East China University of Political Science and Law The 14 th Shanghai Winter School

Transcription

1 East China University f Plitical Science and Law The 14 th Shanghai Winter Schl Part 1: Chinese Legal System Part 2: Cnstitutinal Law Readings: Intrductin; Rule f Law and Cnstitutin The Rule f Law in China; Incremental Prcess Part 3: The Criminal Law f the PRC Part 4: The Criminal Prcedure Law f the PRC Readings: Criminal Justice Lawyers Part 5: Chinese Civil Law Readings: Establishing the Truth n Facts: Has the Chinese Civil Prcess Achieved this Gal? Civil Justice in China: An Empirical Study f Curts in Three Prvinces Part 6: Outline f Civil Prcedure Law Readings: Civil law and System Part 7: Chinese Cmpany Law Readings: Crprate Gvernance under the New Cmpany Law (Part 1): Fiduciary Duties and Minrity Sharehlder Prtectin Crprate Gvernance under the New Cmpany Law (part 2) Sharehlder Lawsuits and Enfrcement Part 8: Cntract Law in China Readings: Freign Jint Law: Cntracts Part 9: Cpyright Law Readings: China s Actin Plan n IPR Prtectin 2007 Frm Pirates t Partners (Episde II): Prtecting Intellectual Prperty in Pst-WTO China Part 10: Chinas Freign Investment Laws Part 11: Internatinal Arbitratin in China Part 12: Freign Trade Law f China Page 1 f 101

2 Page 2 f 101 Chinese Legal System 26 th Nvember Xia Fei Assciate Prfessr f ECUPL Peples Republic f China est in includes 23 prvinces, 5 autnmus regins, 4 centrally administered cities, 2 special administrative areas - Ppulatin: fficial numbers 1.3 billin I Traditin and Mdernity i. Mdernisatin, Westernisatin and Indigenizatin Ttally different frm traditinal structure 1911 Republic f China funded China suffered 2 civil wars: nt gd fr develping legal system Peples republic China est. Reviews legal system based n Sviet Unin Mdel Cultural Revlutin: all legal system was destryed S nly in recent 30yrs China has fcused n develping mdern legal system: Learned a lt frm freign cuntries, Sviet Unin, Japan, mre recently US and UK. Need t imprt legal systems frm freign cuntries because mdern legal system was develped in western cuntries. At the same time, China has legal histry f 5000 years. S there is always a debate whether it is mdernisatin r westernisatin. Prfessr He Qinhua (President f ECUPL) says we shuld imprt freign legal systems, because china culture will still influence t an extent. Prfessr Zhu Suli (dean f Peking Uni Law Schl) wants t place mre emphasis n Chinese histric legal systems. Eg in certain areas we shuld allw traditinal custms t exist. ii. Rule f Law and Rule f Man Lng histry f rule f man (emperr), nt rule f law Cnfucianism: everyne is brn in gd nature, s everyne shuld be a gd persn if they are cultivated t be a gd persn, s dn t need rule f law 3 Guiding Principles and 5 Cnstant Virtues: 3 Principles are (1) Husband is the principles f wife (2) Father is principle f sn (3) Emperr is the principle f subjects (peple) 3 Virtues: Kindness, Righteusness, prprietary, wisdm, fidelity Cultivatin f a persn (Xia Shen). Regulatin f nes family (Qu Jia). Ordering well f nes states (Zhi Gu) Making whle wrld tranquil and happy (Ping Tian Xia) Cnfucianism made peple sacrifice their wn interests fr thers Li (Ethic) Fa (Law). Will be punished by criminal law fr breaking virtues. There was n civil law in ld china. Idea that law is just fr the bad guys cause the gd guys bey the law and wnt get in truble with the law S basically the law just meant punishment. Many peple tday in China still dn t think abut the law t help them redress their cncerns: they turn t peple t help them instead (influenced by the rule f men) iii. Rights f individual r Rights f State Lng time in china n attentin t individual rights; shuld sacrifice wn rights fr the public/state interests. S presumptin f inncence r right f silence nt really imprtant. S it s hard fr china t develp mdern Chinese legal system. II Gvernment Structure (als see p.10 legislatin: Cnstitutin Stipulates Structure) Three levels

