A deeper dive into the Chinese legal system & sources of law

chinasystemoflaw

China is a statutory law country and Chinese law has three levels:

Level 1 – law

The legislature power is exercised by the National People’s Congress of China and its standing body, the Standing Committee of the National People’s Congress.

The law includes the Constitution and laws relating to the following matters:

(1) National sovereignty;

(2) The origin, composition and authority of the legislative organs (people’s congresses), administrative organs (governments), courts and procuratorates at all levels;

(3) The system of regional ethnic autonomy, the system of special administrative regions, and the system of self-government at the grassroots level;

(4) Crimes and penalties;

(5) Deprivation of civil political rights, compulsory measures and penaltiesfor restricting personal freedom;

(6) Collection of non-intrinsic property;

(7) Basic civil system;

(8) Basic economic systems and basic systems of finance, taxation, customs, finance and foreign trade;

(9) Litigation and arbitration systems;

(10) Other matters of law must be enacted by the National People’s Congress and its Standing Committee.

In China’s national laws, the promulgation of basic laws such as the Constitution and criminal, civil, and state institutions is exercised by the National People’s Congress; laws other than the Constitution and basic laws are enacted by the Standing Committee of the National People’s Congress.

Level 2 – administrative regulation.

Administrative regulations are normative documents issued by the Chinese central government, the State Council, in accordance with the Constitution and laws. It includes:

(1) matters that need to be refined in order to enforce the law;

(2) Matters involved in the exercise of administrative powers by the State Council;

(3) The National People’s Congress and its Standing Committee authorize the State Council to promulgate administrative regulations.

Level 3 – local decrees; autonomous regulations and separate regulations; administrative regulations; local government regulations. 

Local decrees

Local decrees are issued by local people’s congresses at the varies levels, including the province leve(provinces, autonomous regions, and municipalities directly under the Central Government) and their standing committees and the people’s congresses of major cities (including provincial capitals, special economic zones, and municipalities with districts) and their standing committees. The specific scope includes:

(1) Matters that need to be specified in accordance with the actual conditions of the administrative region in order to enforce laws and administrative regulations;

(2) Matters pertaining to local affairs.

Autonomous regulations and separate regulations

The autonomous regulations and separate regulations shall be formulated by the people’s congresses of the ethnic minority autonomous areas and shall be effective after being approved by the standing committee of the people’s congress at the next higher level.

The autonomous regulations and separate regulations may make changes to the provisions of laws and administrative regulations in accordance with the characteristics of the local ethnic groups.

Administrative regulations

Administrative regulations are normative documents formulated by various departments of the State Council of China within the scope of their authority.

Local regulations

Local regulations are administrative norms formulated by the provincial (including provinces, autonomous regions, and municipalities) governments of China and larger cities (including provincial capitals, special economic zones, and municipalities approved by the State Council).

At the above three levels, the legal effect of the upper level is higher than the effectiveness of the next level of law; the law of the next level cannot be in conflict with the law of the previous level.

We cannot ignore judicial interpretations issued regularly by the Supreme People’s Court of China.  Judicial interpretation is not a source of law. According to the constitution of China, the right of law interpretation belongs to the standing committee of People’s Congress, not the Supreme People’s Court. The Supreme People’s Court does not have the right to review the laws promulgated by the legislature. In this context, the Supreme People’s Court’s interpretation of law is not the source of law in China. But in practice, lower people’s court judges attempt to follow the interpretation, which gives the Supreme People’s Court interpretation extreme persuasive authority.

 

 

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