Development of Chinas legal system and its difficulties and challenges - Essay Example

?Development of China’s legal system and its difficulties and challenges China has one of the oldest legal s in the world and has created its legal system using a combination of traditional Chinese and Western approaches during the 20th and 21st century. Confucian philosophy has been the base of China’s legal system. This philosophy uses moral education for social control as well as placing a legalist emphasis on codified law and criminal sanctions.After the Revolution of 1912, the country placed a large western-style legal code into the civil law tradition of the country. This legal code was mainly influenced by Germany’s legal system. The Republic of China was established in 1949 and was influenced largely by the Soviet system of socialist law. However, the traditions of the Chinese law and history have been retained by the new law of the country. China’s legal system is now undergoing some reformatory changes. These changes are occurring because of the fact that in order to strengthen the rule of law it is foremost necessary to place emphasis on a large number of elements, both from inside and outside of the country. Also the structure of the domestic law of the country is facing several transformations in the face of growing international trade and globalization. The legal systemis undergoing the most radical changes since their inclusion within the World Trade Organization (WTO). The country has largely been dependent on ideological reasoning and facts. But recently policy makers have suggested that in order to cope with international standards of respectable community, the country must follow specified globally accepted norms and regulations, irrespective of the fact that these norms and regulations are generated by the United Nations Human Rights Conservation or by the WTO (Bruun & Jacobsen, 2000, p. 251). Accordingly the country’s law and legal system have had to be changed and modified. The Republic of China is now initiating these changes or modifications with the most radical occurring in the areas of economic reform and changes in the nature of the administration process. This paper will attempt to evaluate all of these developments and will mark the difficulties or the challenges that china has been facing as a direct result (Alexandroff, Ostry and Rafael Gomez, 2003, p. 154). Philosophy: The Asian legal system appears to be different in many respects from the legal systems of therest of the world. Major reasons for this include spiritual variations and differences in intellectual thought. Religion plays little part in Chinese law-making but perhaps the most influential form of thought is Confucianism (Glenn 2007, pp. 318-319). The core of Confucianism is Humanism and is based on various levels of honesty. According to Confucian thought, with the use of the logic of humanity one can examine the world in the simplest possible manner. An ethical philosophy that is to be practiced by all the members of this society is the primary foundation and function of this thought. For almost a thousand years the legal system of China was dominated by Confucianism. The principles of Confucian ideology were the main driving force behind the evolution of the ancient legal system. Not only that, it also helped in developing the legalism, traditions, and moral aspects of life for the ancient Chinese people. This ideology mainly focused on astrict governmental hierarchy. Along with this the ideology marked its view regarding the fact that people need to internalize all the granted rules and norms and just take appropriate or necessary actions. According to this view, it has been argued that the law should be preserved only for those who try to do something out of pure self-interest at the expense of the interests of society as a whole. Hence, the law of the country has been modified to include harsh punishments with the aim of achievingand maintaining an appropriate social order withmaximum social welfare. In this regard China’s legal systemdiffers significantly from that of the West (Glenn, 2007, pp.318-320). One of the most striking differences in the philosophy of International Relations (IR) between the West and China regard state sovereignty. For example, whilst the European Union (EU) is informed by Enlightenment ideals that seem to allow for imperialism, China’s values can be summed up by her Five Moral Principles, which amount to the following: mutual respect for sovereignty and territory; non-aggression; non-interference; equality and mutual benefit; and peaceful co-existence. Anything else would be perceived semiotically as unilateralist and exploitative. In short, China wants to increase wealth but without taking on the values of the West. This view is not confined to China but is similar to Russia’s stance since Putin was elected in 2000 (Golden 2006, pp. 265-266). These differences in IR theory are extremely important as they inform the extent to which China is able or willing to allow itself, and hence any legal reform, to be influenced by outside forces including international organisations such as the United Nations (UN) and the WTO (Glenn, 2007, pp. 321-325). History of China’s legal system since 1947: The process of making rules, norms, and regulations of law following the victory of the Maoist party in 1949 has become the most important part of Chinese history. After the victory the new legal structure of the country did not totally neglect the existing legal forms, but it discarded most of it. There are several processes which have