China is the world's largest country in population and the third largest in land area. China has the world's oldest living civilization. Its written history goes back about 3500 years. Since China is open its market to international investors in 1980s, the Chinese Economy has experienced an annual growth rate of about 10%. China's global economic importance will certainly continue to increase, and it represents what may be the world's largest experiment in contrasting development strategies. Meanwhile, the declining environment of China has become a globe concern. China is a unique laboratory which brings together a rich mixture of ecological, ethnic, economic, cultural, and other factors. China also provides a unique case for examining the processes and consequences of the contrasting nature of regional economics and differentials in their rates of development, which can help our understanding of complex interactions between population growth, economic development, and resource and environmental mobilization and management. Collaborated with scholars from various fields, this project will develop a multi-dimension framework in space and time to help students a better understanding in the characteristics of environment, natural resources, population, economic development and culture of China.
The greater part of the country is mountainous. Its principal ranges are the Tien Shan, the Kunlun chain, and the Trans-Himalaya. In the southwest is Tibet, which China annexed in 1950. The Gobi Desert lies to the north. China proper consists of three great river systems: the Yellow River (Huang He), 2,109 mi (5,464 km) long; the Yangtze River (Chang Jiang), the third-longest river in the world at 2,432 mi (6,300 km); and the Pearl River (Zhu Jiang), 848 mi (2,197 km) long.
Linguistic Affiliation. Mandarin Chinese is the official language. It is also called Putonghua and is based on the Beijing dialect. Modern spoken Chinese, which replaced the classical language in the 1920s, is called bai hua. The writing system has not changed for thousands of years and is the same for all the dialects. It is complex and difficult to learn
Land area: 3,600,927 sq mi (9,326,411 sq km); total area: 3,705,407 sq mi (9,596,960 sq km)1
Population (2009 est.): 1,338,612,968 (growth rate: 0.6%); birth rate: 14/1000; infant mortality rate: 20.2/1000; life expectancy: 73.4; density per sq mi: 142
Capital (2003 est.): Beijing, 10,849,000 (metro. area), 8,689,000 (city proper)
Largest cities: Shanghai, 12,665,000 (metro. area), 10,996,500 (city proper); Tianjin (Tientsin), 9,346,000 (metro. area), 4,333,900 (city proper); Wuhan, 3,959,700; Shenyang (Mukden), 3,574,100; Guangzhou, 3,473,800; Haerbin, 2,904,900; Xian, 2,642,100; Chungking (Chongquing) 2,370,100; Chengdu, 2,011,000; Hong Kong (Xianggang), 1,361,200
Monetary unit: Yuan/Renminbi
History
The earliest recorded human settlements in what is today called China were discovered in the Huang He basin and date from about 5000 B.C. During the Shang dynasty (1500–1000 B.C. ), the precursor of modern China's ideographic writing system developed, allowing the emerging feudal states of the era to achieve an advanced stage of civilization, rivaling in sophistication any society found at the time in Europe, the Middle East, or the Americas. It was following this initial flourishing of civilization, in a period known as the Chou dynasty (1122–249 B.C. ), that Lao-tse, Confucius, Mo Ti, and Mencius laid the foundation of Chinese philosophical thought.
The feudal states, often at war with one another, were first united under Emperor Ch'in Shih Huang Ti, during whose reign (246–210 B.C. ) work was begun on the Great Wall of China, a monumental bulwark against invasion from the West. Although the Great Wall symbolized China's desire to protect itself from the outside world, under the Han dynasty (206 B.C.–A.D. 220), the civilization conducted extensive commercial trading with the West.
In the T'ang dynasty (618–907)—often called the golden age of Chinese history—painting, sculpture, and poetry flourished, and woodblock printing, which enabled the mass production of books, made its earliest known appearance. The Mings, last of the native rulers (1368–1644), overthrew the Mongol, or Yuan, dynasty (1271–1368) established by Kublai Khan. The Mings in turn were overthrown in 1644 by invaders from the north, the Manchus.
China, one of the countries that can boast of an ancient civilization, has a long and mysterious history - almost 5,000 years of it! Like most other great civilizations of the world, China can trace her culture back to a blend of small original tribes which have expanded till they became the great country we have today.
It is recorded that Yuanmou man is the oldest hominoid in China and the oldest dynasty is Xia Dynasty. From the long history of China, there emerge many eminent people that have contributed a lot to the development of the whole country and to the enrichment of her history. Among them, there are emperors like Li Shimin (emperor Taizong of the Tang), philosophers like Confucius, great patriotic poets like Qu Yuan and so on.
Chinese society has progressed through five major stages - Primitive Society, Slave Society, Feudal Society, Semi-feudal and Semi-colonial Society, and Socialist Society. The rise and fall of the great dynasties forms a thread that runs through Chinese history, almost from the beginning. Since the founding of the People's Republic of China on October 1st, 1949, China has become a socialist society and become stronger and stronger.
List of Chinese Dynasties
| Chinese Dynasties | Period |
 Prehistoric Times | 1.7 million years - the 21st century BC |
| Xia Dynasty | 21st - 17th century BC |
| Shang Dynasty | 17th - 11th century BC |
| Zhou Dynasty | Western Zhou (11th century BC - 771 BC) |
| Eastern Zhou ---- Spring and Autumn Period (770 BC - 476 BC) ---- Warring States Period (476 BC - 221 BC) | |
| Qin Dynasty | 221 BC - 207 BC |
| Han Dynasty | Western Han (206 BC - 24 AD) |
| Eastern Han (25 - 220) | |
| Three Kingdoms Period | 220 - 280 |
| Jin Dynasty | Western Jin (265 - 316) |
| Eastern Jin (317 - 420) | |
| Northern and Southern Dynasties | Northern Dynasties (386 - 581) |
| Southern Dynasties (420 - 589) | |
| Sui Dynasty | 581 - 618 |
| Tang Dynasty | 618 - 907 |
| Five Dynasties and Ten States | Five Dynasties ---- Later Liang (907 - 923) ---- Later Tang (923 - 936) ---- Later Jin (936 - 946) ---- Later Han (947 - 951) ---- Later Zhou (951 - 960) |
| Ten States (902 - 979) | |
| Song Dynasty | Northern Song (960 - 1127) |
| Southern Song (1127 - 1279) | |
| Liao Dynasty | 916 --- 1125 |
| Jin Dynasty | 1115 --- 1234 |
| Yuan Dynasty | 1271 --- 1368 |
| Ming Dynasty | 1368 --- 1644 |
| Qing Dynasty | 1644 --- 1911 |
Religions & Beliefs in China
Confucianism, Taoism and Buddhism are the three major religions in China, although it is true to say that Confucianism is a school of philosophy rather than a religion.
Generally speaking, Chinese people do not have a strong religious inclination but despite this the three main faiths have had a considerable following. The fact that Confucianism is a philosophy rather than religion meant that it became the orthodox doctrine for Chinese intellectuals in the days of the feudalist society. However, these intellectuals did not stick to their doctrine as a believer clings to his belief. Someone summarized the true attitude of Chinese intellectuals as - they followed the teachings of Confucius and Mencius when they were successful but would turn to Taoism when they were frustrated.
FOOD AND ECONOMY
Food in Daily Life. Rice is the dietary staple in most of the country. In the north and the west, where the climate is too dry to grow rice, wheat is the staple grain. Here, breakfast usually consists of noodles or wheat bread. In the south, many people start the day with rice porridge, or congee, served with shrimp, vegetables, and pickles. Lunch is similar to breakfast. The evening meal is the day's largest. Every meal includes soup, which is served as the last course.
People cook in a wok, a metal pan with a curved bottom; this style of cooking requires little oil and a short cooking time. Steaming in bamboo baskets lined with cabbage leaves is another cooking method. Meat is expensive and is served sparingly.
The cuisine can be broken down into four main geographic varieties. In Beijing and Shandong, specialties include Beijing duck served with pancakes and plum sauce, sweet and sour carp, and bird's nest soup. Shanghaiese cuisine uses liberal amounts of oil and is known for seafood and cold meat dishes. Food is particularly spicy in the Sichuan and Hunan provinces. Shrimp with salt and garlic, frogs' legs, and smoked duck are popular dishes.
Neighborhood houses in Dali reflect traditional Chinese urban architecture.
The southern cuisine of Canton and Chaozhou is the lightest of the four. Seafood, vegetables, roast pork and chicken, and steamed fish are served with fried rice. Dim sum, a breakfast or lunch meal consisting of a combination of different appetizer style delicacies, is popular there.
Cooking reflects the country's history of famines caused by factors such as natural disasters and war. The Chinese eat parts and species of animals that many other cultures do not, including fish heads and eyeballs, birds' feet and saliva, and dog and cat meat.
Tea is the most common beverage. The Han drink it unsweetened and black, Mongolians have it with milk, and Tibetans serve it with yak butter. The Chinese are fond of sugary soft drinks, both American brands and locally produced ones. Beer is a common beverage, and there are many local breweries.
Food Customs at Ceremonial Occasions. Special occasions and large family gatherings often entail big, elaborate meals. In the north, dumplings called jiaozi are served at the Spring Festival and other special occasions. For the Moon Festival in midautumn, "moon cakes" are served, baked pastries filled with ground sesame and lotus seeds or dates. Banquets originating in the imperial tradition are ceremonial meals common to important state gatherings and business occasions. They usually are held at restaurants and consist of ten or more courses. Rice is not served, as it is considered too cheap and commonplace for such an event.
Basic Economy. In 1978, the country began the slow process of shifting from a Soviet-style economy to a more free market system, and in twenty years managed to quadruple the gross domestic product (GDP) and become the second largest economy in the world. However, the decentralization of the economy has often conflicted with the tight reign exercised by the highly centralized political system. The economy is burdened with widespread corruption, bureaucracy, and large state-run businesses that have been unable to keep pace with economic expansion. Inflation rates, which rose steeply in the 1980s, fell between 1995 and 1999 as a result of stricter monetary policies and government control of food prices. While the economy appears to be improving, the standard of living in rural areas remains poor, and the government faces problems collecting taxes in provinces that are becoming increasingly autonomous, such as Shanghai and Guangzhou.
China's economy during the past 30 years has changed from a centrally planned system that was largely closed to international trade to a more market-oriented economy that has a rapidly growing private sector and is a major player in the global economy. Reforms started in the late 1970s with the phasing out of collectivized agriculture, and expanded to include the gradual liberalization of prices, fiscal decentralization, increased autonomy for state enterprises, the foundation of a diversified banking system, the development of stock markets, the rapid growth of the non-state sector, and the opening to foreign trade and investment. Annual inflows of foreign direct investment rose to nearly $108 billion in 2008. China has generally implemented reforms in a gradualist or piecemeal fashion. In recent years, China has re-invigorated its support for leading state-owned enterprises in sectors it considers important to "economic security," explicitly looking to foster globally competitive national champions. After keeping its currency tightly linked to the US dollar for years, China in July 2005 revalued its currency by 2.1% against the US dollar and moved to an exchange rate system that references a basket of currencies. Cumulative appreciation of the renminbi against the US dollar since the end of the dollar peg was more than 20% by late 2008, but the exchange rate has remained virtually pegged since the onset of the global financial crisis. The restructuring of the economy and resulting efficiency gains have contributed to a more than tenfold increase in GDP since 1978. Measured on a purchasing power parity (PPP) basis that adjusts for price differences, China in 2009 stood as the second-largest economy in the world after the US, although in per capita terms the country is still lower middle-income. The Chinese government faces numerous economic development challenges, including: (a) reducing its high domestic savings rate and correspondingly low domestic demand through increased corporate transfers and a strengthened social safety net; (b) sustaining adequate job growth for tens of millions of migrants and new entrants to the work force; (c) reducing corruption and other economic crimes; and (d) containing environmental damage and social strife related to the economy's rapid transformation. Economic development has been more rapid in coastal provinces than in the interior, and approximately 200 million rural laborers and their dependents have relocated to urban areas to find work. One demographic consequence of the "one child" policy is that China is now one of the most rapidly aging countries in the world. Deterioration in the environment - notably air pollution, soil erosion, and the steady fall of the water table, especially in the north - is another long-term problem. China continues to lose arable land because of erosion and economic development. In 2006, China announced that by 2010 it would decrease energy intensity 20% from 2005 levels. In 2009, China announced that by 2020 it would reduce carbon intensity 40% from 2005 levels. The Chinese government seeks to add energy production capacity from sources other than coal and oil, and is focusing on nuclear and other alternative energy development. In 2009, the global economic downturn reduced foreign demand for Chinese exports for the first time in many years. The government vowed to continue reforming the economy and emphasized the need to increase domestic consumption in order to make China less dependent on foreign exports for GDP growth in the future.
GDP (purchasing power parity):
$8.789 trillion (2009 est.)
country comparison to the world: 3
$8.086 trillion (2008 est.)
$7.418 trillion (2007 est.)
note: data are in 2009 US dollars
GDP (official exchange rate):
$4.814 trillion (2009 est.)
GDP - real growth rate:
8.7% (2009 est.)
country comparison to the world: 4
9% (2008 est.)
13% (2007 est.)
GDP - per capita (PPP):
$6,600 (2009 est.)
country comparison to the world: 128
$6,100 (2008 est.)
$5,700 (2007 est.)
note: data are in 2009 US dollars
GDP - composition by sector:
agriculture: 10.9%
industry: 48.6%
services: 40.5% (2009 est.)
Labor force:
812.7 million (2009 est.)
country comparison to the world: 1
Labor force - by occupation:
agriculture: 39.5%
industry: 27.2%
services: 33.2% (2008 est.)
Unemployment rate:
4.3% (September 2009 est.)
country comparison to the world: 38
4.2% (December 2008 est.)
note: official data for urban areas only; including migrants may boost total unemployment to 9%; substantial unemployment and underemployment in rural areas
Population below poverty line:
2.8% (2007)
Household income or consumption by percentage share:
lowest 10%: 3.5%
highest 10%: 15%
note: data are for urban households only (2008)
Distribution of family income - Gini index:
41.5 (2007)
country comparison to the world: 54
40 (2001)
Investment (gross fixed):
42.6% of GDP (2009 est.)
country comparison to the world: 3
Budget:
revenues: $972.3 billion
expenditures: $1.137 trillion (2009 est.)
Public debt:
18.2% of GDP (2009 est.)
country comparison to the world: 108
15.6% of GDP (2008 est.)
Inflation rate (consumer prices):
-0.8% (2009 est.)
country comparison to the world: 9
5.9% (2008 est.)
