LAW437/BSUL388 Chinese Trade and Investment Law

By examining the relationship between the CPC and different government organs as well as its power execution in details, there further reveals a contradictory notion of “separation of power” between theory and reality. In theory, to respect the independency nature of each power, the CPC does not have direct power to interfere with any of the legislative, administrative nor the judicial organs. On the other hand, while each of the responsible government body is respectively responsible to the CPC, the CPC in fact controls the all the organs, including the legislative system. Therefore, it can be said that all of the powers are interrelated when it comes down to the CPC, and the separation of legislative, administrative and judicial power could only be interpreted as achieving at a functional level as minority view suggested. 

Western critics often argue that there is a lack of “rule of law” against Contemporary Chinese legal system. In Lewis’s argument,  he summarised some of the reasons as follows: a shortage of professionally trained legal workers; lack of “stare decisis” (precedents) in Chinese legal system; lack of legal conciseness among Chinese people as well as the government, the CPC’s superior position over law.

Furthermore, the lack of a reliable rule of law had also created skepticism on issues, such as governing Chinese behavior in international commerce, which once lead to some serious concerns about China's readiness for WTO membership.

The following question is how China should reform its judiciary system so that meanwhile Chinese law-making can still maintain the balance between its culture and the globalization process. To explore this issue in depth, it will be necessary to firstly look at the existing conflict between these two ends.

The first issue come to mind is about the function of law. In China, due to historical reasons and its Communist System characteristics, law functions merely as under controlled by one party, which is the presence of a still nearly totalitarian government. 

Secondly, in reality, Chinese law tends to be more like an ideological ideal rather than presenting local people’s need. Issue of freedom of speech and its allegation in the constitution presents serious conflicting ideas in reality. Then the question comes down to whether those who make the laws are representing people’s will or merely use its legislative power to secure its own political domination?

When law is designed to protect individual’s rights and reflect people’s will, individual’s awareness of the law becomes of great importance, both in theory and practice in the development of the law. Although in recent years, an increasing number of Chinese citizens began to realize seeking legal advice to solve problems. In general, due to the massive population of people where a large proportion of which comprises people living in rural side who lack education and training; legal consciousness among Chinese citizen is still a very weak point.  

Therefore, the following question is which of these takes priority, the globalization process or the fundamental cultural consciousness? Should the Chinese government prepare themselves for the globalization process first or its people who are direct beneficiaries of the process? Which is to give up and how to compromise? Should encouragement of legal culture take over China’s urgent assertion into the globalization process? One thing is definite, that is there will be a long way ahead for China to conform to the globalization process along with progressive changes.

Legal profession

The degree of independency of the legal profession in a country reflects its degree of democracy and it also has direct influences and impact on its social, legal and economical development, this issue is also at challenge in china.

To chase up with the globalization process, a high demand of professionally trained legal workers is required, maybe even internationally. In China, there is a shortage of legally trained judges due to a number of reasons.  Prior to the legal reforms being taken place in the late 1970s, legal knowledge became secondary to political qualification. Furthermore, a stable political statue, such as being an army member would generally assure a better social statue for an individual. There is no exception in the legal area; hence army members have taken a large proportion of judges before China’s legal reform. In sum, political statue and qualification have played a vital role in the old days (Communism) and it continuously influences the development of China’s legal profession but nowadays in a more subtle way, aims to stabilize the political power of the CPC.  The Communist System is another difficulty that closely relate to the lack of a rule of law, in the presence of a still nearly totalitarian government.

In relation to the power of legal profession body in China, unfortunately, the removal and replacement of judges are done by the CPC party. Also, disqualification of lawyer is under the control of the local government rather than its own profession body. 

On the other hand, Chinese legal profession has come to recognize the above issues and is now in an active attempt to prepare for this globalization process.  The vice-minister of justice has admitted that the problems that the globalization process would bring are the result of its own structural defects. Reforms for the legal profession are necessary, according to the president of the All-China Association of Lawyers: emphasis will be put on the following areas: reform the country's legal management and rely more on Bar Associations that conform with WTO practices; transform China's present small law firms into corporate ones with each lawyer focusing on specific areas; improving self-disciplinary functions of Bar Associations and formulate relevant rules, including the revising the Lawyers' Law; promote exchanges and cooperation between Chinese and lawyers abroad and china will further expand China will further expand its legal service industry abroad.  Whether these changes will bring China’s legal profession conformity with the globalization process requirements is still at question. Nevertheless, so far the Chinese government has displayed a positive attitude and urgency towards its willingness in taking part in the globalization process.  

Contemporary Legislation

Open door policy is an introductory response of Chinese government in terms of taking part in the globalization process. It was targeted at attracting foreign capital and advanced technology. Meanwhile, much legislation was introduced along the way to provide legal protection for foreign investment. This includes Special Economic Zones (SEZs) as well as Foreign Direct Investment (FDI).

Nevertheless, problems arise, for example, the trade regulations and tariffs are set by national policy, but their implementation in different provinces and ports is inconsistent.

In addition, now China's legislative drafters are working to bring laws into conformity with WTO requirements. Major legislation, including amendment of the Chinese Constitution, is needed. The role of the courts is also need to be enhanced. More significantly, the deeper change is needed in the way Chinese officials think about law. “Their mentality favors laws and regulations that are drafted to allow flexible implementation - which sacrifices clarity and expands administrative discretion. Giving up flexibility would mean varying law less according to changing Party policy”.

It has been recognized world widely that China is an important player in the global economy. In fact, it is already one of the world's top 10 exporters and is expected to be the world's largest economy early in the next century. China itself also has this increasing awareness its need to take part in this globalization process. Nevertheless, due to historical and social reasons, deficiencies of its own legal system and law kept slowing down its pace. Hence, legal reforms are necessary, yet, as the above discussion has led, the possible changes will only be progressive due to its unique social status. The Chinese government has actively shown willingness to assert itself into the globalization process through changes. It is not definite how long the process will take, but it will be progressive.

 

Bibliography:

Cambridge International Dictionary of English

Greg Mastel,  “Beijing at bay”. (China and international trade)

Foreign Policy, Fall 1996 n104 p26(9)

Kui Hua Wang, Chinese Commercial Law, Oxford University Press, Melbourne, 2000.

Randall Peereenboom, “Globalization, Path Dependency and the Limits of Law: Adminstrative Law Reform and Rule of Law in the People’s Republic of China” Berkeley Journal of International Law Spring 2001 v19 i2 p161(104)

“SPECIAL ISSUE: CHINA: Trying Times; WTO entry will challenge China's legal system.” AsiaWeek, April 4, 2001 pASWK15977553

William P Alford; “Double-edged swords cut both ways: Law and Legetimacy in People’s Republic of China”, Daedalus, spring  1993 v 122 n2 p45 (25)

Xinhua News Agency, Chinese Legal Profession Prepares For WTO Accession. Jan 10, 2000 p1008008h0069

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