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Jurisprudential and Cultural Perspectives on the Implementation of Procedural Justice in Administrative Law in the People's Republic of China

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Jurisprudential and Cultural Perspectives on the Implementation of Procedural Justice in Administrative Law in the People's Republic of China ----- ------- ----~- JURISPRUDENTIAL AND CULTURAL PERSPECTIVES ON THE IMPLEMENTATION OF PROCEDURAL JUSTICE IN ADMINISTRATIVE LAW IN THE PEOPLE'S REPUBLIC OF CHINA By YANG YIN Submitted in total fulfillment of the requirements of the degree of Doctor of Philosophy August 1999 FACULTY OF LAW THE UNIVERSITY OF MELBOURNE For the research carried out in the Melbourne Law School (July 1994- August 1999) & For the birth of Murray Hanzhang Yang in Melbourne I declare that this thesis does not exceed 100, 000 words in length, exclusive of footnotes, tables and bibliographies. Except where otherwise indicated, the thesis is my own original work. Copy right @ Yang Yin August, 1999 ~-~----- ----------- (signature) Ill ACKNOWT ,EDGMENTS It has been a rewarding and unforgettable experience for me to carry out my research in the Melbourne Law School from July 1994 to August 1999. I would like to express my sincere thanks to Professor Cheryl Saunders, my supervisor, Ms Kaye Nankervis and other Law Faculty staff for their encouragement and help at every stage of my studies in Melbourne. Special thanks are due to Professor Luo Haocai, Vice-President of the People's Supreme Court of the People's Republic of China, and other Chinese administrative lawyers, whose guidance and minds were indispensable both to my overseas fieldwork in 1995 and 1997, and to the discussion concerning the Chinese administrative procedure system in my thesis. Nevertheless any inadequacies and errors remain my own. I also thank my wife, K. C. Zhang, for her patience and assistance. Finally I need to extend my thanks to the Australian Agency of International Development (AusAID), whose financial support made my research possible. Yin Yang The Melbourne Law School August 1999 iv ABSTRACT Initially, this thesis represents a theoretical argument about the values of procedure in different social settings. In particular, it explores the implications of such concepts as democracy, justice, efficiency and social stability from a procedural perspective. The argument shows that the role of procedure is indispensable to the concepts. Then the thesis specifically examines the role of procedure in ensuring justice and legality in the administrative state through a comparison between the Civil and Anglo-American legal traditions. In the context of China, the thesis shows that the underdevelopment of fair legal procedures in ancient China relates to the intention of ancient Chinese law, fa, and its tradition of li and 'non-litigation' (wu song). From the transformation period of Chinese law, dating back to the middle of the nineteenth century, the concerns about independent procedural laws in China increased. This was evidenced by the coiTesponding legislation drawing on the ideas and experiences of Western countries in both the late Qing dynasty and Republican China. In the People's Republic of China, the modernisation and Westemisation of Chinese law encountered a setback for decades. Legal instrumentalism prevailed. Procedural law was seriously underestimated. From the late 1970s, Chinese lawyers began to rebuild the legal system following a series of economic and ideological changes caused by a social reform. However, law cannot be implemented without the means to do so. Thus the lawyers began to highlight the role of procedural laws in overcoming the impact of legal instrumentalism. The thesis applies the initial theoretical argument to a discussion of the role of procedure in ensuring administrative legality in the People's Republic of China in view of Chinese tradition, its modem situations and contemporary experiences. The v focus in this context is the necessity and possibility of enacting a comprehensive administrative procedure Act. Looking at the experiences of Western countries and the existing features of Chinese legislation, it suggests that the best way to provide a procedural framework for administrative activities in China is to selectively and separately codify the procedures. Finally, a conclusion is drawn on the whole. vi CONTENTS Page Declaration ii Acknowledgments iii Abstract ································································ iv List of Cases ·································································· ix List ofStatutes ··································································· xi List ofTables and Figures ..................................................... xiii Abbreviations ··································································· xiv PART ONE- GENERAL INTRODUCTION 1 Chapter 1.- Introductory Remarks On The Research 1 1.1 Aims, Hypotheses and Structure .......... .............. ............. ... 