3 1. Central Gvt 2. Lcal Gvt i. Prvincial Level Prvinces (23), Autnmus Regin (5), Special Municipalities (4), Special Administrative Regin (2) ii. Prefecture Level (333) iii. Cuntry Level (2862) Page 3 f 101 NB: Cmmunist Party is in REALITY the HIGHEST Central cmmittee f the CCP cnstitutes the verarching plitical authrity in China: Party trumps gvt (at all levels) Cntrls all imprtant gvt, ecnmic and cultural institutins in China; party cmmittees wrk t see that party plicy is fllwed and nn-party members d nt create autnmus bdies - Natinal Peples Cngress (Highest Level highest rgan f state pwer: A57CC) Chinas parliament - ratifies laws; has versight and respnsibility fr State Cuncil and curts; largely a rubber stamp Standing cmmittee f the NPC acts when NPC nt in sessin Natinal Peples Cngress - Its permanent bdy is the Standing cmmittee f the NPC. President f PRC (Hu Jinta) State Cuncil (Wen Jiab Premier) Supreme Peples Curt (Xia Yang) Supreme Peples Prcuratrate (Prcuratr General Jian Chainwang) Central Military Cmmissin Deputies f the 10 th NPC (2985): CPC Members (72.99%), Wmen (20.24%), Ethnic Minrities (13.91%), Wrkers and Peasants (18.46%), Intellectuals (21.14%), Gvt Officials (32.44%) Standing Cmmittee (A65 CC, functins A67) Special Cmmittees a. Cmmittee n Finance and Ecnmy b. Cmmittee n Edu, Science, Culture & public Health c. Law Cmmittee (drafting bills) d. Natinalities Cmmittee e. Cmmittee n Internal and Judicial Affairs f. Cmmittee n the Prtectin f Envirnment and Resurces g. Cmmittee n Agriculture and Rural Areas Pwers (A62 CC) a. Legislatin Pwer (a) T amend the Cnstitutin (b) T supervise the enfrcement f the Cnstitutin (c) T enact and amend basic statutes (eg crim & civil law) S NPC can annunce that certain laws are uncnstitutinal (althugh it rarely happens). S critics say they dn t supervise enfrcements f cnstitutin. b. Appintment Pwer (a) T elect the President and the vice president f the PRC (b) T decide n the chice f the premier f the State Cuncil, Vice Premiers, State cuncillrs, Ministers, the Secretary General f the State Cuncil upn nminatin by the Premier, (c) T elect the chairman f the Central Military Cmmissin (d) T elect the President f the Supreme Peples Curt (e) T elect the Prcuratr-General Imprtant Scial Affairs

4 a. The plan fr natinal ecnmic and scial develpment b. State budget c. The est f prvinces, autnmus regins, and special municipalities d. Est f special admin regins e. War and peace - Chinese Peples Cnsultative Cmmittee Parliamentary advisry bdy; functins in an advisry rle t represent nn-party interests; lacks frmal decisin-making pwer, but acts t sme extent as public frum - State Cuncil (A85 p.13 Legislatin) In charge f ministries, bureaus and cmmissins; functins as administratr and regulatr f Chinas day t day gvt functins The State Cuncil, that is, the Central Peples Gvernment f the PRC, is the executive bdy f the highest rgan f state pwer, it is the highest f state administratin. Functins and pwers: A89 CC Cmpsed f the fllwing:! Premier (verall respnsibility)! Vice-Premier! State Cuncillrs! Secretary-General! Ministers and directrs Ministries and Cmmissins (28) Ministry f Public Security Ministry f Justice Respnsibility f Ministry f Justice i. T manage prisns ii. Regulate lawyers and Public Ntaries iii. Manage Legal Educatin iv. Direct Peple s Mediatin Cmmittees Supreme Peples Curt Supreme Peples Prcuratrate Reprts directly t the NPC Standing Cmmittee; respnsible fr natinwide legal supervisin Prcuratrate System (p.16 Legislatin) Functin State Organs fr legal supervisins t investigate sme types f criminal cases t prsecute criminal cases t exercise supervisin ver the investigative activities f public security rgans t exercise supervisin ver the judicial activities f peples curts t exercise supervisin ver the executin f judgments and rders in criminal cases ver the activities f prisns, detentin huses t deal with petitins f effected judgments (criminal and civil) Fur Levels f Prcuratrate System Prcuratrial Cmmittees Created by CC, nt statutry law Cnsidered a judicial rgan as much as the curt; judicial interpretatin includes the interpretatin released by the Peples Prcuratrate III Surces f Law 1. Cnstitutin Mther Law (see cnstitutin lecture belw) Page 4 f 101