occurred since 1947 which need to be considered when analyzing the formation of the new legal system of the country (Lubman, 2007, p. 71). The Criminal Process: The formal criminal process was the main focus of the courts’ principle activities but since the Cultural Revolution this has changed. The criminal process is the only area of the Chinese legal system that exhibits a larger connection between current institutions and practices. After the beginning of the era of Maoism, courts were perceived to be different from other hierarchically structuredorganisations of the government. This process continued until the Cultural Revolution began. Before the Cultural Revolution, bureaucracy was the dominant part of the Chinese legal system which immensely affected china’s legal institutions and politics. Hence, it is foremost necessary to understand the sanctioning process in the country before discussing the period after the Cultural Revolution. The basic reason for this is the durability of the criminal process (Lubman, 1999, p. 71). Sanctioning Process (1949 to 1965): During this time the process of tracing the “Form and Function” of the origin of the communist leadership style in China put more emphasis on organisational techniques that focused on charismatic leadership. This style of leadership ruined the difference between the state and non-state organisations, activities, and policy decisions. During this time laws and regulations in the country were not flexible enough to easily respond to policy changes. However, the beginning of Maoism saw mass mainstreaming of the legal system. The Party felt the need for procedural orderliness within the legal system and also initiated methods to review the exercise of discretion of the cadres that would maintain proper application of governmental policies enacted, even in the absence of proper legal codes. During this time conflict emerged in the regularity and the mass line regarding the differentiated emphasis that was put in (Lubman, 1999, p. 72). Restructuring the society and campaigns (1949-1953): In the first phase of ruling the Communist party of China adopted revolutionary techniques in order to restructure Chinese society. Many violent mass revolutions and movements were initiated during this time to destroy the power of the rural landowners and to curve the control of the urban bourgeoisie. These movements completely eliminated “counter-revolutionaries”. During this time, the Party completely ignored legality. With the abolition of the Nationalist codes, the authority adopted some punishment strategies for the counter-revolutionary activities. The courts began to be used as a playing-toy of the ruling party. Between 1952 and 1953, all the judges and higher authorities of the courts and legal system were replaced by party cadres. In this way law itself was made the target (Shakya, 1999, pp. 55-61). Different political campaigns were used during this time by the rulers to enforce law and order in the country. These campaigns were initiated to stress the fact that the role of the law is the instrument of class welfare. These campaigns also criticized the roles of judges for putting value on welfare of perceived enemies of the state, and hence of the people. All the rules and principles of law and criminal legislation processes were criticized during this time. During this time, invidious “Class” distinctions were used. “Landlords”, “rich peasants”, “counter-revolutionaries”, and ‘bad elements” were put into the same group within the legal system of the country and they were put under the method of indexation while operating through the sanctioning scheme that was developed by the Communist Party. This continued until the legal reform took place. The most important legal property of this time was the dominance of the party members among police and other legal authorities. They started making unusual punishments for the enemies of the state and people. For instance, they believed that giving punishments in front of the people of the state acted as an educational concept that would drive their enemies to not pursue their activities in the future. All governmental units of the nation were charged by the newly constructed legal system for “security” reasons and several types of sanctions and punishments were applied upon them. They were reluctant to make changes to the ongoing legal structure, although several regulations were proposed during this time. Hence, the conflict between the mass line and regularization became more prominent (Lubman, 1999, pp. 73-75). Tentative regularization (1953-1957): During this period the Party tried to use legality as a form of discipline and for this both law and politics were used. In this time the Communist Party of China tried to follow the five-year-plan of the Soviet Union for industrialization and the legal and political aspects of the nation were changed or modified accordingly. The Party followed Stalinist strategies and initiated a process of “economic construction”. At this point, the party cadres were warned not to take the law into their own hands asthey felt that the process of law had the power to control the revolution. The cadres were trained to act in such a way that their acts would fulfill the short-term goals of the policies initiated by the government. These acts included fulfilling quotasof grains from the peasants and in reducing the frequency of industrial accidents. During 1954, a formal Constitution was adopted. Organisational legislation was propagated by the legal authorities of the state and also rules and regulations regarding