sign in sign up
<<
Home , Harmonious Society, Other (philosophy), Socialist law, Xi Jinping, Xi Jinping Thought

NO. 28 APRIL 2021 Introduction

Xi Jinping Thought on the Rule of New Substance in the Conflict of Systems with Moritz Rudolf

In its first “Plan on Building the in China (2020–2025)”, the leadership in has set out its vision for a coherent and genuinely Chinese legal system. The focus here is on the term “socialist rule of law with Chinese characteristics”. It should “basically take shape” by 2035. Marxist-Leninist legal concepts remain fundamental. The aim is to use the law as a political instrument to make the more efficient and to reduce the arbitrariness of how the law is applied for the majority of the popu- lation, among things, with the help of advanced technology. In some areas, for example on procedural issues, Beijing continues to draw inspiration from the West in establishing its Chinese “rule of law”. However, the party-state leadership rejects an independent and the principle of as “erroneous west- ern thought”. Beijing is explicitly interested in propagating China’s conception of law and legal practice internationally, establishing new legal standards and enforcing its interests through the law. Berlin and Brussels should, therefore, pay special attention to the Chinese leadership’s concept of the law. In-depth on this topic will be imperative in order to grasp the strategic implications of China’s legal policy, to better understand the of their actions and respond appropriately.

At the 4th plenary session of the 13th administration has understood that law National People’s Congress (NPC), the term is an important lever in achieving greater “ Thought on the Rule of Law” international influence. This plan repre- appeared six times in the annual work sents the most concrete expression of Xi report by Zhanshu, Chairman of the NPC Jinping’s vision of how the law should be Standing Committee. The Chinese leader- interpreted and applied in China and in ship had been promoting the term “socialist the international context. law with Chinese characteristics” for several months. That the Central Committee of the of China (CPC) has now Defining the Terms adopted its own five-year plan to establish the rule of law in China illustrates the new The terms “socialist rule of law with quality of these efforts and how strategically Chinese characteristics” and “Xi Jinping embedded they have now become. The Xi Thought on the Rule of Law” are key to

understanding China’s current judicial personal rights, in China it is mostly about reforms. But they require explanation. regulating the private sector and Internet The Chinese leadership always adds companies, in particular. For the CPC, the “with Chinese characteristics” to point out issue of fundamental rights, such as the the special connection between the political right to informational -determination, fields and China’s circumstances, such as in is irrelevant. In addition, the party relies the formulation, “ with Chi- on advanced technology in the search for nese characteristics”. According to Article 1 , for example in digitalised pro- of the Chinese , “the defining ceedings and via Internet . feature of with Chinese charac- “ on the Rule of Law” teristics is the leadership of the CPC”. The is another term that the CPC is promoting term “ with Chinese character- in China’s on the rule of law. istics” ties in with this. The CPC’s leadership There are a number of these abstract “Xi- is propagated as the most fundamental deologies” such as “Xi Jinping Thought on guarantee of the rule of law in the People’s Diplomacy”. The most important of these is Republic of China (PRC). According to “Xi Jinping Thought on Socialism with Chi- Marxist legal , Beijing sees law pri- nese Characteristics for a New Era”, which marily as an instrument of the CPC. After was added to the Preamble of the PRC’s the communist , the law was sub- Constitution in 2018. This doctrine includes jected to “the People”, and only the CPC has 14 agenda items which outline the political the legitimacy to interpret their will. Con- direction of the Xi administration. In the sequently, it is not appropriate to translate five-year plan, “Xi Jinping Thought on the the Chinese term “F zhì” (法治), which was Rule of Law” is summarised as follows: officially introduced in 1997 by the then Strengthening the CPC’s centralised and ǎ President , as rule of law in unified leadership, “scientific ”, Western discourse. The CPC does not accept strict , fair , a law- the intrinsic value of the law. The transla- abiding population. tion “rule by law” is more appropriate. The suffix “with Chinese characteristics” under- lines Beijing’s intention to create its own Xi Jinping’s Judicial Reforms – Chinese legal system that also draws on More Power for the Party, Less traditional Chinese legal concepts. To what Everyday Arbitrariness extent this goes beyond mere is disputed. Nevertheless, the CPC’s behaviour The plan to establish the rule of law in derives on the one hand from China’s legal- China is the latest chapter in a series of istic tradition, which demands the strict judicial reforms launched by President Xi application of rules by a strong centralised in 2012. Xi’s predecessor created state. On the other hand, it is not only rule incentives for within the PRC by law that should apply. The population with his doctrine of the “harmonious soci- and party cadres are also expected to cul- ety”. In order to maintain social harmony, tivate moral and virtuous behaviour which legal disputes were widely resolved through resembles the teachings of . Xi face-saving . This risked encour- Jinping regularly invokes key aspects of aging the rise of informal justice. Bribery- when they serve the interests prone party cadres in the “Political and Legal of the CPC. Affairs Commissions” played a key role as A much more concrete aspect of the mediators in legal findings. As a result, cor- Chinese rule of law is the inclusion of ruption became rampant as many tried to advanced technology. For one thing, it is influence the mediation mechanism. comprehensively regulated by . While Xi’s policy was initially shaped by meas- in digitalisation is discussed pri- ures to consolidate his power, which were marily in terms of its general effects on focussed on a massive anti-corruption cam-