Central bank discount rate:
2.79% (31 December 2008)
country comparison to the world: 125
3.33% (31 December 2007)
Commercial bank prime lending rate:
5.31% (31 December 2008)
country comparison to the world: 142
5.58% (17 December 2007)
Stock of money:
$2.434 trillion (31 December 2008)
country comparison to the world: 3
$2.09 trillion (31 December 2007)
Stock of quasi money:
$4.523 trillion (31 December 2008)
country comparison to the world: 4
$3.437 trillion (31 December 2007)
Stock of domestic credit:
$5.555 trillion (31 December 2008)
country comparison to the world: 4
$4.653 trillion (31 December 2007)
SOCIAL STRATIFICATION
Classes and Castes. Confucian philosophy endorses a hierarchical class system. At the top of the system are scholars, followed by farmers, artisans, and finally merchants and soldiers. A good deal of social mobility was possible in that system; it was common practice for a family to save its money to invest in the education and advancement of the oldest son. When the communists took control, they overturned this traditional hierarchy, professing the
A view of the Great Wall of China, which is more than 1,500 miles long and is the only man-made structure visible from the moon.
ideals of a classless society. In fact, the new system still has an elite and a lower class. Society is divided into two main segments: the ganbu, or political leaders, and the peasant masses. According to the philosophy of the Communist Party, both classes share the same interests and goals and therefore should function in unison for the common good. In reality, there is a large and growing gap between the rich and the poor. Weathy people live in the cities, while the poor tend to be concentrated in the countryside. However, farmers have begun to migrate to the cities in search of work in increasing numbers, giving rise to housing and employment problems and creating a burgeoning class of urban poor people.
Symbols of Social Stratification. Cars, a rare commodity, are a symbol of high social and economic standing. Comfortable living accommodations with luxuries such as hot running water are another. Many government employees who could not otherwise afford these things get them as perks of the job. As recently as the 1980s, most people dressed in simple dark-colored clothing. Recently, more styles have become available, and brand-name or imitation brand-name American clothes are a marker of prosperity. This style of dress is more common in the cities but is visible in the countryside among the better-off farmers.
Many minority groups maintain their traditional attire. Tibetans dress in layers of clothes to protect themselves from the harsh weather. The women wrap their heads in cloth. Uighur women wear long skirts and bright-colored scarves; the men wear embroidered caps.
POLITICAL LIFE
Government. China is a communist state. The president is the chief of state and is elected by the National People's Congress (NPC) for a five-year term. However, the president defers to the decisions and leadership of the NPC. The NPC is responsible for writing laws and policy, delegating authority, and supervising other parts of the government. The highest level in the executive branch of the government is the State Council, which is composed of a premier, a vice premier, councillors, and various ministers. The State Council handles issues of internal politics, defense, economy, culture, and education. Its members are appointed and can be removed by the president's decree.
The country is divided into twenty-three provinces, five autonomous regions, and four municipalities. (Taiwan is considered the twenty-third province.) At the local level, elected deputies serve in a local people's congress, a smaller-scale version of the national body, which is responsible for governing within the region and reports to the State Council.
Leadership and Political Officials. The Chinese Communist Party (CCP) is in effect the only political party. Eight registered small parties are controlled by the CCP. There are no substantial opposition groups, but there are two—the Falun Gong sect and the China Democracy Party—that the government sees as potential threats. The Falun Gong in particular has received international attention because of the government's attempts to suppress it. The organization claims that it is a meditation group based on Buddhist and Taoist philosophies; the government considers it a cult that threatens public order and the state. The government has sent hundreds of Falun Gong members to labor camps and has imprisoned many of its leaders. The group is legal in Hong Kong.
Social Problems and Control. The legal system is a complex mixture of tradition and statute. A rudimentary civil code has been in effect since 1987, and new legal codes since 1980. The country continues to make efforts to improve its laws in the civil, administrative, criminal, and commercial areas. The highest court is the Supreme People's Court, which supervises lower courts, hears appeals, and explains national laws.
The crime rate is rising. Pickpocketing and petty theft are the most common offenses, but there are increasing numbers of incidents of violent crime. Prostitution and drug use are also growing problems.
Public humiliation is a common punishment for crimes such as petty theft. Prisons often put inmates to work in farming or manufacturing. The death penalty is assigned not only for violent crimes but also for acts such as bribery and corruption. The government has been known to deal harshly with political dissidents. Many participants in the 1989 Tiananmen Square protests were imprisoned, and the government continues to punish severely any displays of opposition. The country has been cited numerous times for human rights violations.
Military Activity. The People's Liberation Army (PLA) includes the Ground Forces, the Navy (both marines and naval aviation), the Air Force, and the Second Artillery Corps (strategic missile force). The People's Armed Police, consisting of internal security troops, is supposedly subordinate to the Ministry of Public Security but is included in the "armed forces" and in times of war acts as an adjunct to the PLA. The government quotes a figure of over $12 billion (1.2 percent of the GDP) for military expenses, but many Western analysts place the amount several times higher. Service in the PLA is voluntary and highly selective. Both women and men can serve, and the army conscientiously upholds communist ideals of equality; there are no ranks in the army.
As of 1998, there were 2.8 million people in the armed forces: 1,830,000 in the army, 420,000 in the air force, and 230,000 in the navy. That year, however, the government introduced a plan to cut the armed forces by half a million.
Amendments to the Constitution
(Adopted at the First Session of the Seventh National People's Congress on April 12, 1988, and promulgated by No.8 Proclamation of the National People's Congress of the People's Republic of China)
Article 1 Article 11 of the Constitution shall include a new paragraph, which provides that: The state permits the private sector of the economy to exist and develop within the limits prescribed by law. The private sector of the economy is a complement to the socialist public economy. The state protects the lawful rights and interests of the private sector of the economy, and exercises guidance, supervision and control over the private sector of the economy.
Article 2 The fourth paragraph of Article 10 of the Constitution, which provides that no organization or individual may appropriate, buy, sell or lease land, or unlawfully transfer land in other ways, shall be amended as: No organization or individual may appropriate, buy, sell or unlawfully transfer land in other ways. The right to the use of the land may be transferred in accordance with the law.
Amendments to the Constitution of the People's Republic ofChina
(Adopted at the First Session of the Seventh National People's Congress on March 29, 1993, and promulgated by No.8 Proclamation of the National People's Congress of the People's Republic of China)
Article 3 The final two sentences of the seventh paragraph of the Preamble to the Constitution, which reads: "The basic task of the nation in the years to come is to concentrate its efforts on socialist modernization. Under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought, the Chinese people of all nationalities will continue to adhere to the people's democratic dictatorship and the socialist road, steadily improve socialist institutions, develop socialist democracy, improve the socialist legal system, and work hard and self-reliantly to improve the socialist legal system, and work hard and self-reliantly to modernize the country's industry, agriculture, national defense and science and technology step by step to turn China into a socialist country with a high level of culture and democracy., are amended as follows: "China is in the primary stage of socialism. The basic task before the nation is the concentration of efforts of socialist modernization construction in accordance with the theory of building socialism with Chinese characteristics. Under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought, the Chinese people of all nationalities will continue to adhere to the people's democratic dictatorship and the socialist road and to uphold reform and opening to the outside world, steadily improve socialist institutions, develop socialist democracy, improve the socialist legal system, and work hard and self-reliantly to modernize the country's industry, agriculture, national defense and science and technology step by step to build China into a strong, prosperous culturally advances, democratic socialist nation."
Article 4 The following sentence is added to the end of the tenth paragraph of the Preamble to the Constitution: "Multi-party cooperation and the political consultation system under the leadership of the Communist Party of China shall continue and develop for the extended future."
Article 5 Article 7 of the Constitution, which reads: "The state economy is the sector of socialist economy under ownership by the whole people; it is the leading force in the national economy. The state ensures the consolidation and growth of the state economy." is amended as follows: "The state-owned economy, i.e. the socialist economy with ownership by the people as a whole, is the leading force in the national economy. The state will ensure the consolidation and development to the state-owned economy."
Article 6 The first paragraph of Article 8 of the Constitution, which reads: Rural people's communes, agricultural producers' cooperatives and other forms of cooperative economy, such as producers', supply and marketing, credit and consumers' cooperatives, belong to the sector of the socialist economy under collective ownership by the working people. Working people who are members of rural economic collectives have the right, within the limits prescribed by law, to farm plots of cropland and hilly land allotted for their use, engage in household sideline production and raise privately owned livestock," is revised as follows: "In rural areas the responsibility system, the main form of which is household contract that links remuneration to output, and other forms of cooperative economy, such as producers', supply and marketing, credit and consumers' co-operatives, belong to the sector of socialist economy under collective ownership by the working people. Working people who are all members of rural economic collectives have the right, within the limits prescribed by law, to farm plots of cropland and hilly land allotted for their private use, engage in household sideline production and raise privately owned livestock."
May 30, 2010
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Library>China ABC>Government>Legal System
The Judicial System
The judicial system of the People's Republic of China is a complete compact set of people's judicial system, which has played a unique role in the state system.
Broadly speaking, the judiciary in China means law-enforcement activities conducted by the country's judicial organs and organizations in handling prosecuted or non-prosecuted cases. Judicial organs here mean public-security organs (including state security organs) responsible for investigation, prosecution, trial and execution of cases, the prosecutors, the trial institutions and the custodial system. Judicial organizations here refer to lawyers, public notaries, and arbitration organizations. The latter, though not part of the judicial apparatus, are an integral part and a link in the overall judiciary system.
The judiciary system comprises sub-systems for investigation, prosecution, trial procedures, jails, judicial administration, arbitration, lawyers, public notaries and state compensation.
The Trial System
The trial system refers to the court system governing the establishment of courts, judges, and trials.
I. Organization, Functions and Powers of the People's Courts
The people's courts of the People's Republic of China are the judicial organs of the state. The People's Republic of China establishes the Supreme People's Court, local people's courts, and special people's courts.The Supreme People's Court supervises the administration of justice by the people's courts at various local levels and by the special people's courts. People's courts at higher levels supervise the administration of justice by those at lower levels. Local people's courts are established according to the administrative divisions, while special people's courts are set up where necessary.
The people's courts try all cases publicly, except those involving state secrets, individual privacy or minors. The accused has the right to defense. Besides the right to defend himself/herself, he or she may also be represented by a lawyer or ask near relatives or guardians to defend him/her.
The Supreme People's Court
The Supreme People's Court, located in Beijing, capital city of China, is the highest judicial organ in China. The Supreme People's Court is responsible to the National People's Congress and its Standing Committee. The Supreme People's Court supervises the administration of justice by the people's courts at various local levels and by the special people's courts. The Supreme People's Court exercises the following functions and powers:
(1) Trying the cases that the Supreme People's Court claims to be heard by itself; (2) hearing appeals against the legal decisions of higher courts and protested cases submitted by the Supreme People's Procuratorate in accordance with legal procedures; (3) supervising the work of local courts and special courts at every level, overruling wrong judgments they might have made, and deciding to review the cases itself or to direct the lower-level courts to conduct a retrial; (4) checking the cases of death penalty reported by high people's courts; and (5) giving a judicial explanation of the law in the judicial process which becomes effective nationally.
Local people's courts at various levels
The local people's courts consist of the high people's courts, the intermediate people's courts and the primary people's courts.
The high people's courts are established at the levels of provinces, autonomous regions and municipalities directly under the Central Government. They exercise the following functions and powers:
(1) Trying criminal, civil and administrative cases as courts of first hearing under their jurisdiction; (2) hearing appeals against the legal decisions of intermediate courts and appeals proposed by the people's procuratorates at the corresponding level according to legal procedures; (3) overruling wrong judgments the lower-level courts might have made, deciding to review the cases themselves or to direct the lower-level courts to conduct a retrial; and (4) checking the cases of death sentence with a reprieve reported by intermediate people's courts and the cases of death penalty authorized by the Supreme People's Court.
The intermediate people's courts areestablished at the levels of cities with districts and prefectures. Their main functions and powers are as follows:
(1)Trying criminal, civil and administrative cases as courts of first hearing under their jurisdiction; (2) hearing appeals against the legal decisions of primary courts and appeals proposed by the people's procuratorates at the corresponding level according to trial and supervising proceedings; and (3) deciding to review the cases themselves or to direct the primary courts to conduct a retrial, overruling wrong judgments the primary courts have made according to legal procedures.
The primary people's courts consist of those courts set up in counties, autonomous counties, cities not divided into districts and municipal districts. Their main functions and powers are as follows:
(1)Trying all cases as courts of first hearing which are not included in the spheres of higher-level courts; (2) reviewing the cases themselves and overruling wrong judgments they have made according to the trial procedures; and (3) directing people's mediation committees in their work.
Special people's courts
Special people's courts are courts set up in special departments for special cases wherever necessary. Currently, there are three special court systems in China, namely, the military judicial system, the railway transport court system and the maritime court system.
Military courts are set up at three levels: the PLA Court, Great Military Region, Services and Arms, and grassroots military courts.
Maritime courts are special courts set up to try first-hearing maritime or sea-shipping cases for the purpose of exercising judicial jurisdiction over maritime affairs. Maritime courts handle maritime or commercial cases between Chinese legal persons/citizens, between Chinese legal persons/citizens and foreign legal persons/citizens, and between foreign legal persons/citizens.
The Railway transportation tribunals are special courts set up along railways that mainly try criminal cases investigated by railway public-security authorities and filed by railway prosecutors and cases involving economic disputes.
II. The Trial System of the People's Courts
Open Trials
Except in special circumstances as specified by law, all cases in the people's courts are heard in public. For cases that, by law, should be open to the public, and open means the entire process should be open to public auditing and to the press. The court should announce before the trial opens the outline of the case, the name of the litigant, the time and the place of the trial. Even cases that are not tried openly should be publicized when the verdict is passed.
In accordance with the law, the following four types of cases are not open to the public: (1) cases involving state secrets; (2) cases involving personal privacy; (3) cases involving crimes committed by minors; and (4) cases involving divorce and trade secrets may, upon request by litigants, not be open to the public.
Defense System
The Constitution and the law on the organization of courts provide that the accused is entitled to the right to a proper defense. The law on criminal procedure further provides that the courts have the obligation to ensure that the accused obtains defense, and sets forth specific procedures that any suspects or accused may, in addition to exercising the right to defend themselves, appoint one or two representatives to defend them.
Challenge System
The challenge system refers to a system in which judicial officers shall or are required to withdraw from the cases because of their special relationship with these cases or litigants, which may undermine the impartiality of the judgment.