arrest and detention were disseminated. Hence, new laws and rules were initiated. In 1957, all these experiments with the criminal justice system came to an end and tensions evolved regarding the attitude of the nation towards the formal legal institutions. The continued politicisation of the sanctioning processes made the concept of legal structure more controversial within the country. Courts, police authorities, and political campaigns were used collectively with rapid force to fulfill the political aspects and greater societal goals of the policies. These rules started to be applied to all sections of society, but largely the poor and peasant classes bore the brunt of these initiatives. During this period the Soviet-style bar was increasingly used and the use of defence lawyers was almost completely wiped out. This was due to the perception of the cadres or judges that these defence lawyers were enemies of the state. This was despite the fact that all the while the cadres themselves were also being judged or evaluated. Some low-level cadres lacked proper education and training regarding their commitment towards legal system. From 1956 legal education started to be considered as the foremost condition to be satisfied before applying the Soviet style of Socialism. The police continued to apply all of the unethical and unjustifiable sanction rules on the violators of “public order”, during the first few years of the Communist regime. And during the period of 1955 to 1957, this immense power of the police force started to increase in scale as they forced peasants to work in certain specified parts of the country. These misbehaviors of the police and courts meant that all the new law graduates had to work as clerks, teachers and asadministrative cadres in the ministry, but not as judges of the court (Trevaskes, 2007, p. 178). In the face of the application of the new liberalisation policy and also of the establishment of new practices of law and order consistent with those policies a new form of debate was created. The policy of industrialisation andrevolution legality and also theinstitutionalisation of the criminal process started to gain more importance during the period till mid-1957. At the same time there was a rise in freedom of speech and expression which allowed for criticisms of the policies and opinions of the Party. Hence, after all these freedoms were allowed, the new, relaxed political atmosphere of the nation began to be attacked by several critics. In September 1956, the Eighth CCP (Chinese Communist Party) started to stress more importance on legality. But in spite of the criticisms made by different sections of society, the Party maintained its supreme command over the legal system of the country in the first years of their regime (Lubman, 1999, pp. 75-79). Regularization discarded (1957-1966): The regularisation of the legal system of China could not survive for long because of the various criticisms and protests which emanated from all sections of society. By June 1957, criticisms from the society at large became so intense that the Party started to realize the emergence of an anti-party movement. Again these anti-party movements and protests started to create new forms of differentiation of police and other legal authorities throughout the country. The ruling party started to take drastic steps against “rightism”. The defense lawyers had lost their “standpoint” and hence they were criticized. A stronger coordinationbetween the police, courtsand other legal authorities was demanded. The Chinese government applied all aspects of legal regulations and statutes to effectively implement their policies, but they failed to adopt a clear view regarding the adoption of the western style of rules and legal regulations (Chow, 2009, pp. 212-219). The Maoist government during this time has used policies in order to achieve success and they ignored the proper suggestions of the norms and the practice of Chinese law. During this period the government used sanctioning procedures in such a manner that it did not shown proper concern for rational gradation. Short-term sentencing, warnings, fines etc. were converted into long-term detentions, and other formal criminal processes. Hence, a growing grievance among all sections of society started to evolve to such an extent that it then converted the general protests into the serious Cultural Revolution (Lubman, 1999, pp. 80-85). The Cultural Revolution: 1966 saw a return of Maoism the Cultural Revolution crippled the country’s political and economic status. This was the beginning of the socialistic pattern of the society and economy. For this goal to be achieved,the Maoists ignored the capitalistic tradition and culture of the country. Various serious protests and mass rallies were conducted by the people of China against the cadres of the CCP. This revolution marked a black period for the politics and legal structure of the country. Many people were killed and tortured during this period of violent uprising and the political instability of the country made it very difficult to recover from its existing differentiated legal system and unstructured norms (Blazey & Chen, 2008, pp. 252-256). The period since the Cultural Revolution: From 1970 to 1979, the main focus of the legal system wasthe achievement of economic development within the country. Hence, legal rules and norms were changed accordingly; but the supreme power of the state remained unchanged. From 1980 to 1987, important changes were made by the legal system of the country and converted the “rule of men” into the “rule of