SWP Comment 28 April 2021

2 paign. Judicial reform promoted mecha- Security Commission was granted state nisms to strengthen the local judiciary over authority – the first time since the Cul- local party cadres, for example through tural Revolution that a party organisation the establishment of Circuit Courts of the has been allowed to do so. Numerous state Supreme People's Court and measures to and party organisations were merged professionalise . during structural reforms in 2018. In sen- In 2014, the 18th Central Committee of sitive areas (related to security policy), it the CPC formulated its vision of building a was the party that benefited most from “socialist rule of law with Chinese charac- these reforms, at the expense of the state. teristics” and “law-based governance”. This In the past few years, however, there made it clear that the aims of the judicial have been considerable efficiency gains in reform were to strengthen the CPC over the resolving non-sensitive legal disputes – state and to professionalise the running those faced by the majority of the Chinese of the state. In 2018, the constitution was population. They have primarily been amended significantly. Accordingly, the re- achieved with faster and more clearly vised Article 1 constitutionalised party lead- defined processes in civil and criminal pro- ership in China for the first time since the ceedings. For most Chinese people, this short-lived of 1975 and 1978. means less arbitrariness. There has also been a clear trend since Furthermore, the Chinese leadership is President Xi came to power: the state is not interested in adopting the West’s core more efficient, especially when it requirements for the rule of law. Instead, comes to applying the law, and everyday judicial reform is more about pragmatically arbitrariness is decreasing, especially at the adopting from the West what can be em- local level. But this has nothing to do with bedded in the Chinese context of one-party establishing the rule of law as it is under- rule. This applies above all to , stood in Western countries because the questions of and improving party remains above the state and controls processes. In the past, the President of the itself. The party decides what is part of the Supreme People’s Court pointed out that state legal system and what is “sensitive”. Western “aberrations”, such as the sepa- Sensitive matters are defined by the CPC ration of powers and an independent judi- and assessed outside the law and are there- ciary, were out of the question in the PRC. fore not under the control of the state judiciary. Since Xi took office, the CPC’s influence China’s First Five-Year Plan on over the state has increased. The area of Establishing the Rule of Law application of rules that previously only ap- (2020–2025) plied within the party is increasingly expanded to include matters that were for- The internal dimension merly assigned to the state. This applies in part to environmental protection, for exam- On 10 January 2021, the CPC Central Com- ple, or matters of national security. The mittee adopted China’s first five-year plan share of documents that the State Council on establishing the rule of law. This was and the CPC adopt jointly has also increased, preceded by a speech in November 2020 by such as a number relating to the Belt and President Xi during the first “central con- Road Initiative (BRI). These documents are ference on work related to overall law- generally treated as party rules, but are in- based governance”. In that speech he called creasingly cited as a legal basis in the legis- for a coordinated approach to promoting lative process. The CPC is also increasingly “socialist law with Chinese characteristics”. exerting its influence on the application of This plan underlines the Chinese leader- the law. In Security Law of ship’s understanding of the law as a politi- 2015, for example, the CPC’s National cal instrument. The document states that