5 Law 1. Basic Law enacted by NPC Criminal Cde, Criminal Prcedure Law, Prperty Law, Civil Prcedure Law, Law n Administrative Punishment General Principles f Civil Law 2. Law enacted by NPC Standing Cmmittee Administrative Regulatins and Guizhang Enacted by the State Cuncil r its ministries and cmmissins 4. Lcal regulatins and Guizhang Lcal peples cngresses and lcal gvts f (1) prvincial level (2) big cities: capital cities f prvinces and autnmus areas, cities with special ecnmic zne and ther cities specified by the State Cuncil Internatinal Treaties Mnist r Dualist? Article 142 f the General Principles f Civil Law f PRC The applicatin f law in civil relatins with freigners shall be determined by the prvisins f the CHAPTER If any internatinal treaty cncluded r acceded t by the Peples Republic f China cntains prvisins differing frm thse in the civil laws f the Peples Republic f China, the prvisins f the internatinal treaty shall apply, unless the prvisins are nes n which China has annunced reservatins. Interpretatin f Laws (1) Legislative interpretatin: NPC Standing Cmmittee can give interpretatin (2) Judicial Interpretatin: The Supreme Peple s Curt and the Supreme Peple s Prcuratrate. (3) Administrative interpretatin: State Cuncil and its Departments (4) Interpretatin f Lcal Regulatin What are the rules f interpretatin? - Special prevails ver general - New prevails ver ld - N retrspective applicatin exceptin where special prtectin is prvided (A84) - Where new general rule cnflicts with ld special prvisin, NPC Standing Cmmittee f NPC r State Cuncil may make a determinatin. Cases? N abslute answer t this Case: Rape in Marriage. In 1997 Pf initiated a law suit against her husband fr divrce, had been separated fr 1 year. Divrce permitted. Judgment nt effect because 15 days t appeal. Within these 15 days husband went t wife s apartment and raped her. (s at that pint they were still married). Curt fund husband guilty because f very specific situatin Case: Rape in Marriage. Same judge. Fund fr wife again. NB: nt bund by previus decisins, but can d s if judge wishes. IV: Judicial System (Sectin 7 CC, p 16 Legislatin) Judiciary - Supreme Peples Curt directly under the NPC Standing Cmmittee. President elected by NPC - CC gives right t judicial independence - Judges have right t be free f external interference in their wrk Page 5 f 101

6 Page 6 f SC supervises admin f justice at lwer levels (A127 CC) BUT - s128 CC curts respnsible t rgans f state pwer which created them - Curts subject t dual system ie CCP interference - Prcuratrate has right t exercise supervisin ver judiciary - Funding frm gvt at same level as curts - The Curts are art f the gvt structure answerable t the NPC, nt an independent branch f gvt. The standing cmmittee f the NPC, nt the Supreme Peples Curt (SPC) has the authrity t interpret natinal law. Judges are suppse t merely apply the law. - Where the law is vague r plitically sensitive issues are invlved, gvt fficials and the Party may intervene thrugh curt based adjudicatin cmmittees that supervise judge s wrk and ther means, and the curts may even decline t accept jurisdictin ver cases. - Judges are appinted and remunerated by the same-level peples cngress, which exasperates the prblem f lcal prtectinism and plitical influence. Judicial independence is mre a slgan that a reality in tday s China. 1. Curt System (4 Levels) " Highest Curt: Supreme Peples Curt " 2 nd Level: High Peples Curts + PLA Curt " 3 rd Level: Maritime Curts, Intermediate Peples Curts, Intermediate Railway Transprtatin curts, Great Military Regin Curts " Lwest Curt: Basic Peples Curts, Basic Railway Transprtatin Curts, Basic Military Curts 2. Respnsibilities / Jurisdictin Basic curts Respnsibilities: Try criminal, civil and admin cases as curts f first hearing, except where therwise prvided fr by law Intermediate Curts Respnsibilities Try criminal cases that may invlve life imprisnment r the death penalty; criminal cases cmmitted by freigners r cases invlving Chinese citizens vilating the lawful rights and interests f freigners Try freign related civil cases Try imprtant admin cases Hear cases appealing r prtesting the verdicts and decisins f basic curts. High Peples Curts Respnsibilities Try 1 st instance cases which are cnsidered imprtant cases in prvinces Hear appeals frm the intermediate curts Supreme Peples Curt s Respnsibilities Hear appeals frm High Peples Curts Try first instance cases which are imprtant cases in natinal level Prmulgate judicial interpretatins Review death sentences iv. In 1980 n f crimes increased rapidly s gvt decided t get tugh n crime. S pwer f review was transferred t higher curt fr serius ffences. Nt until this year, Supreme Curt has taken the pwer back. Internal Structure f a Curt Different divisins: criminal divisin, civil divisin, ecnmic divisin, admin divisin, divisin handling petitins Judges: president, vice-resident, cj, assciate CJ, judge & assistant judge

