NO. 28 APRIL 2021 Introduction Xi Jinping Thought on the Rule of Law New Substance in the Conflict of Systems with China Moritz Rudolf In its first “Plan on Building the Rule of Law in China (2020–2025)”, the leadership in Beijing 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 state more efficient and to reduce the arbitrariness of how the law is applied for the majority of the popu- lation, among other 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 judiciary and the principle of separation of powers 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 knowledge on this topic will be imperative in order to grasp the strategic implications of China’s legal policy, to better understand the logic 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 “Xi Jinping 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 Li 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 Communist Party 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 self-determination, fields and China’s circumstances, such as in is irrelevant. In addition, the party relies the formulation, “Human rights with Chi- on advanced technology in the search for nese characteristics”. According to Article 1 justice, for example in digitalised court pro- of the Chinese Constitution, “the defining ceedings and via Internet Courts. feature of socialism with Chinese charac- “Xi Jinping Thought on the Rule of Law” teristics is the leadership of the CPC”. The is another term that the CPC is promoting term “socialist law with Chinese character- in China’s discourse 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 tradition, 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 revolution, 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 Jiang Zemin, as rule of law in unified leadership, “scientific legislation”, Western discourse. The CPC does not accept strict law enforcement, fair trials, 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 rhetoric 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 Hu Jintao created state. On the other hand, it is not only rule incentives for corruption 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 Confucius. Xi face-saving mediation. This risked encour- Jinping regularly invokes key aspects of aging the rise of informal justice. Bribery- Confucianism 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 laws. While Xi’s policy was initially shaped by meas- in Europe 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 judges. 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 constitutions 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 becoming 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 civil law, stood in Western countries because the questions of jurisdiction 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 being 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.