In accordance with criminal procedures, judges, prosecutors and investigators who have special types of relations with litigants to the suit that may affect the fair handling of the case shall voluntarily withdraw or be challenged by litigants or their representatives to withdraw from the cases.
System of Collegiate Panels
Article 10 of the Law on the Organization of People's Court provides that courts shall practice a system of collegiate panels when trying cases. Except for first-instance simple civil cases and other cases otherwise provided for by the law, all cases are tried with a collegiate panel present. This system refers to a panel of at least three judges or a combination of at least three judges and People's Assessors, as opposed to trials conducted by one judge alone. The composition of the collegiate panel should be an odd number, usually three, and the principle of the minority submitting to the majority is observed, provided that the opinions of the minority are recorded in the court log. The judges and People's Assessors enjoy the same rights.
Second Instance Being Final
The courts have to try cases on two levels, with the second instance being the final judgment. This means a case is closed after going through two levels of trial. Should the litigant not agree with the judgment or ruling of the first instance, he or she may, within a specified period of time, appeal to the higher-level court. If the procuratorate believes that the first-instance ruling or judgment is indeed mistaken, it may, within a specified period of time, protest the ruling or judgment to the higher court. If, within the specified period of time, the litigant fails to appeal and the procurator fails to protest, then the first-instance judgment or ruling stands as the legally binding judgment or ruling.
III. Judge System
Judges exercise state judicial power in accordance with law. They include presidents and vice presidents of courts at various levels, members of judicial committees, presidents and vice presidents of tribunals, judges and assistant judges. The responsibility of judges is to participate in collegiate panels or be independent judges at trials.
Presidents of courts at local levels are elected and removed by the People's Congress at the same level and the tenure of the presidents is the same as the People's Congress; the president nominates the vice president, members of the Judicial Committee, presiding judges, deputy presiding judges and judges for appointment and removal by the Standing Committee of the People's Congress at the same level. Assistant judges of a court are appointed and removed by the president of the court. Judges sitting at special courts are elected and removed with procedures separately set forth by the Standing Committee of the National People's Congress.
Chapter 4 of the Judge Law of the People's Republic of China, promulgated on February 28, 1995, specifies that judges be elected with the following qualifications:
(1) A citizen of the People's Republic of China;
(2) At least 23 years of age;
(3) Supports the Constitution of the People's Republic of China;
(4) In good political, professional and moral standing;
(5) In good health; and
(6) A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor's degree in JD with a full year of working experience; those holding a Master's or Ph.D. degree in JD are not subject to the working-experience limit described above.
Judges shall not concurrently hold positions in the Standing Committee of the People's Congress, executive offices, the procuratorate, business, non-profit institutions, or in the legal profession.
Judges who have lost their citizenship, been found to be incompetent, been unable to perform their duties for a protracted period of time due to disciplinary violations, criminal records or health reasons, shall be removed from their position in accordance with legal procedures.
Judges are divided into 12 levels, with the president of the Supreme People's Court being the Chief Justice and those between Level 2 and 12 being labeled Justice, Senior Judge and Judge. The level of seniority is determined by the judge's position, performance, professionalism and seniority. Promotions are based on annual performance reviews, which are conducted by the courts where the judges serve. Performance reviews shall be conducted in an objective, impartial manner and combine evaluations by both superiors and subordinates. Judges are rewarded for their outstanding performance and contributions. Rewards can be public recognition of performance, Third Reward, Second Reward, First Reward and the conferring of an honorary title. Judges who engage in any bad acts will be disciplined to varying degrees. These can be warnings; a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.
Judges enjoy rights of retirement, resignation, training, petition and complaint. After retirement, they shall be entitled to pension insurance and other benefits as prescribed by the state.
The Prosecution System
I. Organization, Functions and Powers of the People's Procuratorates
The People's Republic of China establishes the Supreme People's Procuratorate, local people's procuratorates, and special people's procuratorates such as military procuratortates.
People's procuratorates at higher levels direct the work of those at lower levels. Such a top-down structure reflects the pyramid structure of the country's prosecution, in which the superior leads the subordinate. This is noticeably different from the court system in which the higher court supervises the lower court. This centralized system is created to maintain the consistency of the country's legal structure.
The Supreme People's Procuratorate is the highest procuratorial organ. The Supreme People's Procuratorate leads local and special people's procuratorates. Local people's procuratorates include provincial, autonomous regional and municipal people's procuratorates and their branches, as well as procuratorates at the autonomous prefecture, cities directly under provincial governments; county, city, autonomous city and urban district levels. Special procuratorates include military and railway transportation prosecution. Procuratorates are established at levels corresponding to those of courts so that cases can be prosecuted in accordance with legal procedures.
In accordance with the Law on the Organization of People's Procuratorates and other related laws, the people's procuratorates exercise the following functions and powers:
1.Exercise the power of prosecution on cases of treason, separatism and major crimes seriously hindering the uniform implementation of the state's policies, laws, writs, and administrative decrees;
2.Investigate criminal cases they directly handle;
3.Review cases investigated by public security and state security authorities to decide if arrests, prosecutions are warranted; supervise the legality of such investigations;
4.Initiate public prosecution and support public prosecution for criminal cases; supervise the legality of trials conducted by courts;
5.Supervise the rulings and judgments on criminal cases and the legality of activities of jails, detention centers and reform-through-labor institutions;
6.Supervise civil and administrative trials of courts.
II. System of Prosecutors
Prosecutors include chief prosecutor and deputy prosecutor of people's procuratorates at all levels, members of the procuratorial committees, prosecutors and assistant prosecutors.
The chief prosecutor is elected and removed by the people's congress at the same level, but the appointment and removal of local chief prosecutors have to be reported to the chief prosecutor of higher procuratorates who, in turn, will submit the appointments and removals to the standing committee of the people's congress at the same level for approval.
The appointment and removal of the deputy chief prosecutor, members of the procuratorial committee and prosecutors must be submitted to the standing committee of the people's congress at the same level, but the appointment and removal of assistant prosecutors can be approved by the chief prosecutor.
Prosecutors must meet the following conditions:
(1)Be a citizen of the People's Republic of China;
(2)Be at least 23 years of age;
(3)Support the Constitution of the People's Republic of China;
(4)Be in political, professional and moral standing;
(5)Be in good health; and
(6)A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor's degree in law with a full year of working experience; those holding a Master's or Ph.D. degree in law are not subject to the working-experience limit described above.
Prosecutors are divided into 12 ranks, with the highest being the Chief Prosecutor of the Supreme People's Procuratorate, followed by Grand Prosecutors, Senior Prosecutors and prosecutors (level 2 through 12). The ranking of prosecutors is determined by a range of factors, including their position, performance, professionalism and seniority. Awards are typically a combination of moral and material incentives. These include public recognition of achievements, Third Prize, Second Prize, First Prize and the conferring of an honorary title. Penalties include warning, a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.
Prosecutors are free from interference in exercising their judicial powers from any administrative authorities, social organization or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures. Prosecutors receive legal protection for their corporal, property and residential safety. Prosecutors receive remuneration for their performance of duties and enjoy insurance and other benefits. Prosecutors are entitled to powers and working conditions befitting their performance of duties; and they have the right to resign, petition or accuse.
System Governing Investigations
In China, public security organs are an important part of the government. They are both an administrative arm and a judicial organ since they are in charge of public security and criminal investigations, playing a unique role in cracking down on crimes and maintaining social security.
The system governing investigations in China includes:
1.Acceptance and Establishment of Cases
Public security organs should immediately accept, inquire about, take notes of and hear cases of suspects turned in, reported or brought to the police by citizens or suspects who turn themselves in. Those that meet conditions should be accepted and filed as a case and for complicated and material cases, an investigation plan and, if necessary, necessary measures have to be taken.
2.Procedures for Criminal Investigations
For criminal cases that already been filed with the police, investigations should be launched for a thorough and impartial collection of evidence that may determine whether the suspect is guilty or innocent and, if guilty, whether it is a felon or a misdemeanor. Depending on actual needs, various detective means and measures will be taken in strict compliance with statutory procedures.
3.Procedures for Detentions and Arrests
Public security organs may proceed to detain criminals caught in the act or material suspects in accordance with statutory procedures; they may also seek approval from procuratorates for an arrest warrant for suspects for whom sufficient evidence of incrimination exists and a sentence is likely, and for whom measures such as obtaining a guarantor in anticipation of trial out of custody and surveillance of residence is insufficient for ensuring social security and order.
Procedures for Case Transfer and Prosecution
Cases concluded by public security organs for which the facts are clearly established, evidence is verified and sufficient, the nature of crime and name of felony correctly defined, legal procedures completed and for which criminal liabilities should be prosecuted, should be transferred to the procuratorate at the same level to determine whether public prosecution is warranted.
5.Procedures for Evidence Gathering
Detectives should strictly follow statutory procedures in collecting all kinds of evidence that can prove whether a suspect is guilty or not, or how serious the felony is. Extortion of confession through torture and collecting evidence through threat, inducement, deception or other illegal means are strictly forbidden.
The Jail System
Article 3 of the Prison Law states that prisons should follow the principle of combining penalty with reform, education with labor, in a bid to reform prisoners into law-abiding citizens.
Prisons in China are divided into two categories:
Prisons incarcerating inmates who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Male and female inmates are warded separately, with female wards managed by female law enforcement personnel. Prisons may also be divided into wards for felons and criminals of misdemeanor.
Penitentiaries for juvenile delinquents, criminals of minor age who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Special protection is extended to juvenile delinquents, with customized procedures in place to cater to their needs.
Prison Setup and Staffing
The Prison Law provides that the State Council judicial administration approves the establishment, elimination and relocation of prisons in line with historical, economic and natural factors. This provision is designed to optimize the distribution of prisons and ensure the unified, effective and accurate execution of penalties. Prisons usually have one warden and several deputy wardens and various administrative departments and staff. In addition to administrative offices and commercial institutions, prisons also have sanitary and education facilities.
The Prison Law provides that the managerial personnel of prisons are members of the police force who enjoy the same legal status as public security and traffic police.
Financial System of Prisons
The Prison Law states that the state ensures funding for prisons in reforming inmates. Expenses related to prison police, reformation of prisoners, daily life of inmates, maintenance of prison facilities and other items are budgeted for in the central government's planning. The state provides production facilities and funding needed for prison labor. Land, mineral resources and other natural resources legally employed by prisons, as well as the property of prisons are protected by law; no entity or individual can trespass or damage those properties.
The Arbitration System
The arbitration system is an important component of the judicial system in China. The Arbitration Law of the People's Republic of China, promulgated on August 31, 1994, unified arbitration practices across the country and harmonizes China's arbitration system with internationally accepted principles, systems and practices.
I. Basic Principles of the Arbitration System
1.Voluntarism
Parties to a dispute should voluntarily reach an agreement to resolve their dispute through arbitration. An arbitration committee shall not consider a case without application from a party to the agreement.
2.Independence
Arbitration should be independent of any interference from administrative bodies, social organizations or individuals.
(1)An arbitration agency is not part of the administrative apparatus.
(2)Arbitration institutions are established geographically, independent from each other; they have no affiliation among themselves.
(3)Arbitration committees, arbitration associations and arbitration tribunals are also independent from each other, with arbitration tribunals adjudicating cases free from interference by arbitration associations or arbitration committees.
(4)Courts must exercise the power of supervision over arbitration activities; however, arbitration is not dependent on adjudication and arbitration institutions are not dependent on courts.
3.Legality and Impartiality
The Arbitration Law provides that arbitration should be based on facts, comply with laws and resolve disputes in an impartial and reasonable manner.
II. Essential Components of Arbitration
1.Arbitration Agreement
This demonstrates the principle of voluntary participation of the litigants in arbitration and also guarantees the implementation of the principle in arbitration. The Arbitration Law specifies that there be a written arbitration agreement. The agreement can be included in a contract or an independent agreement. The contents of the agreement should be consent on arbitration, concrete matters to be arbitrated and the chosen arbitration body.
2.Arbitration or Adjudication
This practice represents a respect for the parties' right of choice as to the way to settle their dispute. It means: If the parties have reached an agreement on arbitration, it rules out the jurisdiction of the court over the dispute; the parties can only apply for arbitration to an arbitration body rather than bringing action to the court.If one party does not keep the agreement on arbitration, and brings a suit to the court, the other party has the right to ask the court to reject the appeal according to the Arbitration Law.
3.One Instance Being Final
Article 9 of the Arbitration Law specifies that arbitration adopt the rule of one instance being final. This means that the ruling takes effect immediately upon pronunciation. Even if the parties are not happy with the ruling, they cannot file a suit to the court for the same dispute or apply for arbitration or reconsideration to arbitration organizations.
III. Arbitration Bodies
1. Arbitration Association
China Arbitration Association is a self-disciplinary organization of arbiters. It supervises arbitration committees and their members and the behaviors of arbiters in accordance with their constitution. Arbitration committees are members of the China Arbitration Association. The constitution of the association is made by a national congress. It makes arbitration rules in accordance with the Arbitration Law and the Civil Procedure Law.
2. Arbitration Committees
Arbitration committees are executive bodies established in capital cities of provinces, municipalities directly under the Central Government and autonomous regions. They can also be set up in other cities if necessary.
Arbitration committees are formed with members from government departments and chambers of commerce and registered with the judicial administration of the province, municipality directly under the Central Government and autonomous region.
An arbitration committee consists of one chairman, 2-4 vice-chairmen, and 7-11 members. The chairman, vice chairmen and members should be legal and trade experts and individuals with working experience. The number of legal and trade experts should not be less than one third of the membership of an arbitration committee.
3.Arbitration Tribunals
After taking up an arbitration case, an arbitration committee does not directly arbitrate the case; instead, it forms an arbitration tribunal to adjudicate the case.
Organizationally, an arbitration tribunal can be a collegiate panel or a sole arbitrator. An arbitration panel should be composed of three arbiters, one of whom should the chief arbiter who presides over the arbitration.
In case the parties agree to form a tribunal of three arbiters, each party should designate, or ask an arbitration committee to designate, one arbiter, and the third arbiter, who should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties, should be the chief arbiter. In case the parties agree to form a sole-arbiter tribunal, the arbiter should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties.
IV. China International Economic and Trade Arbitration Committee
The China International Economic and Trade Arbitration Committee is the only arbitration agency in China that handles international economic and trade disputes. It is headquartered in Beijing, with branch offices in Shenzhen and Shanghai.
The Lawyer System
Article 2 of the Lawyers Law of the People's Republic of China, promulgated on May 15, 1996, defines lawyers as professionals who have obtained a practicing license through legal means to provide legal services.