7 Trial Organisatin Trial by single judge Trial by cllegiate bench (at least 3 judges, cmbinatin f judges and assessrs, members appinted n case by case basis, president f the curt will designate judge t be the presiding judge) Adjudicative cmmittee Peples Assessr s System (ie jury) May 2005: Decisin f the Standing Cmmittee f the Natinal Peple s Cngress Regarding Perfecting the System f Peples Assessrs Arguments maintain r ablish Value: Demcracy Justice Supervisin f Judges Prblems in Practice The System exists nly in frm Curts unwillingness t have assessrs in bench Citizens unwillingness t be an assessr Cases which are heard by the cllegiate bench f judges and peple s assessrs Imprtant criminal, civil and admin cases that have a substantial impact n sciety The Df in criminal cases, the pf and the df in civil cases and the pf in admin cases apply fr being heard by cllegiate bench f judges and peple s assessrs Selectin Qualificatin: Uphld the cnstitutin, ver 23, gd mral character, healthy, with cmmunity cllege diplma (althugh nt essential) Prcedure f selectin: t be recmmended by the wrk unin r t apply persnally; t be selected by the curts and judicial admin departments f same level; t be appinted by the Peple s cngress f the same level Rle Same as judge-bth in fact and law Arguments: lay ppl r elite v. Zhengzhu: migrant peple were selected as peples assessrs Trial Organisatin Trial by single judge Trial by cllegiate bench Adjudicative cmmittee This yr SC has decided adjudicative cmmittee shuld hear the cases themselves. V. Criminal Justice System 1. Tw Kinds f Offences a. Offence which are against the Criminal Law i. Criminal Cde f PRC (enacted in 1979, amended in 1997). These are called crimes. b. Public Order ffences which are against the Public Order Administratin Punishment Law (enacted in 2005) Mre minr, similar t misdemeanur. 2. Criminal Prcedure (see belw) 3. Public Security Bureau Shape and Organisatin Ministry f Public Security State Cuncil Shanghai Municipal Public Security Bureau (SMPSB) Shanghai Municipal Gvt Page 7 f 101

8 Page 8 f 101 Branches f SMPSB- District Gvt Plice Strength Smaller ratin f plice and citizens than in Aust & USA What d the Plice D? Prfessr Wang Dawei f the Chinese Peples Public Security say they are lw paid, verwrked etc. Criminal Investigatin Public Order Administratin vi. Patrlling vii. Licence Management viii. Husehld Registratin and ID Registratin ix. Cntrl f Dangerus and Cntraband Items x. Traffic Cntrl xi. Cntrl f Entry and Exit f Citizens and Aliens xii. Investigatin and Punishment f Public Order Offences 2. Public Order Offences Types f Public Order Offences Offences f Disturbing Public Order Offences f Endangering Public Security Offences f Infringing upn Citizens Right f the Persn and f the Prperty Offences f Obstructing the Administratin f Public Order Types f Punishment Warning Fine ( RMB) Admin Detentin 1 15 days Suspensin f Licence Prisn System Different Prisns; male adult prisn; female adult prisn, penitentiaries fr juvenile delinquents, Principles: (1) Cmbining penalty with refrm; (2) educatin with labur. Refrm f Criminal Justice 1. Prtectin f Defendants rights 2. Presumptin f inncence: (instead they just make decisins n the fact and accrding t law ) Currently trying t amend CP law; issues cncerning presumptin f inncence, right sil, 3. Right f silence: can refuse t answer qu s which aren t relevant t the case but it s hard t tell what is relevant t the case. 4. Rle f lawyer Inquisitrial system t adversary system VI: Legal Prfessin Natinal Judicial Exam Candidates General academic requirement: a graduate f law frm an institutin f higher learning, r a nn-law graduate frm an institutin f higher learning with in depth knwledge f law. Certificate f Legal Prfessin Qualificatin Natinal certificate Reginal Certificate Judges Qualificatin A citizen f the Peples Republic f China At least 23 years f age

