from the interventions of power and money, especially at the city and county levels. But the system is incomplete, and the rulers themselves remain above the law.

Having laws to go by is the premise of establishing the country under the rule of law. Over the years since People's Republic of China was founded, China's legal construction has made notable achievements. During the Cultural Revolution, China's legal system was severely destroyed. Then in 1978 after the practices of the Cultural Revolution were revised, the CPC (Communist Party of China) decided to strengthen construction of legal system to safeguard democracy and promote the institutionalization and legalization of democracy, with the aim that there are laws to go by, the laws are observed and strictly enforced, and law-breakers are prosecuted.

Thus China's legal construction embraced a golden time of development. After that, a series of laws including the current Constitution, Criminal Law, Criminal Suit Law, General Principles of the Civil Law, Civil Procedure Law, and Administrative Procedure Law were enacted. During that period, China altogether enacted and amended 94 laws and 598 administrative regulations, basically ended the situation that people have no laws to abide by in many areas.

A socialist legal system with Chinese features was preliminarily formed. The Report of the 15th National Congress of the CPC in 1997 and Amendment to the Constitution in 1999 formally defined "building socialist country ruling by law" as one major policy. A socialist legal system with Chinese features was preliminarily formed.

The judiciary in China carries high corruption risks for business. The Chinese Communist Party (CCP) rejects the principle of separation of powers and does not provide for an independent judiciary. Judges receive guidance from the government and the ruling party regularly, particularly when it comes to politically sensitive cases. Lower-level courts are particularly susceptible to outside influence and corruption, and they operate in an opaque manner. Local governments appoint and pay judges, which can result in biased, vague or poorly enforced decisions. The legal system is not efficient in settling disputes and challenging regulations, but enforcing contracts is faster and much less expensive than the regional average. Despite that a high number of prosecutions have been carried out in the last couple of years in China, some judgements were often not enforced against powerful special entities, such as government departments, state-owned enterprises, military personnel and some members of the Communist Party of China.

Chinas peoples court system consists of courts at four levels: namely the grassroots, intermediate, higher and supreme peoples courts, in addition to special courts such as the military, railway and water transportation courts. Grassroots courts refer to tribunals in counties/autonomous counties, cities without administrative districts, or administrative districts of cities; intermediate courts are set up in prefectures, cities directly under provinces (also autonomous regions and municipalities directly under the Central Government); higher courts are those set up in provinces (also autonomous regions and municipalities directly under the Central Government).

The Supreme Peoples Court is the highest trial organ in the country and exercises its right of trial independently. It is also the highest supervising organ over the trial practices of local peoples courts and special peoples courts at various levels. It reports its work to the National Peoples Congress and its Standing Committee. The right of appointment and removal of the president and vice presidents as well as members of the trial committee of the Supreme Peoples Court lies with the National Peoples Congress.

Regulations of the SPC require trials to be open to the public, with the exception of cases involving state secrets, privacy issues, minors, or, on the application of a party to the proceedings, commercial secrets. Authorities used the state secrets provision to keep politically sensitive proceedings closed to the public, sometimes even to family members, and to withhold defendants access to defense counsel. Court regulations state that foreigners with valid identification should be allowed to observe trials under the same criteria as citizens, but foreigners were permitted to attend court proceedings only by invitation.

Special courts are a component part of the peoples court system and jointly implement the state right of trials with local peoples courts at different levels. The difference of the special courts from local peoples courts lies in the following aspects:

  1. Special courts are trial organs set up according to specified organizations or specified ranges to deal with cases while the local courts are trial organs set up according to administrative divisions;
  2. Cases dealt with by special courts are of special nature which means in nature these cases are different from those tried by local peoples courts; and
  3. The setup of the special courts and the appointment and removal of the staff of the special courts are also different from those of local peoples courts. For instance, the president of the military court is not elected by the peoples congress but jointly appointed by the SPC and the Central Military Commission.

Special courts include the military court, maritime court, railway transportation court, forestry court, agricultural reclamation court and petroleum court.

Chinas trial system follows a two-hearing system in the trial process. The entire system of peoples courts constitutes a four-level, two-hearing process. When litigants are not satisfied with the verdict made by any of the local peoples courts at various levels after the court has gone through a first-hearing trial of the case within its jurisdiction, they may appeal to a court of the immediate higher level within the time limit prescribed by law. The court at the next higher level reviews the appeal and passes its judgment which constitutes the verdict of the second hearing. According to the trial system, the verdict of the second hearing is the final decision against which the litigant shall not appeal. The SPC is Chinas highest trial organ and all of its decisions on the first- and second-hearing cases are final and shall be enforced once they are promulgated.

Although the law states that the courts shall exercise judicial power independently, without interference from administrative organs, social organizations, and individuals, the judiciary did not, in fact, exercise judicial power independently. Judges regularly received political guidance on pending cases, including instructions on how to rule, from both the government and the CCP, particularly in politically sensitive cases. The CCP Central Political and Legal Affairs Commission has the authority to review and direct court operations at all levels of the judiciary. All judicial and procuratorate appointments require approval by the CCP Organization Department.

Corruption often influenced court decisions, since safeguards against judicial corruption were vague and poorly enforced. Local governments appointed and paid local court judges and, as a result, often exerted influence over the rulings of those judges. A CCP-controlled committee decided most major cases, and the duty of trial and appellate court judges was to craft a legal justification for the committees decision.

Although the amended criminal procedure law reaffirms the presumption of innocence, the criminal justice system remained biased toward a presumption of guilt, especially in high-profile or politically sensitive cases. According to the March work report submitted to the National Peoples Congress (NPC) by the Supreme Peoples Court (SPC), more than 1.2 million individuals were convicted while 1,039 were acquitted in 2015. The low acquittal rate of less than 1 percent has persisted for many years, although the overall number of acquittals during the year rose from the 778 recorded in 2014.

In many politically sensitive trials, courts announced guilty verdicts immediately following proceedings with little time for deliberation. Courts often punished defendants who refused to acknowledge guilt with harsher sentences than those who confessed. The appeals process rarely reversed convictions and failed to provide sufficient avenues for review; remedies for violations of defendants rights were inadequate.

The government suspended or revoked the business licenses or law licenses of those who took on sensitive cases, such as defending prodemocracy dissidents, house-church activists, Falun Gong practitioners, or government critics. Authorities used the annual licensing review process administered by the All China Lawyers Association to withhold or delay the renewal of professional lawyers licenses.



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