law”. All the institutes and universities that were closed during the Cultural Revolution were opened again to educate the people of China in order to train more lawyers and legal personnel. In 1997, the criminal law of the country changed considerably. All the “counter-revolutionary” acts were converted into anew concept named as “crimes of endangering national security.”But this change was made only on paper. During recent timesChinese laws have beeninfluenced largely by norms and regulations of foreign law. For instance, the banking and security lawsof the country have been designed according to the laws of the United States; and industrial property laws were heavily influenced by Germany. Again in the modern era the country has adopted several new norms and legal structures to augment the market-based reform in the country, especially in the field of commercial law (Hix, 2005, pp. 15-17). This has fulfilled all of the economic developmental requirements of the country. The legal system of the country has also been modernised with the advent of new policies regarding legal practices of globally acclaimed law firms and companies (Lin, 2003, pp. 261-278). Accession to the WTO: China’s accession to the World Trade Organization (WTO) began in November 2001. This was the greatest event in the economic reform of the country (Chu, 2007, pp. 167-168). This accession has made a significant impact on the trading systems of China and of the rest of the world. Institutional reform within each and every sector of society has made this inclusion possible. Accordingly all the legal structures and amendments have had to be changed which led to the economic reform that has taken place with the inclusion of the country into the WTO (Palmeter, 2003, pp. 229-231). Like all other WTO members, China adopted judicial independence following accession. After this adoption the country started to fall under the foundation containing all therules and mechanisms of the WTO. This independence allowed China to meet all the requirements of the WTO including uniformly enforced law, impartial judicial review, trade policies’ review and the making of a transparent adjudication process etc. The impact of this accession was not limited only to the economic sectors of the country like trade and investment (Corne, 1997, p. 21). It also put huge pressure on the government to increase transparency and uniformity in the application of the law in non-foreign-trade related sectors of the economy. This became necessary in order to avoid allegations of applying double standards – one for the foreign traders and another for the local Chinese people. The Chinese legal system hasfaced several criticisms regarding the fact that Chinese law behaves differently towards foreigners compared to local citizens. Similar types of allegations have been made by Chinese businessmen regarding economic policies (Liu, 2001, pp. 10-20). There were several conditions imposed on China regarding its inclusion as a member in the WTO. After becoming the member of the WTO, China was needed to implement economic reforms in favor of globalisation and liberalisation and to transform its economy that will be consistent with the WTO requirements. The Chinese products were supposed to meet the conditions that, the products need to have moderate tariffs (10% or less), the products need to be free from the “core grey measures”, there would be no state-owned monopoly. Conditions were also imposed on the exports of amounts of agricultural products, volume of industrial subsidies, trade barriers, trading rights and services’ trades. Anti-dumping condition was also an important condition. This was initiated by the “Transitional Product-specific Safeguard” (TPS) provision. The Doha Round put stricter conditions on china regarding TPS provisions. During this time the Chinese government has signed in the General Agreement for Tariff and Trade (GATT). New International Competition Rules were also imposed on China. China also undertook the Trade Policy Review (TPR) under the Trade Policy Review Mechanism (TPRM) of the WTO. In 2006, China accepted the Sino-US trade policy under WTO’s supervision. China also signed in the Dispute Settlement Understanding (DSU) of the WTO that helped the country to define the way in which it has recognised into the WTO systems (Palmeter, 2003, pp. 240-251). Regional trade agreements: The creation of the Association of South East Asian Nations (ASEAN) in 1968 marked another significant change in the legal, political, and economic structure of the country. This came about due to the progressof region-to-region contact with the European Union (EU). In the first phase, between 1967 and 1980, the machinery for consistent institutional contacts was set up. In the second phase, between 1980 and 1994, all the economic and political contacts were broadened. In March 1980, with the signing of an EC–ASEAN Co-operation, all the informal contacts of the first phase were formalised. All these were done to expand the multilateral framework of cooperation equally. This agreement was centered on two dimensions. The first relates to the making of a broad framework to cover commercial and economic cooperation, technical assistance, and institutionalised meetings. This was developed as a means of regulating the emerging relations of the EC ASEAN members regarding trade and businesses (Godement, 2008, pp. 65-71). What made this possible was that ASEAN acted as the major supplier of primary products to the EC and hence this gave the opportunity to European companies to meet the growing demand for the primary