SWP Comment 28 April 2021

3 rule through law is to help the state gain formalised in order to reduce arbitrariness strength and prosperity. It states that the in the PRC and secure the rule of the CPC. promotion of rule through law is necessary It is the first publicly available official docu- in order to ensure the resurgence of the ment laying down the principles, contents PRC in the long term and to realise the and procedures of a constitutional review so-called “” of once again by the NPC Standing Committee. This, how- becoming a world power. To this end, the ever, has nothing to do with the separation document contains the following guiding of powers, as the NPC formally controls principles: itself. Nevertheless, the constitution as it maintaining the centralised and unified stands has become increasingly important leadership of the CPC as the most funda- for state action. ∎ mental guarantee of the rule of law in In addition, all people’s congresses are to China, be given more power in the legislative pro- prioritising the interests of the people cess, for instance increasing the frequency in establishing the rule of law, with which their standing committees meet ∎ promoting law as an integral part of and by requiring them to consider legislation the CPC, the Chinese state and Chinese at every plenary session. More laws are to ∎ society; adhering to a combination of be passed and fewer administrative regula- rule of law and rule of virtue, tions enacted. This is important because taking account of national circumstances people’s congresses usually play a subordi- in establishing the rule of law. nate role in the Chinese legislative process. ∎ There is to be more legislation, especially The Chinese leadership also defined general on information technology, for example goals in the plan. By 2025, it aims to: by regulating the digital economy, Internet further develop the institutional frame- finance, artificial intelligence, big data, the work for the rule of law in China, “” and cloud computing. ∎ establish a more complete socialist legal Above all, there is to be greater protection system with Chinese characteristics (in of intellectual in China’s digital ∎ which the constitution plays a central space. In line with Xi Jinping’s vision to role), a more solid governance system build a “smart state under the rule of law” with clear administrative responsibilities and to promote the “digitalisation, net- defined by law and a more efficient judi- workisation and intelligentisation of the cial system, rule of law in China”, these technologies make progress on the formation of a are also to be used in applying the law, for “rule of law society” and example in virtual court proceedings or ∎ improve the application of internal party through the social credit system. . Beijing also aims to use the plan to har- ∎ monise laws at the central and local levels. By 2035, it aims to: It will lay down clear competences for state have basically completed a state, a gov- action. It is also the first public document ernment and a society under the rule of calling for the enactment of a unified Chi- ∎ law, nese Administrative Procedure Law. The have basically formed a socialist rule of law enforcement system is also to be made law system with Chinese characteristics, more efficient, mainly by clearly defining ∎ fully guarantee the people’s right to the different competencies among the law equal participation and equal develop- enforcement authorities. Also on the agenda ∎ ment and is the improvement of criminal procedural modernise the national governance sys- law, for example with regard to the admis- tem and governance capabilities. sion of . There are to be standard- ∎ The five-year plan sets out how the ised, legally codified control mechanisms actions of the state and the CPC are to be and rules of jurisdiction for state actors

