1 - ZHANG_TICLJ 12/1/2010 5:03:42 PM THE SOCIALIST LEGAL SYSTEM WITH CHINESE CHARACTERISTICS: CHINA’S DISCOURSE FOR THE RULE OF LAW AND A BITTER EXPERIENCE Mo Zhang* ABSTRACT The rule of law both as a legal concept and as a practice in China has Become the subject of great attention. There is increasing international pressure on China to build a legal system that is premised on the “rule of law.” Domestically, the three-decades of economic reform generated a growing demand for the production of a legal system that will secure justice and restore the public confidence in the judiciary. China’s commitment to the rule of law is implicated By its effort to develop a socialist legal system that maintains Chinese characteristics. The specifics of what is a socialist legal system and what constitutes Chinese characteristics in terms of the rule of law are subject to further deBate. The Confucian heritage rooted legal tradition and the single party ruling system have significantly shaped the legal landscape of the country, making the route to the rule of law in China a long and thorny one. Despite China’s socialist laurel, the civil law influence apparent since the late 19th century remains highly visiBle in the modern Chinese legal system. China is determined to develop a legal system under the banner of the rule of law that is consistent with its unique philosophy of governance. Whatever difference there may exist between China’s rule of law discourse and the rest of the world’s, the development of a rule of law in China that incorporates Chinese characteristics signals China’s determination to move the country toward a sound legal system meaningful for China and for the international community as well. Among many challenges, however, the biggest one is perhaps how to reconcile the role of the ruling communist party and the “rule of law.” TABLES OF CONTENTS I. INTRODUCTION ................................................................................................... 2 II. THE DEVELOPMENT OF A LEGAL SYSTEM IN CHINA........................................... 7 A. Chinese Legal History in Brief................................................................ 8 B. Classic Chinese Legal Philosophy ........................................................ 13 1. The Confucian School of Thought ............................................. 15 2. The Legalist School of Thought ................................................. 18 C. The Traditional Chinese Legal System ................................................. 20 * Associate Professor of Law, Temple University Beasley School of Law. 1 1 - ZHANG_TICLJ 12/1/2010 5:03:42 PM 2 TEMPLE INT’L & COMP. L.J. [24.1 1. The Dominance of Confucian Philosophy and the Integration of Li and Fa with Li as the Core .............................. 20 2. The Chinese Criminal Law-Focused Legal Tradtion and the Subordination of the Judiciary to the Administration............................................................................ 25 D. Civil Law Influence and a Change of Tradition.................................... 27 E. Building a Socialist Legal System in Modern China ............................ 32 III. THE RULE OF LAW IN THE CHINESE CONTEXT.................................................. 35 A. The Chinese Meaning of the Rule of Law ............................................ 36 B. Law as Defined and Understood in China............................................. 38 C. Law and Government............................................................................ 41 D. Law and Confucian Impacts.................................................................. 43 E. Law and Social Harmony...................................................................... 44 IV. CHINESE CHARACTERISTICS: THE SPIRIT OF THE SOCIALIST LEGAL SYSTEM IN CHINA AND A CONCEPT YET TO BE FURTHER DEFINED................... 47 A. The CPC’s Leadership .......................................................................... 49 B. Socialism............................................................................................... 52 V. CRITICAL ISSUES FACING THE CHINESE LEGAL SYSTEM AND CHINA’S MOVE TOWARD THE RULE OF LAW.................................................... 55 A. The Theme of a Legal System: Rights-Based v. OBligations-Base......................................................... 55 B. The Role of the CPC: Supremacy of the Party v. Supremacy of the Law ................................ 58 C. The Dominance of PuBlic Ownership: Public Domain v. Private Interest ......................................................... 61 VI. CONCLUSION .................................................................................................... 