I. Qualifications for Licensing
To practice, lawyers must first obtain professional qualifications and apply for a license after probation. After obtaining qualifications, they must receive the license for practicing in accordance with legal procedures in order to practice law as a lawyer. Only then can they enjoy the rights of lawyers while assuming duties accordingly.
Individuals who have obtained legal qualifications may retain their qualifications and not engage in the legal profession for a period of time. This is known as separation of legal qualifications from legal practicing.
Lawyers should register their practicing license once a year; unregistered licenses are not valid. Registration is administered by judicial authorities above the Judicial Bureau at the provincial (municipal or autonomous regional) level. If necessary, registration can also be administered by judicial bureaus at the prefectural (city or county) level with authorization from higher judicial authorities.
Licensing Restrictions
In light of the Lawyers Law, lawyers should practice at one law firm rather than at two or more simultaneously. No geographical restrictions should be imposed. Incumbent government office holders should not concurrently be lawyers. While serving on the Standing Committee of the People's Congress at various levels, lawyers should not practice. Unlicensed persons should not practice as lawyers or represent or defend clients for a profit. Persons engaging in legal teaching and research should not be partners in a partnership or a cooperative law firm.
II. Law Firms
The Lawyers Law provides for three forms of law firms: state-funded, cooperative and partnership. Different operational mechanisms are permitted for different forms of law firms and they assume different legal obligations (civil liabilities).
III. Rights and Obligations of Lawyers
1.Rights
Investigation
Article 31 of Lawyers Law provides that when handling legal cases, lawyers, subject to permission by relevant entities or individuals, investigate them for fact-finding purposes.
Access to documents and files
The Criminal Procedure Law provides that the defense attorney may, from the day the procuratorate reviews a lawsuit, access, transcribe or copy judicial documents and technical appraisement documents of the case; they may also, from the day the court handles the case, access, transcribe or copy factual documents used in the case. Article 30 of the Lawyers Law provides that lawyers participating in lawsuits may, in compliance with procedural law, access documents related to the case.
Meet and communicate with persons with limited personal freedoms
Appear in court and participate in lawsuits
Refuse to defend and represent any client
Lawyers' corporal rights are inviolable
2.Obligations
Abide by the Constitution and laws and observe codes of ethics and professional discipline
Defend and represent clients unless circumstances require otherwise
Provide legal aid
Maintain confidentiality
Article 33 of the Lawyers Law states that lawyers should maintain state secrets and commercial secrets known to them in the practice of law and they should not reveal the privacy of their clients.
Refrain from accepting special cases
Article 34 of the Lawyers Law states that lawyers should represent both parties to a dispute at the same time. Article 36 provides that lawyers who have served as judges and prosecutors should not represent or defend clients within two years of retirement from the court or procuratorate.
Refrain from representing clients in private
Refrain from profiting from parties to a dispute by taking advantage of the convenience of legal service or accept money or gifts from clients.
Refrain from meeting judges and prosecutors in violation of rules
Refrain from giving gifts to or bribe judges, prosecutors, arbiters and other related personnel, or prompting or instigating their clients to bribe.
Refrain from hampering testimony giving
Article 35 of the Lawyers Law provides that lawyers should not engage in perjury, hide facts or threaten or prompt others to commit perjury, hide facts or interfere in the legal collection of evidence by the other party.
Refrain from disturbing the order of a court of law or an arbitration tribunal.
The Mediation System
Mediation is an effort by a third party to encourage parties to a dispute to voluntarily reach an agreement to resolve their dispute. There are currently four types of mediation practices in China:
(1)Civil mediation. Mediation by People's Mediation Committees outside the court.
(2)Judicial mediation. Mediation by a court of law in civil and economic disputes and minor criminal cases inside the court. For marital cases, inside-court mediation is a necessary procedure. Whether or not to seek judicial mediation is for litigants to decide. Mediation is not a necessary procedure. A court's mediation document is as valid as its verdict.
(3) Administrative mediation. It has the following two types. One is outside-the-court mediation by grassroots governments such as a township government in ordinary civil disputes; the other is outside-the-court mediation by government departments in compliance with legal provisions in specific civil disputes, economic disputes or labor disputes.
(4) Arbitration mediation. Mediation by arbitration bodies in arbitration cases. Arbitration is called upon only if mediation fails to resolve the differences. This is also an outside-the-court mediation.
Failure of Mediation
Article 91 of the Civil Procedure Law provides that a court of law should adjudicate in a timely fashion if mediation fails to produce an agreement or if one party retracts before the mediation document arrives.
The Notary System
In the past, public notaries were state offices representing the state in witnessing legal relations in civil matters. State notary offices, at the request of applicants, notarize legal acts and the truthfulness and legality of legal documents and facts in order to protect public property and safeguard the lawful rights and interests of citizens. Since October 1, 2000, the Ministry of Justice has implemented a plan to reform the notary system. Under the new scheme, public notary offices are no longer administrative bodies; rather, they are non-profit entities with a legal-person status that independently conduct notary business to meet market demand and assume full responsibility for their operations. In the future, the state will no longer approve the establishment of public notary offices as administrative bodies. Public notaries will be recruited openly through examinations administered by the Ministry of Justice.
I. Setup of Public Notary Offices
Public notary offices are set up in municipalities directly under the central government, counties (autonomous counties), and cities. Subject to approval from judicial authorities of provinces, autonomous regions and municipalities, districts of cities may also set up public notary offices. All the offices are independent of each other.
Each office should have a director and a deputy director who should be notaries themselves. The qualifications of notaries are the same as that of judges and prosecutors.
II. Scope of Business
The scope of business of public notary offices is as follows:
1. Notarize civil legal acts such as contracts, trusts, wills, gifts, division of property, and adoption of children;
2. Notarize facts that amount to civil legal acts such as birth, death, marriage, divorce, kinship, identity, degree, and experience;
3. Notarize documents that amount to civil legal acts such as authenticity of signatures and seals on certificates, consistency of copies of certificates, excerpts, translations and photocopies with the originals;
4. Notarize the enforceability of creditor documents such as repayment agreements and contracts on recovery of debts;
5. Auxiliary business, such as preservation of evidence, maintenance of wills or other documents, drafting notary documents on behalf of clients, notarizing the opening of lottery draws, etc.
III. Validity of Notarization
Notarized documents are good for the following four purposes:
1. Evidence.
Article 67 of the Civil Procedure Law states, Legal acts, legal facts and documents that have been notarized through legal procedures should be regarded as a basis for establishing facts, except where opposing evidence is sufficient to overrule the notarized documents.
2. Enforceability.
At present, this is limited only to the recovery of debts and goods. Liability documents notarized by public notaries are enforceable; if one party fails to comply, the other party can apply to the local grassroots court that has jurisdiction for enforcement.
3. Legality.
This means certain legal acts take effect and become legally binding only after they are notarized. These include adoption of children and marriage registration between Chinese citizens and foreigners.
4.Extraterritoriality.
Notarized documents are legally valid outside China. This is an extension of the inherent legal effect of notarized documents abroad. According to international practice, notarized documents sent by Chinese citizens and legal entities for use abroad can take legal effect and be accepted by the host country only after they are certified by the Chinese Foreign Ministry and Foreign Affairs Offices of the provinces, autonomous regions and municipalities or foreign embassies or consulates in China.
IV. Procedures
Public notary offices and persons applying for notarization should observe the following procedures:
1.Application and Acceptance of Applications
Except for wills and adoption, which require the applicant to go to the public notary office in person, citizens or legal persons can authorize an agent to handle the notarization procedures on their behalf. Applications should be filed with a public notary office that has jurisdiction and an application form should be filled out and be affixed with a signature or seal. Applications should come with other supporting documentation such as ID, letter of authorization, documents to be notarized, property ownership certificates or other materials. The public notary office should make a preliminary decision whether to accept the application or not upon receipt of application documents.
2.Review
An important link in notarization, public notaries should carefully review the number of applicants, identity, qualifications, capability of civil acts, intentions of applicants and applicable rights. They should also verify whether the acts, facts or documents to be notarized are true and legal, whether the documents to be notarized are complete, whether the wording is accurate, and whether the signature or seal is complete.
3.Certification
Public notaries should produce a public notary certificate for qualified applicants.
4. Special Procedures
These refer to procedures required for special types of public notarization, such as tendering and bidding, opening of lottery draws and auction bids. In such cases, public notaries should be at the scene themselves and read a public notary statement regarding what is truthful and legal. Furthermore, they should produce a notary document and deliver it to applicants within seven days of notarization.
5. Reconsideration
Applicants who object to decisions given by a public notary office not to accept an application, refuse to notarize or withdraw a public notary document may apply within a specified period of time to the judicial authorities for reconsideration; those who object to the reconsideration decision may file a suit to a court of law within the specified period of time.
The State Compensation System
Article 2 of the Law on State Compensation, passed on May 12, 1994 by the Eighth National People's Congress states, Citizens, legal persons or other organizations have the right to seek compensation from the state if state organs and office holders abuse their power and infringe upon their lawful rights and interests and have caused damages thereof.
The State Compensation Law specifies two kinds of compensation: administrative and criminal.
Administrative Compensation
The state should assume the responsibility of compensation if government offices or their staff abuse their power and infringe upon the lawful rights and interests of citizens, legal persons or other organizations and have caused damages thereof. Administrative compensation is the primary component of state compensation.
Claimants of administrative compensation should first file their claim with the administrative body responsible for compensation; they may also raise their claim while applying for administrative reconsideration or filing an administrative suit. They should not directly file a suit without first going through the administrative body responsible for compensation.
Criminal Compensation
Criminal compensation applies when the judicial authorities wrongly detain or arrest citizens or wrongly adjudicate cases.
A compensation committee composed of three to seven judges should be set up in a court above the intermediate level.
Claimants of criminal compensation should first file their claim with the body responsible for compensation; they may also apply to higher authorities for administrative reconsideration within 30 days of expiry of the term if compensation is rejected after expiry of the term, or if they object to the amount of compensation.
Compensation-paying bodies, reconsideration bodies or courts shall charge no fees on compensation claimants.
State compensation is paid in monetary form. Whenever possible, recovery or reinstatement of property should be implemented.
Compensation expenditures should be budgeted for the state financial organs and charged by governments at all levels.
Article 33 of the State Compensation Law specifies how foreign-related state compensation is calculated: This law applies to foreign individuals, enterprises and organizations within the territory of the People's Republic of China. Where the home country of the foreign individual, enterprise or organization does not protect or limits the rights to state compensation of individuals, enterprises or organizations of the People's Republic of China in that country, the People's Republic of China will reciprocate that policy toward individuals, enterprises or organizations of that country. This provision reflects both China's respect for the rights of foreign individuals, enterprises and organizations and its sovereignty and dignity.
The Legal Aid System
China's legal-aid system is still in an embryonic stage. Article 34 of the revised Criminal Procedure Law of the People's Republic of China, passed on March 17, 1996, states, For public-prosecuted cases, the court can designate a lawyer who provides legal assistance to defend the accused if the accused fails to appoint a defense attorney for economic or other reasons. This is the first time in the history of Chinese legislation that legal assistance was written into law. The Lawyers Law, passed on May 15, 1996, provides more specifics with regard to legal assistance. These provisions define the scope of legal assistance and require lawyers to provide legal assistance. In addition, they lay the foundation for future legislation on legal aid. A Center for Legal Assistance under the Ministry of Justice was formally established in Beijing on May 26, 1997.
At present, China has formed a four-tier legal aid structure:
1.At the national level, a Center for Legal Assistance has been created under the Ministry of Justice to supervise and coordinate legal assistance across the country.
This center, created on May 26, 1997, is responsible for supervising legal assistance, drafting regulations and rules, mapping out medium- to long-term plans and annual plans, coordinate legal assistance work nationwide, and conducting exchanges with foreign legal-aid groups and individuals.
On the same day, the China Legal Aid Foundation was created to raise, manage and use the funds, publicize the legal aid system, and promote judicial justice. Funding comes from donations and sponsorships given by domestic organizations, enterprises and individuals; interest; proceeds from bond and stock trading.
2.Legal-aid centers have also been established in provinces (autonomous regions) to supervise and coordinate legal-aid work in their respective jurisdiction.
3.The next tier is prefectures and cities where the legal-aid centers perform a dual duty: administer and implement legal-aid programs in their jurisdiction.
4.Finally, where conditions permit, legal-aid centers are also set up in counties and districts; where conditions do not permit, the Judicial Bureau of the counties and districts should be responsible for legal aid.
Applicants for legal aid should meet two conditions: that have sufficient reason to prove they need legal assistance to safeguard their lawful rights and interests; and that they indeed cannot afford to pay, in part or full, the legal fees.
Legal aid is rendered by three groups of people: lawyers, public notaries and grassroots legal professionals. Lawyers provide procedural aid (including defense for criminal cases, representation for criminal cases, and representation for civil procedures) and non-procedural aid; public notaries provide notarization assistance; grassroots legal professionals provide legal counseling, document drafting and general non-procedural aid.
MARRIAGE ,FAMILY, AND KINSHIP
Marriage. According to custom, marriages are arranged by the couple's parents. While this system is less rigid than it once was, it is still common for young people to use matchmakers. People take a pragmatic approach to marriage, and even those who chose their own spouses often take practical considerations as much as romantic ones into account.
Weddings are usually large, expensive affairs paid for by the groom's family. For those who can afford it, Western-style weddings are popular, with the bride in a white gown and the groom in a suit and tie.
The legal age for marriage is twenty for women and twenty-two for men. A marriage law enacted by the communists in 1949 gave women the right to choose their husbands and file for divorce. While it is difficult to obtain a divorce, rates are rising.
Domestic Unit. It is common for several generations to live together under one roof. After marriage, a woman traditionally leaves her parents' home and becomes part of her husband's family. The husband's mother runs the household and sometimes treats a new daughter-in-law harshly. Although today practical reasons compel most children to leave the parents' home, the oldest son often stays, as it is his duty to care for his aging parents. Even today, many young adults continue to live with their parents after marriage, partly because of a housing shortage in the cities.
Inheritance. The estate generally passes to the oldest son, although, especially in the case of wealthy and powerful men, most of their personal possession traditionally were buried with them. The remaining property went to the oldest son. Since the communists came to power in 1949, women have been able to inherit property.
Kin Groups. Extended family is extremely important, and the wealthy and well educated often hire genealogists to research their family trees. Family members, even distant relations, are valued above outsiders. The passing on of the family name is of great importance. If the oldest son in a family has no son of his own, he often is expected to adopt the son of his next youngest brother. If no sons are born in the clan, a sister's son may be adopted to carry on the name.