SWP Comment 28 April 2021

4 (administrative and judicial bodies, super- on law enforcement and bilateral legal visory and law enforcement authorities, assistance between the mainland, Hong courts, public ’s office) at various Kong, and . This chapter also levels (provinces, cities, counties and town- sets out the goal of strengthening the regu- ships). The document also promises to latory framework of the People’s Liberation strengthen the rights of the parties to the Army (PLA) in order to cement the absolute proceedings, for instance through a system rule of the CPC over the PLA. for recording accountability of interroga- Section 25 of the plan reveals the inter- tion cases by judicial personnel. national dimensions of China’s endeavours, It also calls for the judiciary to be pro- which are: fessionalised. A new generation of “revo- expanding Chinese lutionary regularised, specialised, and expertise, ∎ professional” legal teams is to be formed, the conception of an international law who are not only loyal to the party, the theory on “socialist rule of law with ∎ state, the people and the law, but also act Chinese characteristics”, virtuously. Supporting the CPC is a pre- active participation in the formulation requisite for working in the judiciary. of international rules in order to estab- ∎ The entire Chinese population is to be lish a “fair” and “reasonable” inter- taught the of “socialist rule of law national legal system, with Chinese characteristics” and of “Xi promoting the Chinese concept of the Jinping Thought on the Rule of Law”. With- "rule of law" internationally, ∎ in the CPC, these issues are to play a key establishing a mechanism to identify role in the party schools. But they are also laws from other states with extraterri- ∎ to become an integral part of the curricula torial effect, at schools and universities. more protection for the rights of Chinese Beijing is also planning to strengthen the nationals and legal entities abroad, ∎ party’s internal regulations and establish an promoting international legal coopera- internal party legal system. China’s rulers are tion within the framework of the BRI, for ∎ aiming for national laws and internal party example by creating international com- regulations to be complementary, mutually mercial courts, reinforcing and mutually guaranteed. establishing new mechanisms for inter- national arbitration, ∎ International dimension cooperation between arbitration tribu- nals from China and from BRI countries, ∎ One chapter of the plan is devoted to the strengthening bilateral and multilateral outside world. It concerns the “preservation dialogue on the rule of law and exchange ∎ of national sovereignty, security and devel- programmes, especially within the frame- opmental interests” through the law. It con- work of the BRI, tains explanations of the principle of “one promoting China’s institutional judicial country, two systems”. A “high degree of assistance system and mechanism and ∎ ” is to be guaranteed to Hong expanding international cooperation of Kong and Macau. Interventions by “foreign judicial assistance in the field of extra- forces” should be opposed and prevented. dition and repatriation of criminal sus- Communications and legal exchanges in pects and transfer of sentenced persons, and legal circles are to be international law enforcement cooperat- supported with Taiwan. With the help of ing in the fight against violent terrorism, ∎ the law, steps are to be taken towards - ethnic separatism, religious extremism, ful reunification and against aspirations of drug trafficking and transnational , independence. This is fuelling speculation strengthening international cooperation about a Taiwan-specific “anti-secession in the fight against corruption and in ∎ law”. Beijing also wants more cooperation the detection and return of stolen goods.