9 Supprts Appintment The presidents f curts are elected and remved by the peples cngress at the same level Vice-presidents, CJ;s, Assciate CJ s, members f adjudicative cmmittees and judges are nminated by the presidents f curts and appinted and remved by SCPC Assistant judges are appinted Lawyers Licence Legal prfessinal certificate Practice training in a law firm fr at least 1 year Being a persn f gd character and cnduct - Althugh they have t pass bar exam and cme frm uni, SPC reprts that nly 40% f judges tday hld a university degree and the quality f judicial persnnel utside majr cities like Beijing and Shanghai is very uneven. Lw salaries cntribute t widespread crruptin. Dn t have t prvide reasns fr decisins. Readings: Lawyers Chinas Legal Prfessin: The Nascence and Grwing Pains f a Prfessinalized Legal Class - The transfrmatin f China s traditinal plitical and legal system was als achieved under pressure frm western pwers (p.273) - As a reflectin f the histrical lessn f the Cultural Revlutin and in an effrt t restructure the legitimacy f the rule f the CPP, scialist demcracy and rule f law were prpsed in late 1970 s. - First unified judicial exam was held in After an almst 30 year interruptin ( ) Chinas legal system again pays hmage t Cntinental style. - The newly amended civil and criminal prcedure laws bth adpt the adversary system int Chinese legal practice. - Althugh increase in n f law schls is gd, questins abut quality. China has far t many law students. - Openness is essential t Chinese legal develpment. Draft Lawyers Law Allws the Get License Withut Examinatin (August 2007) - Prpsal that experts with a bachelrs degree r higher, wh have been engaged in law research and educatin fr 20yrs, r prfessinals wh have been wrking in finance, intellectual prperty rights and infrmatin technlgy sectrs fr 20 years, can apply fr a lawyers license withut examinatin. Freign Jint Venture: Lawyers (p.380) - Legal educatin emphasizes the study f abstract legal cncepts imprted frm abrad and memrizatin f legal rules rather than critical thught abut thse cncepts and rules. Page 9 f 101

10 The Cnstitutin f China 27 th Nvember 2007 Brief Histry 4 Cnstitutins; cause ii Cnstitutin Enacted after the Peples Republic f China was funded. By Chairman Ma. Transitinal dcument. S was temprary Said that fur frms f wnership are prtectin by law (1) state wnership (2) Cllective wnership (3) private wnership & (4) capitalist wnerships In 1957 all prducts were natinalised s there was n private r capitalist wnership: s at this pint 1954 cnstitutin was ut f date Anti-Righteus mvement: western style anything criticised and punished. iii Cnstitutin Prduct f the plitical mvement, emphasised class struggle. All legal ideas etc had been destryed (n law and rder). S CC reflects this iv Cnstitutin Just after Cultural Revlutin, s still reflected class struggle idelgy. v Cnstitutin General principle f fundamental rights & duties f citizens, structure f state, natinal flag etc. 4 Amendments since, such as: 1988 Amendment permitting private sectr t exist, but is a cmplement t scialist public ecnmy. (hwever, if yu have mre than 8 emplyees then nt allwed cause cnsidered t capitalist 1993 Amendment saying that state practices sciality market ecnmy 1999 Amendment:! The Peples Republic f China gverns the cuntry accrding t law and makes it a scialist cuntry rules by law! The nn-public sectrs f the ecnmy such as the individual and private sectrs f the ecnmy, perating within the limits prescribed by law, cnstitute an imprtant cmpnent f the scialist market ecnmy. (n lnger just a cmpliment like in 1988) 2004 Amendment:! The state prtects the lawful rights and interests f the nn-public sectrs f the ecnmy, including the individual and private sectrs f the ecnmy. The state encurages, supprts and guides the develpment f the nn-pubic sectrs f the ecnmy and exercises supervisin and cntrl ver the nn-public sectrs accrding t law.! The state respects and prtects human rights! The state may, fr the public interest, exprpriate r take ver land fr public use, and pay cmpensatin in accrdance with the law. Preamble f the Cnstitutin reflects Chinas histry: s Opium war: war between China and GB. 2. Qing Dynasty 3. Capitalist 4. Scialist - Semi clnial and semi feudal (feudalism means emperr system, imperial is western, bureaucratic capitalism is regin rules by Sun Zhang Shan) - 2 regins in china that cexisted: the Republic f China (funded by Sun Zhang Shan) ruled by Gu Min Tang which std fr interests f rich peple and Cmmunist Party lead by Chairman Ma which put emphasis n changing cnditins f pr peple. Page 10 f 101