SOCIALIZATION
Infant Care. Traditionally, male babies were valued much more highly than female offspring. Girls were looked at as a liability and in times of economic hardship often were sold into lives of servitude or prostitution. While this has changed somewhat, those attitudes have again become prevalent with the government's one-child policy. When families are allowed to have only one child, they want to ensure that it is a boy; for this reason, rates of female infanticide and abandonment have risen. While babies are highly valued, it is considered bad luck to praise them aloud. It is common to offer backward compliments, remarking on a child's ugliness.
A baby usually is not washed for the first three days after birth. On the third day, he or she is bathed, and friends and relatives come to view the new addition to the family. When a male child turns one month old, the parents throw a First Moon party. The boy's head is shaved, and the hair is wrapped in a red cloth, which, after a hundred days, is thrown in the river. This is thought to protect the child.
Women usually are granted maternity leave between two months and one year, but rural women tend to go back to work earlier.
Child Rearing and Education. From a very young age, children are assigned responsibilities in both the family and the community. In the countryside, this means farm chores; in the city, it consists of housework or even sweeping the street. Schoolchildren are responsible for keeping the classroom clean and orderly.
Under communism, when women were encouraged to take jobs outside the home, child care facilities became prevalent. Grandparents also play a significant role in raising children, especially when the mother works outside the home.
Education is mandatory for nine years. Ninety-six percent of children attend kindergarten and elementary school, and about two-thirds continue on to secondary school, which lasts for three years. In high school, students pursue either technical training or a general education. Those who receive a general education can take the extremely difficult qualifying exams to enter a university. The educational system stresses obedience and rote learning over creativity. Both traditional Confucians and the Communist Party view education as a method for inculcating values in the young. Under Mao, the educational system suffered from propaganda and the devaluation of intellectual pursuits. Because of the size of the population, classrooms and teachers are in short supply.
The country has made great progress in increasing the literacy of the general population. When the communists came to power, only 15 percent of the population could read and write. Today, thanks to mandatory schooling for children and adult education programs, the rate is over 75 percent.
Higher Education. Higher education is not accessible to many. Admission to the universities is extremely competitive; only 2 percent of the population attends college. In addition to the rigorous entrance examination, students are required to demonstrate their loyalty to the Communist Party. During the summers, university students perform manual labor. The curriculum emphasizes science
ETIQUETTE
Deference and obedience to elders is considered extremely important. There is a hierarchy that places older people above younger and men above women; this is reflected in social interaction.
Chinese people are nonconfrontational. Saving face is of primary importance; appearing to be in the right or attempting to please someone is more important than honesty. It is considered rude to refuse a request even if one is unable to fulfill it. The fear of losing face is a concern that governs social interactions both large and insignificant; failure to perform a duty brings shame not just on the individual, but on the family and community as well. Individuality is often subsumed in the group identity. There is little privacy in the home or family, and housing shortages and cramped living quarters often exaggerate this situation.
People touch often, and same-sex hand holding is common. However, physical contact between men and women in public is limited. Smiling is not necessarily a sign of happiness; it can be a display of worry or embarrassment.
Visiting is an important part of social life. Guests often drop in unannounced and are invited to join the family for a meal. It is customary to bring a small gift when visiting.
BIBLIOGRAPHY
Bracker, Paul. "Will China Be Number One?" Time, 22 May 2000.
Cook, Sarah, et al., eds. Chinese Economy under Transition, 2000.
Davis, Deborah S. Consumer Revolution in Urban China, 2000.
"Demystifying China." The Economist, 4 April 2000.
Diamant, Neil J. Revolutionizing the Family: Politics, Love, and Divorce in Urban and Rural China, 2000.
Diemberger, Maria Antonia Sironi. Tibet: The Roof of the World between Past and Present, 2000.
Donald, Stephanie Hemelryk. Public Secrets, Private Spaces: Cinema and Civility in China, 2000.
Dorgan, Michael. "Fueled by Prostitution Boom, AIDS Virus Spreads in China." Philadelphia Inquirer, 22 December 2000.
Duke, Michael S. "World Literature in Review: China." World Literature Today, Autumn 1999.
Edmonds, Richard Louis, ed. People's Republic of China after Fifty Years, 2000.
Elliot, Dorinda. "More Rights—At a Cost." Newsweek, 29 June 1998.
Esherick, Joseph, ed. Remaking the Chinese City: Modernity and National Identity, 1900–1950, 2000.
Florcruz, Jaime A., et al. "Inside China's Search for Its Soul." Time, 4 October 1999.
Hsu, Immanuel Chung-yueh. The Rise of Modern China, 2000.
Hu, Shao-hua. Explaining Chinese Democratization, 2000.
Knapp, Ronald G. Walled Cities, 2000.
Leicester, John. "China Details Crackdown on Group." Philadelphia Inquirer, 16 January 2001.
Liang, Zhang, compiler, and Nathan, Andrew J., ed. The Tiananmen Papers, 2001.
The southern cuisine of Canton and Chaozhou is the lightest of the four. Seafood, vegetables, roast pork and chicken, and steamed fish are served with fried rice. Dim sum, a breakfast or lunch meal consisting of a combination of different appetizer style delicacies, is popular there.
Cooking reflects the country's history of famines caused by factors such as natural disasters and war. The Chinese eat parts and species of animals that many other cultures do not, including fish heads and eyeballs, birds' feet and saliva, and dog and cat meat.
Tea is the most common beverage. The Han drink it unsweetened and black, Mongolians have it with milk, and Tibetans serve it with yak butter. The Chinese are fond of sugary soft drinks, both American brands and locally produced ones. Beer is a common beverage, and there are many local breweries.
Food Customs at Ceremonial Occasions. Special occasions and large family gatherings often entail big, elaborate meals. In the north, dumplings called jiaozi are served at the Spring Festival and other special occasions. For the Moon Festival in midautumn, "moon cakes" are served, baked pastries filled with ground sesame and lotus seeds or dates. Banquets originating in the imperial tradition are ceremonial meals common to important state gatherings and business occasions. They usually are held at restaurants and consist of ten or more courses. Rice is not served, as it is considered too cheap and commonplace for such an event.
Basic Economy. In 1978, the country began the slow process of shifting from a Soviet-style economy to a more free market system, and in twenty years managed to quadruple the gross domestic product (GDP) and become the second largest economy in the world. However, the decentralization of the economy has often conflicted with the tight reign exercised by the highly centralized political system. The economy is burdened with widespread corruption, bureaucracy, and large state-run businesses that have been unable to keep pace with economic expansion. Inflation rates, which rose steeply in the 1980s, fell between 1995 and 1999 as a result of stricter monetary policies and government control of food prices. While the economy appears to be improving, the standard of living in rural areas remains poor, and the government faces problems collecting taxes in provinces that are becoming increasingly autonomous, such as Shanghai and Guangzhou.
China's economy during the past 30 years has changed from a centrally planned system that was largely closed to international trade to a more market-oriented economy that has a rapidly growing private sector and is a major player in the global economy. Reforms started in the late 1970s with the phasing out of collectivized agriculture, and expanded to include the gradual liberalization of prices, fiscal decentralization, increased autonomy for state enterprises, the foundation of a diversified banking system, the development of stock markets, the rapid growth of the non-state sector, and the opening to foreign trade and investment. Annual inflows of foreign direct investment rose to nearly $108 billion in 2008. China has generally implemented reforms in a gradualist or piecemeal fashion. In recent years, China has re-invigorated its support for leading state-owned enterprises in sectors it considers important to "economic security," explicitly looking to foster globally competitive national champions. After keeping its currency tightly linked to the US dollar for years, China in July 2005 revalued its currency by 2.1% against the US dollar and moved to an exchange rate system that references a basket of currencies. Cumulative appreciation of the renminbi against the US dollar since the end of the dollar peg was more than 20% by late 2008, but the exchange rate has remained virtually pegged since the onset of the global financial crisis. The restructuring of the economy and resulting efficiency gains have contributed to a more than tenfold increase in GDP since 1978. Measured on a purchasing power parity (PPP) basis that adjusts for price differences, China in 2009 stood as the second-largest economy in the world after the US, although in per capita terms the country is still lower middle-income. The Chinese government faces numerous economic development challenges, including: (a) reducing its high domestic savings rate and correspondingly low domestic demand through increased corporate transfers and a strengthened social safety net; (b) sustaining adequate job growth for tens of millions of migrants and new entrants to the work force; (c) reducing corruption and other economic crimes; and (d) containing environmental damage and social strife related to the economy's rapid transformation. Economic development has been more rapid in coastal provinces than in the interior, and approximately 200 million rural laborers and their dependents have relocated to urban areas to find work. One demographic consequence of the "one child" policy is that China is now one of the most rapidly aging countries in the world. Deterioration in the environment - notably air pollution, soil erosion, and the steady fall of the water table, especially in the north - is another long-term problem. China continues to lose arable land because of erosion and economic development. In 2006, China announced that by 2010 it would decrease energy intensity 20% from 2005 levels. In 2009, China announced that by 2020 it would reduce carbon intensity 40% from 2005 levels. The Chinese government seeks to add energy production capacity from sources other than coal and oil, and is focusing on nuclear and other alternative energy development. In 2009, the global economic downturn reduced foreign demand for Chinese exports for the first time in many years. The government vowed to continue reforming the economy and emphasized the need to increase domestic consumption in order to make China less dependent on foreign exports for GDP growth in the future.
GDP (purchasing power parity):
$8.789 trillion (2009 est.)
country comparison to the world: 3
$8.086 trillion (2008 est.)
$7.418 trillion (2007 est.)
note: data are in 2009 US dollars
GDP (official exchange rate):
$4.814 trillion (2009 est.)
GDP - real growth rate:
8.7% (2009 est.)
country comparison to the world: 4
9% (2008 est.)
13% (2007 est.)
GDP - per capita (PPP):
$6,600 (2009 est.)
country comparison to the world: 128
$6,100 (2008 est.)
$5,700 (2007 est.)
note: data are in 2009 US dollars
GDP - composition by sector:
agriculture: 10.9%
industry: 48.6%
services: 40.5% (2009 est.)
Labor force:
812.7 million (2009 est.)
country comparison to the world: 1
Labor force - by occupation:
agriculture: 39.5%
industry: 27.2%
services: 33.2% (2008 est.)
Unemployment rate:
4.3% (September 2009 est.)
country comparison to the world: 38
4.2% (December 2008 est.)
note: official data for urban areas only; including migrants may boost total unemployment to 9%; substantial unemployment and underemployment in rural areas
Population below poverty line:
2.8% (2007)
Household income or consumption by percentage share:
lowest 10%: 3.5%
highest 10%: 15%
note: data are for urban households only (2008)
Distribution of family income - Gini index:
41.5 (2007)
country comparison to the world: 54
40 (2001)
Investment (gross fixed):
42.6% of GDP (2009 est.)
country comparison to the world: 3
Budget:
revenues: $972.3 billion
expenditures: $1.137 trillion (2009 est.)
Public debt:
18.2% of GDP (2009 est.)
country comparison to the world: 108
15.6% of GDP (2008 est.)
Inflation rate (consumer prices):
-0.8% (2009 est.)
country comparison to the world: 9
5.9% (2008 est.)
Central bank discount rate:
2.79% (31 December 2008)
country comparison to the world: 125
3.33% (31 December 2007)
Commercial bank prime lending rate:
5.31% (31 December 2008)
country comparison to the world: 142
5.58% (17 December 2007)
Stock of money:
$2.434 trillion (31 December 2008)
country comparison to the world: 3
$2.09 trillion (31 December 2007)
Stock of quasi money:
$4.523 trillion (31 December 2008)
country comparison to the world: 4
$3.437 trillion (31 December 2007)
Stock of domestic credit:
$5.555 trillion (31 December 2008)
country comparison to the world: 4
$4.653 trillion (31 December 2007)
SOCIAL STRATIFICATION
Classes and Castes. Confucian philosophy endorses a hierarchical class system. At the top of the system are scholars, followed by farmers, artisans, and finally merchants and soldiers. A good deal of social mobility was possible in that system; it was common practice for a family to save its money to invest in the education and advancement of the oldest son. When the communists took control, they overturned this traditional hierarchy, professing the
ideals of a classless society. In fact, the new system still has an elite and a lower class. Society is divided into two main segments: the ganbu, or political leaders, and the peasant masses. According to the philosophy of the Communist Party, both classes share the same interests and goals and therefore should function in unison for the common good. In reality, there is a large and growing gap between the rich and the poor. Weathy people live in the cities, while the poor tend to be concentrated in the countryside. However, farmers have begun to migrate to the cities in search of work in increasing numbers, giving rise to housing and employment problems and creating a burgeoning class of urban poor people.
Symbols of Social Stratification. Cars, a rare commodity, are a symbol of high social and economic standing. Comfortable living accommodations with luxuries such as hot running water are another. Many government employees who could not otherwise afford these things get them as perks of the job. As recently as the 1980s, most people dressed in simple dark-colored clothing. Recently, more styles have become available, and brand-name or imitation brand-name American clothes are a marker of prosperity. This style of dress is more common in the cities but is visible in the countryside among the better-off farmers.
Many minority groups maintain their traditional attire. Tibetans dress in layers of clothes to protect themselves from the harsh weather. The women wrap their heads in cloth. Uighur women wear long skirts and bright-colored scarves; the men wear embroidered caps.
POLITICAL LIFE
Government. China is a communist state. The president is the chief of state and is elected by the National People's Congress (NPC) for a five-year term. However, the president defers to the decisions and leadership of the NPC. The NPC is responsible for writing laws and policy, delegating authority, and supervising other parts of the government. The highest level in the executive branch of the government is the State Council, which is composed of a premier, a vice premier, councillors, and various ministers. The State Council handles issues of internal politics, defense, economy, culture, and education. Its members are appointed and can be removed by the president's decree.
The country is divided into twenty-three provinces, five autonomous regions, and four municipalities. (Taiwan is considered the twenty-third province.) At the local level, elected deputies serve in a local people's congress, a smaller-scale version of the national body, which is responsible for governing within the region and reports to the State Council.
Leadership and Political Officials. The Chinese Communist Party (CCP) is in effect the only political party. Eight registered small parties are controlled by the CCP. There are no substantial opposition groups, but there are two—the Falun Gong sect and the China Democracy Party—that the government sees as potential threats. The Falun Gong in particular has received international attention because of the government's attempts to suppress it. The organization claims that it is a meditation group based on Buddhist and Taoist philosophies; the government considers it a cult that threatens public order and the state. The government has sent hundreds of Falun Gong members to labor camps and has imprisoned many of its leaders. The group is legal in Hong Kong.