SWP Comment 28 April 2021

5 The final chapter points to the central influence. Beijing is promoting the use of role of the CPC in establishing a “rule of digital technology as an alternative to the law with Chinese characteristics”. Party separation of powers, since they are alleg- leadership is to be further anchored in law, edly objective and not corruptible. The and a theory about the rule of law with CPC’s view is that, in an authoritarian con- Chinese characteristics to be developed. text, digital tools can produce the same This is to contain aspects of the “excellent effect as a functioning separation of pow- traditional Chinese legal culture” without ers, without questioning one-party rule. further details being specified. All depart- The political will to further develop the use ments of the CPC in all provinces are in- of advanced technology in law should not structed to fully implement the spirit and be underestimated. Despite there still being requirements of the plan and create imple- significant obstacles to implementation, mentation plans that take into account some approaches to an objective, albeit dys- local circumstances. topian “Chinese” way of determining the law already exist. These include the social credit system. It allows people’s behaviour Assessment to be converted into a points system. Minus points awarded for sanctioned behaviour The document summarises Beijing’s stra- may have direct legal consequences, such tegic efforts to establish its own Chinese as fines or restrictions. version of the “rule of law” as a coherent Viewed objectively, the Chinese approach future- model. Primarily, it is about to integrating digital technology into the making the state more efficient and shoring judicial process is also avant-garde. During up the absolute dominance of the CPC. the COVID-19 pandemic, many Chinese These aspirations could outlast Xi Jinping’s courts went online overnight. From a func- presidency and become a legacy of his tional point of view, it certainly makes policies. One example would be establish- sense to learn lessons from the Chinese ing a formalised mechanism for deter- judiciary’s affinity for technology – where mining leadership succession. the knowledge gained can be integrated Where it serves one-party rule, the docu- into the democratic system. The CPC is try- ment draws on Western aspects of the rule ing to provide authoritarian answers to of law, especially when it comes to regu- questions arising from globalisation and lating civil law matters, jurisdiction and to embed these endeavours in its concept procedural matters. Nevertheless, the five- of the rule of law. It remains to be seen, year plan bears no resemblance to the whether China’s vision will be attractive to Western understanding of the rule of law. third countries. At least when it comes to Its objective is for the law to better control increasing the efficiency of state action and state actions, but without limiting the reducing arbitrariness through technology, power of the party in any way. Instead, the it seems plausible. China is trying to achieve law is to become a more efficient instru- precisely this goal with its digital . ment of rule for the party. One can assume that Chinese negotiators, China could create a mechanism that diplomats and entrepreneurs will soon be reduces arbitrariness for the majority of its making arguments that include the phrase population and creates a degree of legal “Chinese rule of law”. In future, Beijing’s certainty with the aid of advanced technol- use of the law as an instrument to enforce ogy to determine, apply and enforce the political interests will become increasingly law. Millions of Chinese are already using efficient as become better trained apps (e.g. WeChat or the China Mobile in its use. Micro Court) to file or submit For political decision-makers in motions for evidence, without corrupt party and Europe, it is first important to take cadres at the local level being able to exert seriously the fact that the Chinese leader-

SWP Comment 28 April 2021

6 ship is developing its own, fundamentally the Chinese leadership’s understanding of different “rule-of-law” concept and pro- the law as a tool. Otherwise, a contractual moting it internationally. More translation agreement such as the comprehensive agree- and contextualisation of the terms being ment on investment between the EU and used by Beijing is essential. Without a his- China (CAI) from December 2020 is worth torical and political classification of the little more than the paper it’s written on. phrases translated strategically into English In such cases, the actual negotiations only by the CPC, such as “rule of law”, it is im- start after the has been signed. possible to adequately understand Chinese Chinese core interests: the core inter- behaviour and respond to it appropriately. ests of the PRC include Beijing’s interpre- It might result in false expectations and tation of the “one country, two systems” political costs, such as misinterpretations principle regarding Taiwan or , of mutual obligations. the Chinese leadership’s view of its terri- In addition to expertise and legal knowl- torial integrity, for example with regard to edge about China, specific knowledge of the Sea and the border con- socialist legal concepts is also helpful. Fur- flicts with and Japan, as well as inter- thermore, it is necessary to tap into the nal affairs and especially human rights knowledge of Chinese legal concepts that issues regarding or . China exists in universities and bring it into the will be better prepared to defend these mainstream. This knowledge should be interests based on its own understanding included in discussions about functional of the law. Europe can expect to encounter political decisions and in intergovernmen- more headwinds here. Beijing is also forg- tal negotiations with China in a bilateral ing strategic alliances and using United and multilateral framework. Nations organisations as a mouthpiece, Political decision-makers in Germany such as the UN Human Rights Council. and Europe should prepare specifically Extra-territorial dimension: interna- for Chinese argumentation patterns and tional law enforcement cooperation is the scenarios. The following aspects are par- area Beijing is pushing hardest when it ticularly affected: comes to international legal partnerships. The rights of foreigners and foreign This could have serious consequences for companies in China: there is a legal grey Europeans in countries that have concluded area in to which it is increasingly easy to mutual legal assistance or law enforcement fall as a foreigner, especially because China agreements with Beijing. They may even be attaches great importance to national secu- extradited to China. rity. As a result, legal certainty in China is International discourse power regard- suffering, as evidenced by the recent sanc- ing the concept of the rule of law: Beijing tions against EU citizens and institutions. will increasingly promote its own definition Anyone “associated” with sanctioned insti- of the rule of law internationally. For the tutions or persons is prohibited from “doing CPC leadership, it is a matter of questioning business” in China. The terms “associated” established definitions and then countering and “doing business” are not explained in them with Chinese terms. The Chinese side detail. The wording of the sanctions against argues that the existing international legal British persons and organisations, for ex- system reflects the balance of power from ample, is much clearer. At the same time, the period immediately after the Second however, there is more legal certainty for World War. Beijing is calling for a general foreigners and foreign companies in “non- overhaul of the world order because the sensitive” areas. international power structure has changed International : it is essential fundamentally. to set effective incentives and to introduce For German and European decision- effective control mechanisms in inter- makers, this development means that the national agreements with China, due to rule of law should continue to be promoted