1 1.2 Premises . .. ...... .. .... .. ... .. ... .. .... ... .. .. .. .... ....... .. .... .. .. .. .. .. 4 Chapter 2. - An Outline Of Chinese Administrative Law 10 2.1 Origin and Development .............. .................................... .... 10 2.2 Framework and Terminologies ............................................ 17 2.3 Barriers to Be Overcome ............................................. ........ 23 PART TWO- THEORETICAL APPROACHES 31 Chapter 3. - The Concept of Procedure 31 3.1 Meanings ofProcedure ......................................................... 31 3.2 Procedural Law.................................................................... 36 vii 3.3 Procedural Value.................................................................. 41 Chapter 4. - Procedure And Social Order 51 4.1 Procedure and Democracy...................................................... 52 4.2 Procedure and Efficiency ....................................................... 58 4.3 Procedure and Social Stability ................................................. 66 PART THREE- SYSTEMATIC ALTERNATIVES 75 Chapter 5.- Procedure And Administrative Legality 75 5.1 The Concept of Administrative Procedure Law ....................... 76 5.2 The Role of Administrative Procedure ..................................... 80 Chapter 6. - An Overview Of Administrative Procedure Systems 89 6.1 Features in the Civil and Anglo-American Tradition ................ 89 6.2 The Shift in Europe .............................................................. .... 93 Conclusion - Comparative Comments ........................................ 96 Chapter 7.- Natural Justice In The Common Law Tradition 100 7.1 Natural Law in Relation to Natural Justice ............................... 100 7.2 Natural Justice and Procedural Due Process in Tradition .......... 103 7.3 Natural Justice and Procedural Fairness ................................... 109 PART FOUR- CHINESE CONTEXT IN ANCIENT AND MODERN TIMES 115 Chapter 8. - Chinese Culture And Procedure System 115 8.1 Criminal Penalty- The Focus of the Ancient Chinese Law ...... 117 8.2 Li - The Moral Intention of the Ancient Chinese Law ............ 121 8.3 Chinese Non-Litigation Tradition ............................................. 130 Conclusion.............................................................................. 139 Chapter 9.- Chinese Legal System- A Procedural Perspective In The Transformation Period 1840 - 1949 140 9.1 Legal Reform and Its Impact upon Legal Procedure in the Late Qing Dynasty . 140 9.2 Procedure System in Republic China 1912 -1949 ................... 144 Implications . .. .. .. .. .. .. .. .. .. .. .. 152 viii PART FIVE- THE CONTEMPORARY CHINESE CONTEXT 155 Chapter 10. - Social Conditioning And Legal Construction In The P.R. China - A Procedural Perspective 155 10.1 An Overview ofthe Outset ofthe P.R. China ........................ 155 10.2 The Development ofthe Legal System ofthe P.R. China ....... 161 10.3 A Perspective on the PRC's Procedural Laws ....................... 170 Conclusion ............................................................. .............. .. 185 Chapter 11.- The Role OfProcedure In Chinese Administrative Law 187 11.1 Procedural Defects in Chinese Administration .. ................ ... 187 11.2 Procedural Value for Chinese Administrative Legality ........... 193 11.3 To Enact A Single Administrative Procedure Act: Necessity and Possibility .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 202 CONCLUDING COMMENTS 210 BIBLIOGRAPHY 214 ix LIST OF CASES References are to page numbers Page Australia Hall v. New South Wales Trotting Club Ltd [1976] NSW, L.R. 323 .................................. 104 Kioa v. West [1985] 159 C.L.R. 550 ................................................................................. Ill; 112 Public Service Board ofNew South Wales v. Osmond [1986] 60 A.J.L.R. 209 ................. 108 Salemi v. Mackellar (No.2) [1977] 137 C.L.R. 396 .............................................................. 104 Canada R. v. British Columbia Turkey Marketing Board, Ex Parte Rosenberg [1967] 61 D.L.R. 2d 447 .......................................................................... 108 The United Kingdom (1470) Y.B. 8 Edw. IV 21 ........ .-...................................................................................... 102 (1649) The Year Books I vol. 12, mo............................................................................... 102 Attorney-General (Hong Kong) v. Ng Yuen Shiu [1983] 2 A.C. 629 ............................... I 04 Barrs v. British Wool Marketing Board [1957] S.C. 72 ..................................................... 63 Bates v. Lord Hailsham [1972] I W.L.R. 1373 .................................................................. 112 Board ofEducation v. Rice [1911] A.C. 179 ..................................................................
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