63 I. INTRODUCTION Beginning with the onset of vast economic reform in 1979, China has attempted to build its legal system according to the rule of law theory. In 1997, the ruling Communist Party of China (“CPC”) made it a goal to establish a “socialist legal system with Chinese characteristics” By 2010.1 This goal was intended to serve a two-fold purpose: to demonstrate China’s commitment to the rule of law and to differentiate China’s legal system from the rest of the world’s.2 This 1.Jiang Zemin, Report at the 15th National Congress of the CPC: Hold High the Great Banner of Deng Xiaoping Theory for an All-round Advancement of the Cause of Building Socialism with Chinese Characteristics to the 21st Century, Sept. 12, 1997, http://news.sina.com.cn/c/2002-10-22/1404777724.html. For an English translation, see http://www.fas.org/news/china/1997/970912-prc.htm. 2.See SUN GUOHUA, A STUDY IN THE SOCIALIST LEGAL SYSTEM WITH CHINESE CHARACTERISTICS, CONCEPT, THEORY AND STRUCTURE 24-26 (China Democracy and Legality 1 - ZHANG_TICLJ 12/1/2010 5:03:42 PM 2010] THE SOCIALIST LEGAL SYSTEM 3 commitment, however controversial, helped China gain its memBership in the World Trade Organization (“WTO”) in DecemBer 2001.3 In early 2008, the Chinese Government proclaimed that such a legal system had been primarily established, implicating that the 2010 goal would be reached as planned.4 On FeBruary 28, 2008, the Press Office of the State Council released The White Paper on China’s Rule of Law,5 which heralded China’s development of a socialist legal system with unique Chinese characteristics as one of the greatest achievements in the advancement of the rule of law in China.6 Many Westerners who are familiar with the rule of law concept may contemplate what the socialist legal system developed in China encompasses, and what the incorporation of Chinese characteristics actually entails.7 In his Book The Civil Law Tradition, Professor John Merryman categorized three highly influential legal traditions: the civil law, common law, and socialist legal traditions.8 However, the socialist law referred to in Merryman’s Book was synonymous with the former Soviet law or Stalinist law,9 and thus did not necessarily reflect the law in China, notwithstanding the fact that China was and still is a socialist country. Some critics of the Chinese legal system Believe that implementation of the rule of law remains distant, even though the concept is not entirely new to the nation and despite efforts taken to promote governing the country according to law.10 Others argue that emBedded in traditional Chinese culture is a “‘reluctance Press 2009). All translations of sources written in Chinese are the work of the author. The author has verified the corresponding citations and footnotes. 3.Under the term of its accession to the WTO, China was oBligated to further undertake reform to bring its legal and regulatory system in line with those of other WTO memBers. Decision, Accession of the People’s Republic of China, WTO Doc #01-5996, WT/L/432, an English text of the accession, available at http://docsonline.wto.org. 4.Wu Banguo, Report on the Work of the Standing Committee of the 11th National People's Congress (NPC), Mar. 9, 2009, available at http://www.npc.gov.cn/englishnpc/Speeches/2009-03/16/content_1493447.htm (“Since the reform and adoption of the opening-door policy, through the joint efforts from all aspects, toward the end of the term of the 10th NPC, the socialist legal system with Chinese characteristics… had basically been established”). 5.Press Release, Office of the State Council of China, White Paper on the Rule of Law in China, available at http://www.chinadaily.com.cn/china/2008-02/28/content_6494029.htm [hereinafter White Paper]. 6.Id. 7.See Randell PeerenBoom, Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China, 23 MICH. J. INT’L L. 471, 474-75 (2001-2002) [hereinafter Debating Rule of Law in China]; see also Jiangyu Wang, The Rule of Law in China: A Realistic View of the Jurisprudence, the Impact of the WTO, and the Prospects for Future Development, SINGAPORE J. LEGAL STUD. 347, 348-49 (2004). 8.JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 1 (Stanford Univ. Press, 2d ed., 1985). 9.Id. at 4-5. 10.See Wejen Chang, Foreword to THE LIMITS OF THE RULE OF LAW IN CHINA, at vii (Karen G. Turner, James V. Feinerman & R. Kent Guy eds., Univ. of Washington Press 2000). 1 - ZHANG_TICLJ 12/1/2010 5:03:42 PM 4 TEMPLE INT’L & COMP. L.J. [24.1 to follow formal laws,’ and a ‘fundamental lack of respect for procedural justice.’”11 Still, many have hailed China’s legal development in the past thirty years, but worry that the rule of law experiment is at a crossroads and has lost momentum.12 As a result,