SWP Comment 28 April 2021

7 in third countries, such as those in the Indo-Pacific region. In its policy guidelines for the Indo-Pacific region, the federal gov- ernment explicitly promises to promote the rule of law in the region. In addition, the rule of law would be an important com- ponent of an effective transatlantic China strategy. Despite difficult bilateral relations, in a dialogue with China on the rule of law, © Stiftung Wissenschaft procedural issues would be an area in und Politik, 2021 which an objective discussion still appears All rights reserved possible. One example would be digitalisa- tion in civil proceedings. This Comment reflects the author’s views.

The online version of Glossary this publication contains functioning links to other 法治中国建设规划 (F zhì zhōngguó jiànshè guīhuà) – Plan on Building the rule of law SWP texts and other relevant ǎ sources. in China 国特色社会主义法治 (Zhōngguó tèsè shèhuì zh yì SWP Comments are f zhì) – Socialist rule of law with Chinese to internal peer review, fact- ǔ characteristics checking and copy-editing. ǎ For further information on 习近平法治思想 (Xíjìnpíng f zhì sīxi ng) – Xi Jinping Thought on the rule of law our quality control pro- ǎ ǎ cedures, please visit the SWP 中国特色 (Zhōngguó tèsè) – with Chinese website: https://www.swp- characteristics berlin.org/en/about-swp/ quality-management-for- 法治 (F zhì) – Rule of/by law swp-publications/ 法制 (Fǎzhì) – Legal system 习近平新时代中国特色社会主义思想ǎ (Xíjìnpíng xīn SWP shídài zhōngguó tèsè shèhuì zh yì sīxi ng) – Stiftung Wissenschaft und Xi Jinping thought on socialism with Chinese Politik ǔ ǎ German Institute for characteristics for a new era International and 科学立法 (Kēxué lìf ) – Scientific legislation Security Affairs 和谐社会 (Héxié shèhuì)ǎ – Ludwigkirchplatz 3–4 智慧法治 (Zhìhuì f zhì) – Smart rule of law 10719 Berlin 依法治国 (Yīf zhìguǎ ó) – Law-based govern- Telephone +49 30 880 07-0 ance Fax +49 30 880 07-100 ǎ 优秀传统法律文化 (Yōuxiù chuánt ng f l www.swp-berlin.org wénhuà) – Excellent traditional Chinese [email protected] ǒ ǎ ǜ legal culture ISSN (Print) 1861-1761 ISSN (Online) 2747-5107 doi: 10.18449/2021C28

Translation by Martin Haynes

(English version of SWP-Aktuell 30/2021)

Moritz Rudolf is an Associate in the Research Division at SWP.

SWP Comment 28 April 2021

8