Social Problems and Control. The legal system is a complex mixture of tradition and statute. A rudimentary civil code has been in effect since 1987, and new legal codes since 1980. The country continues to make efforts to improve its laws in the civil, administrative, criminal, and commercial areas. The highest court is the Supreme People's Court, which supervises lower courts, hears appeals, and explains national laws.
The crime rate is rising. Pickpocketing and petty theft are the most common offenses, but there are increasing numbers of incidents of violent crime. Prostitution and drug use are also growing problems.
Public humiliation is a common punishment for crimes such as petty theft. Prisons often put inmates to work in farming or manufacturing. The death penalty is assigned not only for violent crimes but also for acts such as bribery and corruption. The government has been known to deal harshly with political dissidents. Many participants in the 1989 Tiananmen Square protests were imprisoned, and the government continues to punish severely any displays of opposition. The country has been cited numerous times for human rights violations.
Military Activity. The People's Liberation Army (PLA) includes the Ground Forces, the Navy (both marines and naval aviation), the Air Force, and the Second Artillery Corps (strategic missile force). The People's Armed Police, consisting of internal security troops, is supposedly subordinate to the Ministry of Public Security but is included in the "armed forces" and in times of war acts as an adjunct to the PLA. The government quotes a figure of over $12 billion (1.2 percent of the GDP) for military expenses, but many Western analysts place the amount several times higher. Service in the PLA is voluntary and highly selective. Both women and men can serve, and the army conscientiously upholds communist ideals of equality; there are no ranks in the army.
As of 1998, there were 2.8 million people in the armed forces: 1,830,000 in the army, 420,000 in the air force, and 230,000 in the navy. That year, however, the government introduced a plan to cut the armed forces by half a million.
Amendments to the Constitution
(Adopted at the First Session of the Seventh National People's Congress on April 12, 1988, and promulgated by No.8 Proclamation of the National People's Congress of the People's Republic of China)
Article 1 Article 11 of the Constitution shall include a new paragraph, which provides that: The state permits the private sector of the economy to exist and develop within the limits prescribed by law. The private sector of the economy is a complement to the socialist public economy. The state protects the lawful rights and interests of the private sector of the economy, and exercises guidance, supervision and control over the private sector of the economy.
Article 2 The fourth paragraph of Article 10 of the Constitution, which provides that no organization or individual may appropriate, buy, sell or lease land, or unlawfully transfer land in other ways, shall be amended as: No organization or individual may appropriate, buy, sell or unlawfully transfer land in other ways. The right to the use of the land may be transferred in accordance with the law.
Amendments to the Constitution of the People's Republic ofChina
(Adopted at the First Session of the Seventh National People's Congress on March 29, 1993, and promulgated by No.8 Proclamation of the National People's Congress of the People's Republic of China)
Article 3 The final two sentences of the seventh paragraph of the Preamble to the Constitution, which reads: "The basic task of the nation in the years to come is to concentrate its efforts on socialist modernization. Under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought, the Chinese people of all nationalities will continue to adhere to the people's democratic dictatorship and the socialist road, steadily improve socialist institutions, develop socialist democracy, improve the socialist legal system, and work hard and self-reliantly to improve the socialist legal system, and work hard and self-reliantly to modernize the country's industry, agriculture, national defense and science and technology step by step to turn China into a socialist country with a high level of culture and democracy., are amended as follows: "China is in the primary stage of socialism. The basic task before the nation is the concentration of efforts of socialist modernization construction in accordance with the theory of building socialism with Chinese characteristics. Under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought, the Chinese people of all nationalities will continue to adhere to the people's democratic dictatorship and the socialist road and to uphold reform and opening to the outside world, steadily improve socialist institutions, develop socialist democracy, improve the socialist legal system, and work hard and self-reliantly to modernize the country's industry, agriculture, national defense and science and technology step by step to build China into a strong, prosperous culturally advances, democratic socialist nation."
Article 4 The following sentence is added to the end of the tenth paragraph of the Preamble to the Constitution: "Multi-party cooperation and the political consultation system under the leadership of the Communist Party of China shall continue and develop for the extended future."
Article 5 Article 7 of the Constitution, which reads: "The state economy is the sector of socialist economy under ownership by the whole people; it is the leading force in the national economy. The state ensures the consolidation and growth of the state economy." is amended as follows: "The state-owned economy, i.e. the socialist economy with ownership by the people as a whole, is the leading force in the national economy. The state will ensure the consolidation and development to the state-owned economy."
Article 6 The first paragraph of Article 8 of the Constitution, which reads: Rural people's communes, agricultural producers' cooperatives and other forms of cooperative economy, such as producers', supply and marketing, credit and consumers' cooperatives, belong to the sector of the socialist economy under collective ownership by the working people. Working people who are members of rural economic collectives have the right, within the limits prescribed by law, to farm plots of cropland and hilly land allotted for their use, engage in household sideline production and raise privately owned livestock," is revised as follows: "In rural areas the responsibility system, the main form of which is household contract that links remuneration to output, and other forms of cooperative economy, such as producers', supply and marketing, credit and consumers' co-operatives, belong to the sector of socialist economy under collective ownership by the working people. Working people who are all members of rural economic collectives have the right, within the limits prescribed by law, to farm plots of cropland and hilly land allotted for their private use, engage in household sideline production and raise privately owned livestock."
May 30, 2010
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Library>China ABC>Government>Legal System
The Judicial System
The judicial system of the People's Republic of China is a complete compact set of people's judicial system, which has played a unique role in the state system.
Broadly speaking, the judiciary in China means law-enforcement activities conducted by the country's judicial organs and organizations in handling prosecuted or non-prosecuted cases. Judicial organs here mean public-security organs (including state security organs) responsible for investigation, prosecution, trial and execution of cases, the prosecutors, the trial institutions and the custodial system. Judicial organizations here refer to lawyers, public notaries, and arbitration organizations. The latter, though not part of the judicial apparatus, are an integral part and a link in the overall judiciary system.
The judiciary system comprises sub-systems for investigation, prosecution, trial procedures, jails, judicial administration, arbitration, lawyers, public notaries and state compensation.
The Trial System
The trial system refers to the court system governing the establishment of courts, judges, and trials.
I. Organization, Functions and Powers of the People's Courts
The people's courts of the People's Republic of China are the judicial organs of the state. The People's Republic of China establishes the Supreme People's Court, local people's courts, and special people's courts.The Supreme People's Court supervises the administration of justice by the people's courts at various local levels and by the special people's courts. People's courts at higher levels supervise the administration of justice by those at lower levels. Local people's courts are established according to the administrative divisions, while special people's courts are set up where necessary.
The people's courts try all cases publicly, except those involving state secrets, individual privacy or minors. The accused has the right to defense. Besides the right to defend himself/herself, he or she may also be represented by a lawyer or ask near relatives or guardians to defend him/her.
The Supreme People's Court
The Supreme People's Court, located in Beijing, capital city of China, is the highest judicial organ in China. The Supreme People's Court is responsible to the National People's Congress and its Standing Committee. The Supreme People's Court supervises the administration of justice by the people's courts at various local levels and by the special people's courts. The Supreme People's Court exercises the following functions and powers:
(1) Trying the cases that the Supreme People's Court claims to be heard by itself; (2) hearing appeals against the legal decisions of higher courts and protested cases submitted by the Supreme People's Procuratorate in accordance with legal procedures; (3) supervising the work of local courts and special courts at every level, overruling wrong judgments they might have made, and deciding to review the cases itself or to direct the lower-level courts to conduct a retrial; (4) checking the cases of death penalty reported by high people's courts; and (5) giving a judicial explanation of the law in the judicial process which becomes effective nationally.
Local people's courts at various levels
The local people's courts consist of the high people's courts, the intermediate people's courts and the primary people's courts.
The high people's courts are established at the levels of provinces, autonomous regions and municipalities directly under the Central Government. They exercise the following functions and powers:
(1) Trying criminal, civil and administrative cases as courts of first hearing under their jurisdiction; (2) hearing appeals against the legal decisions of intermediate courts and appeals proposed by the people's procuratorates at the corresponding level according to legal procedures; (3) overruling wrong judgments the lower-level courts might have made, deciding to review the cases themselves or to direct the lower-level courts to conduct a retrial; and (4) checking the cases of death sentence with a reprieve reported by intermediate people's courts and the cases of death penalty authorized by the Supreme People's Court.
The intermediate people's courts areestablished at the levels of cities with districts and prefectures. Their main functions and powers are as follows:
(1)Trying criminal, civil and administrative cases as courts of first hearing under their jurisdiction; (2) hearing appeals against the legal decisions of primary courts and appeals proposed by the people's procuratorates at the corresponding level according to trial and supervising proceedings; and (3) deciding to review the cases themselves or to direct the primary courts to conduct a retrial, overruling wrong judgments the primary courts have made according to legal procedures.
The primary people's courts consist of those courts set up in counties, autonomous counties, cities not divided into districts and municipal districts. Their main functions and powers are as follows:
(1)Trying all cases as courts of first hearing which are not included in the spheres of higher-level courts; (2) reviewing the cases themselves and overruling wrong judgments they have made according to the trial procedures; and (3) directing people's mediation committees in their work.
Special people's courts
Special people's courts are courts set up in special departments for special cases wherever necessary. Currently, there are three special court systems in China, namely, the military judicial system, the railway transport court system and the maritime court system.
Military courts are set up at three levels: the PLA Court, Great Military Region, Services and Arms, and grassroots military courts.
Maritime courts are special courts set up to try first-hearing maritime or sea-shipping cases for the purpose of exercising judicial jurisdiction over maritime affairs. Maritime courts handle maritime or commercial cases between Chinese legal persons/citizens, between Chinese legal persons/citizens and foreign legal persons/citizens, and between foreign legal persons/citizens.
The Railway transportation tribunals are special courts set up along railways that mainly try criminal cases investigated by railway public-security authorities and filed by railway prosecutors and cases involving economic disputes.
II. The Trial System of the People's Courts
Open Trials
Except in special circumstances as specified by law, all cases in the people's courts are heard in public. For cases that, by law, should be open to the public, and open means the entire process should be open to public auditing and to the press. The court should announce before the trial opens the outline of the case, the name of the litigant, the time and the place of the trial. Even cases that are not tried openly should be publicized when the verdict is passed.
In accordance with the law, the following four types of cases are not open to the public: (1) cases involving state secrets; (2) cases involving personal privacy; (3) cases involving crimes committed by minors; and (4) cases involving divorce and trade secrets may, upon request by litigants, not be open to the public.
Defense System
The Constitution and the law on the organization of courts provide that the accused is entitled to the right to a proper defense. The law on criminal procedure further provides that the courts have the obligation to ensure that the accused obtains defense, and sets forth specific procedures that any suspects or accused may, in addition to exercising the right to defend themselves, appoint one or two representatives to defend them.
Challenge System
The challenge system refers to a system in which judicial officers shall or are required to withdraw from the cases because of their special relationship with these cases or litigants, which may undermine the impartiality of the judgment.
In accordance with criminal procedures, judges, prosecutors and investigators who have special types of relations with litigants to the suit that may affect the fair handling of the case shall voluntarily withdraw or be challenged by litigants or their representatives to withdraw from the cases.
System of Collegiate Panels
Article 10 of the Law on the Organization of People's Court provides that courts shall practice a system of collegiate panels when trying cases. Except for first-instance simple civil cases and other cases otherwise provided for by the law, all cases are tried with a collegiate panel present. This system refers to a panel of at least three judges or a combination of at least three judges and People's Assessors, as opposed to trials conducted by one judge alone. The composition of the collegiate panel should be an odd number, usually three, and the principle of the minority submitting to the majority is observed, provided that the opinions of the minority are recorded in the court log. The judges and People's Assessors enjoy the same rights.
Second Instance Being Final
The courts have to try cases on two levels, with the second instance being the final judgment. This means a case is closed after going through two levels of trial. Should the litigant not agree with the judgment or ruling of the first instance, he or she may, within a specified period of time, appeal to the higher-level court. If the procuratorate believes that the first-instance ruling or judgment is indeed mistaken, it may, within a specified period of time, protest the ruling or judgment to the higher court. If, within the specified period of time, the litigant fails to appeal and the procurator fails to protest, then the first-instance judgment or ruling stands as the legally binding judgment or ruling.
III. Judge System
Judges exercise state judicial power in accordance with law. They include presidents and vice presidents of courts at various levels, members of judicial committees, presidents and vice presidents of tribunals, judges and assistant judges. The responsibility of judges is to participate in collegiate panels or be independent judges at trials.
Presidents of courts at local levels are elected and removed by the People's Congress at the same level and the tenure of the presidents is the same as the People's Congress; the president nominates the vice president, members of the Judicial Committee, presiding judges, deputy presiding judges and judges for appointment and removal by the Standing Committee of the People's Congress at the same level. Assistant judges of a court are appointed and removed by the president of the court. Judges sitting at special courts are elected and removed with procedures separately set forth by the Standing Committee of the National People's Congress.
Chapter 4 of the Judge Law of the People's Republic of China, promulgated on February 28, 1995, specifies that judges be elected with the following qualifications:
(1) A citizen of the People's Republic of China;
(2) At least 23 years of age;
(3) Supports the Constitution of the People's Republic of China;
(4) In good political, professional and moral standing;
(5) In good health; and
(6) A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor's degree in JD with a full year of working experience; those holding a Master's or Ph.D. degree in JD are not subject to the working-experience limit described above.
Judges shall not concurrently hold positions in the Standing Committee of the People's Congress, executive offices, the procuratorate, business, non-profit institutions, or in the legal profession.
Judges who have lost their citizenship, been found to be incompetent, been unable to perform their duties for a protracted period of time due to disciplinary violations, criminal records or health reasons, shall be removed from their position in accordance with legal procedures.
Judges are divided into 12 levels, with the president of the Supreme People's Court being the Chief Justice and those between Level 2 and 12 being labeled Justice, Senior Judge and Judge. The level of seniority is determined by the judge's position, performance, professionalism and seniority. Promotions are based on annual performance reviews, which are conducted by the courts where the judges serve. Performance reviews shall be conducted in an objective, impartial manner and combine evaluations by both superiors and subordinates. Judges are rewarded for their outstanding performance and contributions. Rewards can be public recognition of performance, Third Reward, Second Reward, First Reward and the conferring of an honorary title. Judges who engage in any bad acts will be disciplined to varying degrees. These can be warnings; a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.