products from more than 250 million people living there. The second fact is related to the Cold War environment of that time point. At the political level, the agreement made the representation of the grouping of the anti-communist friendly states. This was entirely based on the political interests of Europe that related at the right time with the growing communist threat of the Indo-China relationship. Although the agreement was made mainly to augment the path of economic development, the need for government intervention became the centre of the argument. This was achieved largely by the political co-operation between European countries and ASEAN members. But from the perspective of the European countries, ASEAN did not do well in achieving an effectivepolicy. As a result of this finding, at the end of 1994 more emphasis was given to the internal reform of the country with the advent of the negotiation of Treaty by the European Union for the enlargement of the Union. During this time the European Commission became confused about how to manage its relationship with ASEAN (Alexandroff, Ostry and Rafael Gomez, 2003, p. 154). This emerged due to the preferences of ASEAN members toward their own benefits and welfare improvements. Also the political differences between the member nations of EU and ASEAN were largely responsible for the growing disharmony between them. Several newly emerging factors, such as human rights and environmental issues, as well as issues related to consumer protection etc. have had to be made (although EU members were reluctant to make those changes) in the EU–ASEAN relationships and agreements (Fox & Godement, 2009, pp. 10-21). The Asia-Europe Meeting (ASEM) was incepted in 1996. This was created to broadenrelations between Asian and European countries, in the fields of political, economic and socio-cultural spheres (Golden, 2006, p. 71). The multipolar setting was maintained by the application of a concept called inter-regionalism (Reiterer, 2009, pp. 46-52). During this time international dialogues, co-operation, and agreements were favored compared to bilateral agreements and co-operation. ASEM focused mainly on the achievements of these policies and requirements. Although the ASEM process was cyclical, at several times it served to reconfirm the interests of the European Union. To act as the major re-emerging global power of political, social, and economic aspects, China made all the institutional and instrumental changes required to fulfill the conditions stipulated by the ASEM process. ASEM has contributed largely to the development of the legal structure of China and has also brought about political and economic changes to its internal system that have helped the country to become one of the economic and political superpowers of the modern era. This political and legal stability is the most prevalent outcome for China in being involved with both ASEAN and ASEM (Forster, 2010, pp. 788-800). The United Nations and China: The United Nations Security Council has incepted the “power of veto” thatprevents China, one of the five permanent members of this council, from adopting “substantive” draft Council resolution without regarding the international supports for the concerned draft. After China was included into the UN in 1971, it used its first veto on 25th August, 1972 regarding the admission of Bangladesh to the UN. As of 2008, the People’s Republic of China has used its veto six times. Most observers have argued that China has used those vetoes for its own interests (Reiterer, 2009, pp. 35-43). Conclusion: It is evident from various facts that the political, legal, economic and socio-cultural aspects of China have gone through many changes for many years. Different dynasties and political parties have ruled the country with different types of goals and policies. These goals have been realised at the cost of the stricter forms of legal norms and regulations. Some of those norms and rules have been abandoned by the people of China, but some of them have been protested by the people of China in order to make sure that those norms or regulations could not create any harmful effects to them. These aspects have made the new changes and new evolutions of legal norms and regulations. But the most striking feature of these norms is, these are developed to accomplish definite economic and socio-cultural aspects, rather trying to fit these aspects in the forms of regulations and norms. Hence, it is very difficult to compare those diversified legal systems in terms of their effectiveness or activeness. Accordingly, several developments have also made in several times. Some of those developments were criticized and some of them were praised by rest of the world. Most of those developments have faced several challenges in terms of legal aspects. The forceful behaviors of the Communist party were one of those aspects. Inspite of all those facts the growing nature of the economy of the country has made it possible to completely ignore all those criticisms (Hutchings, 2003, p. 113). The self-centered nature of the Chinese law has been changed into a better and globalised perspective after its inclusion with international organisations, such as UN, WTO etc. Accordingly the need for several new norms has been felt by the political parties. Also in light of the need for globalization and liberalization, the country is still taking necessary changes for the betterment of the economic, legal, political, and behavioral aspects within the system. References: 1. Forster, A. 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