Environmental Law Institute in partnership with Research Institute of Environmental Law, Wuhan Unversity Volume 1, Issue 1 Hogan Lovells January-March 2013 Overview of the Chinese Legal System By Jingjing Liu he People’s Republic of China (PRC) was founded The Political Structure in 1949 by the Chinese Communist Party Modern China is in form a unitary state, as compared (CCP). For almost three decades after the PRC’s to the federal system of the United States. All power Testablishment, there was a perception that a formal legal flows from the central government in Beijing. system for many areas of national life was unnecessary since However, economic reform has brought significant the economy was centrally controlled and conflicts could decentralization of economic administration, and thus be resolved through mediation or administrative in many cases Beijing has been unable to supervise means without reference to legal rights and obligations.1 effectively the exercise of local government power, However, the “Reform and Open Door” policy in the leading to substantial de facto autonomy for local late 1970s, which began China’s current rapid economic governments in many areas of activities.3 development and initiated the ongoing transition to a The PRC’s system of government has not adopted market economy, has had enormous implications for the American-style ideas of separation of powers as a form country’s legal development. The 1980s and 1990s saw of “checks and balances” between different branches of massive and rapid enactment of laws, including many government, due to the belief that disagreement between environmental laws, regulations, and rules. different governmental institutions should be avoided The rebuilding of China’s legal system over the because efficiency is the most important consideration past few decades has generally abandoned ideological for a socialist state like China. Instead, China’s central requirements and embarked on a massive effort of government resembles much more the parliamentary law transplantation from western legal systems and systems common in Europe where the governmental internationally recognized practices, especially matters head, the prime minister, is chosen from and forms a related to economic management, as a tool for attracting cabinet with other members of the legislature. Thus, foreign investment. Modern Chinese law in its forms, unlike in the American system, the head of government structure, and methodologies thus exhibits many western (the prime minister) is an individual and office distinct characteristics, though it is generally modeled on the from the head of state (the president of the nation). In European Continental civil law tradition in its legislative the United States, both functions are combined in the techniques.2 There has also been development in the American presidency. public law areas and significant implications for protecting According to the Constitution, all power in the PRC human rights (written into the 2004 Constitutional belongs to the people and is to be exercised through the Amendment) since China’s entry into the World Trade National People’s Congress (NPC) and local people’s Organization (WTO), which imposes requirements congresses at lower governmental levels.4 Thus, the NPC in on transparency and accessibility of law, reasonable appearance sits on top of China's political power structure administration of law, and impartiality, independence, as the supreme organ of the state. As a matter of practical and effectiveness of judicial review. reality, however, most governmental power is exercised by the Standing Committee of the Politburo of the CCP. Because the CCP has party organizations attached to Jingjing Liu is associate director of the U.S.-China government institutions at all levels and because the great Partnership for Environmental Law and Assistant Professor at Vermont Law School. Continued on page 3 ELR China Update™ ELR China Update™ is a quarterly newsletter analyzing the Our Partners most relevant developments in Chinese environmental Research Institute of Environmental Law (RIEL) of Wuhan law for international environmental lawyers, managers, University is currently the largest institute specialized in policymakers, and thought leaders. research and education of environmental law in China. The goal of this service from the Environmental Law It is also one of the Key Research Institutes of Humanities Institute (ELI) is to report on these developments and analyze and Social Science in Universities approved by the Ministry their implications. The Update will also identify and analyze of Education and the Secretariat of Environment and Resources Law Society of the China Law Society. RIEL potential future developments for readers, so that they have was founded jointly by the former Leading Group for advanced warning of risks and opportunities. The service will Environmental Protection of the State Council and former cover environmental legal and policy developments at the Ministry of Higher Education in 1981, and is now under the national and provincial level regarding climate and energy co-leadership of the State Environmental Protection Agency policy, manufacturing, importation and exportation, natural of China and Wuhan University. resources, product safety, worker safety, and other major The major tasks of RIEL include: doing studies on the basic theories of environment and resources law and policy environmental issues, such as water quality and supply. and major research programs arising in the practice; training Core editorial guidance for ELR China Update™ is senior professionals in environment and resources law, and provided by the publisher, ELI, with its partners the Research providing training programs in environment and resources Institute of Environmental Law of Wuhan University and law, policy, and management for governmental officials at attorneys from the law firm Hogan Lovells. 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Qin Tianbao, China Correspondent Hogan Lovells' practice's breadth, geographical reach, Philip Cheng, China Correspondent and industry knowledge provide the firm with insights into the issues that affect clients most deeply and enable the Stanley Boots, China Correspondent firm to provide high-quality business-oriented legal advice Daniel Fogarty, China Correspondent to assist them in achieving their commercial goals. Subscription: $200 annually. Contact [email protected] or 1-800-433-5120. 2000 L Street NW, Suite 620, Washington, DC 20036 ELR China Update® is published quarterly by the Environmental 202.939.3800, [email protected], www.eli.org Law Institute. ELI is a nationally recognized center for research ISSN 2153-1420 (print) ISSN 2153-1439 (online) and education on environmental policy, law, and management. An Copyright ©2013 Environmental Law Institute.® All rights reserved. independent, tax-exempt, and nonpartisan institution, ELI provides Reproduction in whole or in part without written permission from the information, research, and policy analysis to a broad constituency copyright holder is prohibited. The Environmental Law Institute is a of professionals in law, government, finance, business, advocacy registered trademark of the Environmental Law Institute in organizations, and academia. Washington, D.C. Page 2 ELR China Update January-March 2013 majority of government officials are CCP members, the party plays an important China’s Governance Structure but nontransparent role in and has enormous influence over the operation National People’s of China’s government at all levels. The Congress (NPC) result is that even if the law specifies particular requirements, the policies Standing Committee of the (NPC) of the Communist Party organization, through the party’s influence over the government officials who are also CCP Supreme People’s Supreme People’s State Council members, may greatly influence how the Court Procuratorate government implements or otherwise follows the law. The result