Judges enjoy rights of retirement, resignation, training, petition and complaint. After retirement, they shall be entitled to pension insurance and other benefits as prescribed by the state.
The Prosecution System
I. Organization, Functions and Powers of the People's Procuratorates
The People's Republic of China establishes the Supreme People's Procuratorate, local people's procuratorates, and special people's procuratorates such as military procuratortates.
People's procuratorates at higher levels direct the work of those at lower levels. Such a top-down structure reflects the pyramid structure of the country's prosecution, in which the superior leads the subordinate. This is noticeably different from the court system in which the higher court supervises the lower court. This centralized system is created to maintain the consistency of the country's legal structure.
The Supreme People's Procuratorate is the highest procuratorial organ. The Supreme People's Procuratorate leads local and special people's procuratorates. Local people's procuratorates include provincial, autonomous regional and municipal people's procuratorates and their branches, as well as procuratorates at the autonomous prefecture, cities directly under provincial governments; county, city, autonomous city and urban district levels. Special procuratorates include military and railway transportation prosecution. Procuratorates are established at levels corresponding to those of courts so that cases can be prosecuted in accordance with legal procedures.
In accordance with the Law on the Organization of People's Procuratorates and other related laws, the people's procuratorates exercise the following functions and powers:
1.Exercise the power of prosecution on cases of treason, separatism and major crimes seriously hindering the uniform implementation of the state's policies, laws, writs, and administrative decrees;
2.Investigate criminal cases they directly handle;
3.Review cases investigated by public security and state security authorities to decide if arrests, prosecutions are warranted; supervise the legality of such investigations;
4.Initiate public prosecution and support public prosecution for criminal cases; supervise the legality of trials conducted by courts;
5.Supervise the rulings and judgments on criminal cases and the legality of activities of jails, detention centers and reform-through-labor institutions;
6.Supervise civil and administrative trials of courts.
II. System of Prosecutors
Prosecutors include chief prosecutor and deputy prosecutor of people's procuratorates at all levels, members of the procuratorial committees, prosecutors and assistant prosecutors.
The chief prosecutor is elected and removed by the people's congress at the same level, but the appointment and removal of local chief prosecutors have to be reported to the chief prosecutor of higher procuratorates who, in turn, will submit the appointments and removals to the standing committee of the people's congress at the same level for approval.
The appointment and removal of the deputy chief prosecutor, members of the procuratorial committee and prosecutors must be submitted to the standing committee of the people's congress at the same level, but the appointment and removal of assistant prosecutors can be approved by the chief prosecutor.
Prosecutors must meet the following conditions:
(1)Be a citizen of the People's Republic of China;
(2)Be at least 23 years of age;
(3)Support the Constitution of the People's Republic of China;
(4)Be in political, professional and moral standing;
(5)Be in good health; and
(6)A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor's degree in law with a full year of working experience; those holding a Master's or Ph.D. degree in law are not subject to the working-experience limit described above.
Prosecutors are divided into 12 ranks, with the highest being the Chief Prosecutor of the Supreme People's Procuratorate, followed by Grand Prosecutors, Senior Prosecutors and prosecutors (level 2 through 12). The ranking of prosecutors is determined by a range of factors, including their position, performance, professionalism and seniority. Awards are typically a combination of moral and material incentives. These include public recognition of achievements, Third Prize, Second Prize, First Prize and the conferring of an honorary title. Penalties include warning, a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.
Prosecutors are free from interference in exercising their judicial powers from any administrative authorities, social organization or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures. Prosecutors receive legal protection for their corporal, property and residential safety. Prosecutors receive remuneration for their performance of duties and enjoy insurance and other benefits. Prosecutors are entitled to powers and working conditions befitting their performance of duties; and they have the right to resign, petition or accuse.
System Governing Investigations
In China, public security organs are an important part of the government. They are both an administrative arm and a judicial organ since they are in charge of public security and criminal investigations, playing a unique role in cracking down on crimes and maintaining social security.
The system governing investigations in China includes:
1.Acceptance and Establishment of Cases
Public security organs should immediately accept, inquire about, take notes of and hear cases of suspects turned in, reported or brought to the police by citizens or suspects who turn themselves in. Those that meet conditions should be accepted and filed as a case and for complicated and material cases, an investigation plan and, if necessary, necessary measures have to be taken.
2.Procedures for Criminal Investigations
For criminal cases that already been filed with the police, investigations should be launched for a thorough and impartial collection of evidence that may determine whether the suspect is guilty or innocent and, if guilty, whether it is a felon or a misdemeanor. Depending on actual needs, various detective means and measures will be taken in strict compliance with statutory procedures.
3.Procedures for Detentions and Arrests
Public security organs may proceed to detain criminals caught in the act or material suspects in accordance with statutory procedures; they may also seek approval from procuratorates for an arrest warrant for suspects for whom sufficient evidence of incrimination exists and a sentence is likely, and for whom measures such as obtaining a guarantor in anticipation of trial out of custody and surveillance of residence is insufficient for ensuring social security and order.
Procedures for Case Transfer and Prosecution
Cases concluded by public security organs for which the facts are clearly established, evidence is verified and sufficient, the nature of crime and name of felony correctly defined, legal procedures completed and for which criminal liabilities should be prosecuted, should be transferred to the procuratorate at the same level to determine whether public prosecution is warranted.
5.Procedures for Evidence Gathering
Detectives should strictly follow statutory procedures in collecting all kinds of evidence that can prove whether a suspect is guilty or not, or how serious the felony is. Extortion of confession through torture and collecting evidence through threat, inducement, deception or other illegal means are strictly forbidden.
The Jail System
Article 3 of the Prison Law states that prisons should follow the principle of combining penalty with reform, education with labor, in a bid to reform prisoners into law-abiding citizens.
Prisons in China are divided into two categories:
Prisons incarcerating inmates who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Male and female inmates are warded separately, with female wards managed by female law enforcement personnel. Prisons may also be divided into wards for felons and criminals of misdemeanor.
Penitentiaries for juvenile delinquents, criminals of minor age who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Special protection is extended to juvenile delinquents, with customized procedures in place to cater to their needs.
Prison Setup and Staffing
The Prison Law provides that the State Council judicial administration approves the establishment, elimination and relocation of prisons in line with historical, economic and natural factors. This provision is designed to optimize the distribution of prisons and ensure the unified, effective and accurate execution of penalties. Prisons usually have one warden and several deputy wardens and various administrative departments and staff. In addition to administrative offices and commercial institutions, prisons also have sanitary and education facilities.
The Prison Law provides that the managerial personnel of prisons are members of the police force who enjoy the same legal status as public security and traffic police.
Financial System of Prisons
The Prison Law states that the state ensures funding for prisons in reforming inmates. Expenses related to prison police, reformation of prisoners, daily life of inmates, maintenance of prison facilities and other items are budgeted for in the central government's planning. The state provides production facilities and funding needed for prison labor. Land, mineral resources and other natural resources legally employed by prisons, as well as the property of prisons are protected by law; no entity or individual can trespass or damage those properties.
The Arbitration System
The arbitration system is an important component of the judicial system in China. The Arbitration Law of the People's Republic of China, promulgated on August 31, 1994, unified arbitration practices across the country and harmonizes China's arbitration system with internationally accepted principles, systems and practices.
I. Basic Principles of the Arbitration System
1.Voluntarism
Parties to a dispute should voluntarily reach an agreement to resolve their dispute through arbitration. An arbitration committee shall not consider a case without application from a party to the agreement.
2.Independence
Arbitration should be independent of any interference from administrative bodies, social organizations or individuals.
(1)An arbitration agency is not part of the administrative apparatus.
(2)Arbitration institutions are established geographically, independent from each other; they have no affiliation among themselves.
(3)Arbitration committees, arbitration associations and arbitration tribunals are also independent from each other, with arbitration tribunals adjudicating cases free from interference by arbitration associations or arbitration committees.
(4)Courts must exercise the power of supervision over arbitration activities; however, arbitration is not dependent on adjudication and arbitration institutions are not dependent on courts.
3.Legality and Impartiality
The Arbitration Law provides that arbitration should be based on facts, comply with laws and resolve disputes in an impartial and reasonable manner.
II. Essential Components of Arbitration
1.Arbitration Agreement
This demonstrates the principle of voluntary participation of the litigants in arbitration and also guarantees the implementation of the principle in arbitration. The Arbitration Law specifies that there be a written arbitration agreement. The agreement can be included in a contract or an independent agreement. The contents of the agreement should be consent on arbitration, concrete matters to be arbitrated and the chosen arbitration body.
2.Arbitration or Adjudication
This practice represents a respect for the parties' right of choice as to the way to settle their dispute. It means: If the parties have reached an agreement on arbitration, it rules out the jurisdiction of the court over the dispute; the parties can only apply for arbitration to an arbitration body rather than bringing action to the court.If one party does not keep the agreement on arbitration, and brings a suit to the court, the other party has the right to ask the court to reject the appeal according to the Arbitration Law.
3.One Instance Being Final
Article 9 of the Arbitration Law specifies that arbitration adopt the rule of one instance being final. This means that the ruling takes effect immediately upon pronunciation. Even if the parties are not happy with the ruling, they cannot file a suit to the court for the same dispute or apply for arbitration or reconsideration to arbitration organizations.
III. Arbitration Bodies
1. Arbitration Association
China Arbitration Association is a self-disciplinary organization of arbiters. It supervises arbitration committees and their members and the behaviors of arbiters in accordance with their constitution. Arbitration committees are members of the China Arbitration Association. The constitution of the association is made by a national congress. It makes arbitration rules in accordance with the Arbitration Law and the Civil Procedure Law.
2. Arbitration Committees
Arbitration committees are executive bodies established in capital cities of provinces, municipalities directly under the Central Government and autonomous regions. They can also be set up in other cities if necessary.
Arbitration committees are formed with members from government departments and chambers of commerce and registered with the judicial administration of the province, municipality directly under the Central Government and autonomous region.
An arbitration committee consists of one chairman, 2-4 vice-chairmen, and 7-11 members. The chairman, vice chairmen and members should be legal and trade experts and individuals with working experience. The number of legal and trade experts should not be less than one third of the membership of an arbitration committee.
3.Arbitration Tribunals
After taking up an arbitration case, an arbitration committee does not directly arbitrate the case; instead, it forms an arbitration tribunal to adjudicate the case.
Organizationally, an arbitration tribunal can be a collegiate panel or a sole arbitrator. An arbitration panel should be composed of three arbiters, one of whom should the chief arbiter who presides over the arbitration.
In case the parties agree to form a tribunal of three arbiters, each party should designate, or ask an arbitration committee to designate, one arbiter, and the third arbiter, who should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties, should be the chief arbiter. In case the parties agree to form a sole-arbiter tribunal, the arbiter should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties.
IV. China International Economic and Trade Arbitration Committee
The China International Economic and Trade Arbitration Committee is the only arbitration agency in China that handles international economic and trade disputes. It is headquartered in Beijing, with branch offices in Shenzhen and Shanghai.
The Lawyer System
Article 2 of the Lawyers Law of the People's Republic of China, promulgated on May 15, 1996, defines lawyers as professionals who have obtained a practicing license through legal means to provide legal services.
I. Qualifications for Licensing
To practice, lawyers must first obtain professional qualifications and apply for a license after probation. After obtaining qualifications, they must receive the license for practicing in accordance with legal procedures in order to practice law as a lawyer. Only then can they enjoy the rights of lawyers while assuming duties accordingly.
Individuals who have obtained legal qualifications may retain their qualifications and not engage in the legal profession for a period of time. This is known as separation of legal qualifications from legal practicing.
Lawyers should register their practicing license once a year; unregistered licenses are not valid. Registration is administered by judicial authorities above the Judicial Bureau at the provincial (municipal or autonomous regional) level. If necessary, registration can also be administered by judicial bureaus at the prefectural (city or county) level with authorization from higher judicial authorities.
Licensing Restrictions
In light of the Lawyers Law, lawyers should practice at one law firm rather than at two or more simultaneously. No geographical restrictions should be imposed. Incumbent government office holders should not concurrently be lawyers. While serving on the Standing Committee of the People's Congress at various levels, lawyers should not practice. Unlicensed persons should not practice as lawyers or represent or defend clients for a profit. Persons engaging in legal teaching and research should not be partners in a partnership or a cooperative law firm.
II. Law Firms
The Lawyers Law provides for three forms of law firms: state-funded, cooperative and partnership. Different operational mechanisms are permitted for different forms of law firms and they assume different legal obligations (civil liabilities).
III. Rights and Obligations of Lawyers
1.Rights
Investigation
Article 31 of Lawyers Law provides that when handling legal cases, lawyers, subject to permission by relevant entities or individuals, investigate them for fact-finding purposes.
Access to documents and files
The Criminal Procedure Law provides that the defense attorney may, from the day the procuratorate reviews a lawsuit, access, transcribe or copy judicial documents and technical appraisement documents of the case; they may also, from the day the court handles the case, access, transcribe or copy factual documents used in the case. Article 30 of the Lawyers Law provides that lawyers participating in lawsuits may, in compliance with procedural law, access documents related to the case.
Meet and communicate with persons with limited personal freedoms
Appear in court and participate in lawsuits
Refuse to defend and represent any client
Lawyers' corporal rights are inviolable
2.Obligations
Abide by the Constitution and laws and observe codes of ethics and professional discipline
Defend and represent clients unless circumstances require otherwise
Provide legal aid
Maintain confidentiality
Article 33 of the Lawyers Law states that lawyers should maintain state secrets and commercial secrets known to them in the practice of law and they should not reveal the privacy of their clients.
Refrain from accepting special cases
Article 34 of the Lawyers Law states that lawyers should represent both parties to a dispute at the same time. Article 36 provides that lawyers who have served as judges and prosecutors should not represent or defend clients within two years of retirement from the court or procuratorate.
Refrain from representing clients in private
Refrain from profiting from parties to a dispute by taking advantage of the convenience of legal service or accept money or gifts from clients.
Refrain from meeting judges and prosecutors in violation of rules
Refrain from giving gifts to or bribe judges, prosecutors, arbiters and other related personnel, or prompting or instigating their clients to bribe.
Refrain from hampering testimony giving
Article 35 of the Lawyers Law provides that lawyers should not engage in perjury, hide facts or threaten or prompt others to commit perjury, hide facts or interfere in the legal collection of evidence by the other party.
Refrain from disturbing the order of a court of law or an arbitration tribunal.
The Mediation System
Mediation is an effort by a third party to encourage parties to a dispute to voluntarily reach an agreement to resolve their dispute. There are currently four types of mediation practices in China:
(1)Civil mediation. Mediation by People's Mediation Committees outside the court.
(2)Judicial mediation. Mediation by a court of law in civil and economic disputes and minor criminal cases inside the court. For marital cases, inside-court mediation is a necessary procedure. Whether or not to seek judicial mediation is for litigants to decide. Mediation is not a necessary procedure. A court's mediation document is as valid as its verdict.
(3) Administrative mediation. It has the following two types. One is outside-the-court mediation by grassroots governments such as a township government in ordinary civil disputes; the other is outside-the-court mediation by government departments in compliance with legal provisions in specific civil disputes, economic disputes or labor disputes.
(4) Arbitration mediation. Mediation by arbitration bodies in arbitration cases. Arbitration is called upon only if mediation fails to resolve the differences. This is also an outside-the-court mediation.
Failure of Mediation
Article 91 of the Civil Procedure Law provides that a court of law should adjudicate in a timely fashion if mediation fails to produce an agreement or if one party retracts before the mediation document arrives.
The Notary System
In the past, public notaries were state offices representing the state in witnessing legal relations in civil matters. State notary offices, at the request of applicants, notarize legal acts and the truthfulness and legality of legal documents and facts in order to protect public property and safeguard the lawful rights and interests of citizens. Since October 1, 2000, the Ministry of Justice has implemented a plan to reform the notary system. Under the new scheme, public notary offices are no longer administrative bodies; rather, they are non-profit entities with a legal-person status that independently conduct notary business to meet market demand and assume full responsibility for their operations. In the future, the state will no longer approve the establishment of public notary offices as administrative bodies. Public notaries will be recruited openly through examinations administered by the Ministry of Justice.
I. Setup of Public Notary Offices
Public notary offices are set up in municipalities directly under the central government, counties (autonomous counties), and cities. Subject to approval from judicial authorities of provinces, autonomous regions and municipalities, districts of cities may also set up public notary offices. All the offices are independent of each other.
Each office should have a director and a deputy director who should be notaries themselves. The qualifications of notaries are the same as that of judges and prosecutors.
II. Scope of Business
The scope of business of public notary offices is as follows:
1. Notarize civil legal acts such as contracts, trusts, wills, gifts, division of property, and adoption of children;
2. Notarize facts that amount to civil legal acts such as birth, death, marriage, divorce, kinship, identity, degree, and experience;
3. Notarize documents that amount to civil legal acts such as authenticity of signatures and seals on certificates, consistency of copies of certificates, excerpts, translations and photocopies with the originals;
4. Notarize the enforceability of creditor documents such as repayment agreements and contracts on recovery of debts;
5. Auxiliary business, such as preservation of evidence, maintenance of wills or other documents, drafting notary documents on behalf of clients, notarizing the opening of lottery draws, etc.
III. Validity of Notarization
Notarized documents are good for the following four purposes:
1. Evidence.
Article 67 of the Civil Procedure Law states, Legal acts, legal facts and documents that have been notarized through legal procedures should be regarded as a basis for establishing facts, except where opposing evidence is sufficient to overrule the notarized documents.
2. Enforceability.
At present, this is limited only to the recovery of debts and goods. Liability documents notarized by public notaries are enforceable; if one party fails to comply, the other party can apply to the local grassroots court that has jurisdiction for enforcement.
3. Legality.
This means certain legal acts take effect and become legally binding only after they are notarized. These include adoption of children and marriage registration between Chinese citizens and foreigners.
4.Extraterritoriality.
Notarized documents are legally valid outside China. This is an extension of the inherent legal effect of notarized documents abroad. According to international practice, notarized documents sent by Chinese citizens and legal entities for use abroad can take legal effect and be accepted by the host country only after they are certified by the Chinese Foreign Ministry and Foreign Affairs Offices of the provinces, autonomous regions and municipalities or foreign embassies or consulates in China.
IV. Procedures
Public notary offices and persons applying for notarization should observe the following procedures:
1.Application and Acceptance of Applications
Except for wills and adoption, which require the applicant to go to the public notary office in person, citizens or legal persons can authorize an agent to handle the notarization procedures on their behalf. Applications should be filed with a public notary office that has jurisdiction and an application form should be filled out and be affixed with a signature or seal. Applications should come with other supporting documentation such as ID, letter of authorization, documents to be notarized, property ownership certificates or other materials. The public notary office should make a preliminary decision whether to accept the application or not upon receipt of application documents.
2.Review
An important link in notarization, public notaries should carefully review the number of applicants, identity, qualifications, capability of civil acts, intentions of applicants and applicable rights. They should also verify whether the acts, facts or documents to be notarized are true and legal, whether the documents to be notarized are complete, whether the wording is accurate, and whether the signature or seal is complete.
3.Certification
Public notaries should produce a public notary certificate for qualified applicants.
4. Special Procedures
These refer to procedures required for special types of public notarization, such as tendering and bidding, opening of lottery draws and auction bids. In such cases, public notaries should be at the scene themselves and read a public notary statement regarding what is truthful and legal. Furthermore, they should produce a notary document and deliver it to applicants within seven days of notarization.
5. Reconsideration
Applicants who object to decisions given by a public notary office not to accept an application, refuse to notarize or withdraw a public notary document may apply within a specified period of time to the judicial authorities for reconsideration; those who object to the reconsideration decision may file a suit to a court of law within the specified period of time.
The State Compensation System
Article 2 of the Law on State Compensation, passed on May 12, 1994 by the Eighth National People's Congress states, Citizens, legal persons or other organizations have the right to seek compensation from the state if state organs and office holders abuse their power and infringe upon their lawful rights and interests and have caused damages thereof.
The State Compensation Law specifies two kinds of compensation: administrative and criminal.
Administrative Compensation
The state should assume the responsibility of compensation if government offices or their staff abuse their power and infringe upon the lawful rights and interests of citizens, legal persons or other organizations and have caused damages thereof. Administrative compensation is the primary component of state compensation.
Claimants of administrative compensation should first file their claim with the administrative body responsible for compensation; they may also raise their claim while applying for administrative reconsideration or filing an administrative suit. They should not directly file a suit without first going through the administrative body responsible for compensation.
Criminal Compensation
Criminal compensation applies when the judicial authorities wrongly detain or arrest citizens or wrongly adjudicate cases.
A compensation committee composed of three to seven judges should be set up in a court above the intermediate level.
Claimants of criminal compensation should first file their claim with the body responsible for compensation; they may also apply to higher authorities for administrative reconsideration within 30 days of expiry of the term if compensation is rejected after expiry of the term, or if they object to the amount of compensation.
Compensation-paying bodies, reconsideration bodies or courts shall charge no fees on compensation claimants.
State compensation is paid in monetary form. Whenever possible, recovery or reinstatement of property should be implemented.
Compensation expenditures should be budgeted for the state financial organs and charged by governments at all levels.
Article 33 of the State Compensation Law specifies how foreign-related state compensation is calculated: This law applies to foreign individuals, enterprises and organizations within the territory of the People's Republic of China. Where the home country of the foreign individual, enterprise or organization does not protect or limits the rights to state compensation of individuals, enterprises or organizations of the People's Republic of China in that country, the People's Republic of China will reciprocate that policy toward individuals, enterprises or organizations of that country. This provision reflects both China's respect for the rights of foreign individuals, enterprises and organizations and its sovereignty and dignity.
The Legal Aid System
China's legal-aid system is still in an embryonic stage. Article 34 of the revised Criminal Procedure Law of the People's Republic of China, passed on March 17, 1996, states, For public-prosecuted cases, the court can designate a lawyer who provides legal assistance to defend the accused if the accused fails to appoint a defense attorney for economic or other reasons. This is the first time in the history of Chinese legislation that legal assistance was written into law. The Lawyers Law, passed on May 15, 1996, provides more specifics with regard to legal assistance. These provisions define the scope of legal assistance and require lawyers to provide legal assistance. In addition, they lay the foundation for future legislation on legal aid. A Center for Legal Assistance under the Ministry of Justice was formally established in Beijing on May 26, 1997.
At present, China has formed a four-tier legal aid structure:
1.At the national level, a Center for Legal Assistance has been created under the Ministry of Justice to supervise and coordinate legal assistance across the country.
This center, created on May 26, 1997, is responsible for supervising legal assistance, drafting regulations and rules, mapping out medium- to long-term plans and annual plans, coordinate legal assistance work nationwide, and conducting exchanges with foreign legal-aid groups and individuals.
On the same day, the China Legal Aid Foundation was created to raise, manage and use the funds, publicize the legal aid system, and promote judicial justice. Funding comes from donations and sponsorships given by domestic organizations, enterprises and individuals; interest; proceeds from bond and stock trading.
2.Legal-aid centers have also been established in provinces (autonomous regions) to supervise and coordinate legal-aid work in their respective jurisdiction.
3.The next tier is prefectures and cities where the legal-aid centers perform a dual duty: administer and implement legal-aid programs in their jurisdiction.
4.Finally, where conditions permit, legal-aid centers are also set up in counties and districts; where conditions do not permit, the Judicial Bureau of the counties and districts should be responsible for legal aid.
Applicants for legal aid should meet two conditions: that have sufficient reason to prove they need legal assistance to safeguard their lawful rights and interests; and that they indeed cannot afford to pay, in part or full, the legal fees.
Legal aid is rendered by three groups of people: lawyers, public notaries and grassroots legal professionals. Lawyers provide procedural aid (including defense for criminal cases, representation for criminal cases, and representation for civil procedures) and non-procedural aid; public notaries provide notarization assistance; grassroots legal professionals provide legal counseling, document drafting and general non-procedural aid.
MARRIAGE ,FAMILY, AND KINSHIP
Marriage. According to custom, marriages are arranged by the couple's parents. While this system is less rigid than it once was, it is still common for young people to use matchmakers. People take a pragmatic approach to marriage, and even those who chose their own spouses often take practical considerations as much as romantic ones into account.
Weddings are usually large, expensive affairs paid for by the groom's family. For those who can afford it, Western-style weddings are popular, with the bride in a white gown and the groom in a suit and tie.
The legal age for marriage is twenty for women and twenty-two for men. A marriage law enacted by the communists in 1949 gave women the right to choose their husbands and file for divorce. While it is difficult to obtain a divorce, rates are rising.
Domestic Unit. It is common for several generations to live together under one roof. After marriage, a woman traditionally leaves her parents' home and becomes part of her husband's family. The husband's mother runs the household and sometimes treats a new daughter-in-law harshly. Although today practical reasons compel most children to leave the parents' home, the oldest son often stays, as it is his duty to care for his aging parents. Even today, many young adults continue to live with their parents after marriage, partly because of a housing shortage in the cities.
Inheritance. The estate generally passes to the oldest son, although, especially in the case of wealthy and powerful men, most of their personal possession traditionally were buried with them. The remaining property went to the oldest son. Since the communists came to power in 1949, women have been able to inherit property.
Kin Groups. Extended family is extremely important, and the wealthy and well educated often hire genealogists to research their family trees. Family members, even distant relations, are valued above outsiders. The passing on of the family name is of great importance. If the oldest son in a family has no son of his own, he often is expected to adopt the son of his next youngest brother. If no sons are born in the clan, a sister's son may be adopted to carry on the name.
SOCIALIZATION
Infant Care. Traditionally, male babies were valued much more highly than female offspring. Girls were looked at as a liability and in times of economic hardship often were sold into lives of servitude or prostitution. While this has changed somewhat, those attitudes have again become prevalent with the government's one-child policy. When families are allowed to have only one child, they want to ensure that it is a boy; for this reason, rates of female infanticide and abandonment have risen. While babies are highly valued, it is considered bad luck to praise them aloud. It is common to offer backward compliments, remarking on a child's ugliness.
A baby usually is not washed for the first three days after birth. On the third day, he or she is bathed, and friends and relatives come to view the new addition to the family. When a male child turns one month old, the parents throw a First Moon party. The boy's head is shaved, and the hair is wrapped in a red cloth, which, after a hundred days, is thrown in the river. This is thought to protect the child.
Women usually are granted maternity leave between two months and one year, but rural women tend to go back to work earlier.
Child Rearing and Education. From a very young age, children are assigned responsibilities in both the family and the community. In the countryside, this means farm chores; in the city, it consists of housework or even sweeping the street. Schoolchildren are responsible for keeping the classroom clean and orderly.
Under communism, when women were encouraged to take jobs outside the home, child care facilities became prevalent. Grandparents also play a significant role in raising children, especially when the mother works outside the home.
Education is mandatory for nine years. Ninety-six percent of children attend kindergarten and elementary school, and about two-thirds continue on to secondary school, which lasts for three years. In high school, students pursue either technical training or a general education. Those who receive a general education can take the extremely difficult qualifying exams to enter a university. The educational system stresses obedience and rote learning over creativity. Both traditional Confucians and the Communist Party view education as a method for inculcating values in the young. Under Mao, the educational system suffered from propaganda and the devaluation of intellectual pursuits. Because of the size of the population, classrooms and teachers are in short supply.
The country has made great progress in increasing the literacy of the general population. When the communists came to power, only 15 percent of the population could read and write. Today, thanks to mandatory schooling for children and adult education programs, the rate is over 75 percent.
Higher Education. Higher education is not accessible to many. Admission to the universities is extremely competitive; only 2 percent of the population attends college. In addition to the rigorous entrance examination, students are required to demonstrate their loyalty to the Communist Party. During the summers, university students perform manual labor. The curriculum emphasizes science
ETIQUETTE
Deference and obedience to elders is considered extremely important. There is a hierarchy that places older people above younger and men above women; this is reflected in social interaction.
Chinese people are nonconfrontational. Saving face is of primary importance; appearing to be in the right or attempting to please someone is more important than honesty. It is considered rude to refuse a request even if one is unable to fulfill it. The fear of losing face is a concern that governs social interactions both large and insignificant; failure to perform a duty brings shame not just on the individual, but on the family and community as well. Individuality is often subsumed in the group identity. There is little privacy in the home or family, and housing shortages and cramped living quarters often exaggerate this situation.
People touch often, and same-sex hand holding is common. However, physical contact between men and women in public is limited. Smiling is not necessarily a sign of happiness; it can be a display of worry or embarrassment.
Visiting is an important part of social life. Guests often drop in unannounced and are invited to join the family for a meal. It is customary to bring a small gift when visiting.
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