Case law plays the central role in all legal systems Is this true in China?
by
dapao119gmailcom (student)
Case law plays the central role in all legal systems. Critically evaluate this statement.
It is undoubtedly that case law plays the central role in Common Law legal system, as in Common Law system, one of the key concept is the doctrine of precedent. This means like cases are to be treated alike, furthermore, the lower courts in the same hierarchy must following the ratio decidendi from higher courts. However, not all legal systems treat case law as important as the Common Law system. In this essay, it is argued that in Chinese legal system, the Chinese Communist Party (CCP), the State Council of the People’s Republic of China and the National People’s Congress have a greater impact in Chinese legal system than case law. This article is to be expanded in the following route: first, an overview of Chinese legal tradition, the position of Chinese Communist Party (CCP) and the law-making process in China; second, an exploration regarding to the source of law in China and the third part is the hierarchy of Chinese legal system and the role of judge in Chinese legal system.
In China, the political system and law-making process rendered that case law would not be able to play the central role in Chinese legal system. The political system of People’s Republic of China is composed of the Communist Party of China, the State Council and the National People’s Congress. Furthermore, each of the provincial government and the People’s Liberation Army also have a huge impact as much as the National People’s Congress. In the constitution of the People’s Republic of China 1982, clearly stated that China must be a socialist state, and must following the leadership of the Communist Party of China. The Chinese constitution also implied the highest power of the state to The National People’s Congress which is similar to the parliament in Common Law system. The National People’s Congress and its Standing Committee perform the legislative power of the country. The National People’s Congress also excise the power of elect the President of the Supreme People’s Court (similar to Australian High Court), elect the procurator-general of the Supreme People’s Procuratorate and to interpret laws. Generally in Australia, the rule of governing the state is the separation of powers, that means the power of a state is divided into three different branches: a legislature, an executive, and a judiciary. The parliament exercise the law-making power and the High Court of Australia or other lower courts exercise the judiciary power that is interpret the law. By this way, the law makers could only change the law and the judiciary could only interpret the law but cannot change it. This ensured the separation of power. In contrast, the Constitution of China enabled the National People’s Congress the power of making the law and interpreting the law at the same time. This provision placed the legislature above the judiciary, in other words, the interpretation by National People’s Congress can limit or overturn the interpretation of the judiciary by judicial practice. The National People’s Congress composited by around 3000 delegates, and over seventy percent of the delegates are the Communist, therefore, the Communist Party maintains control over the National People’s Congress. In this way, the Communist Party kept the legislature and judiciary in its hand. The case law is also called the judge made law, as long as the Communist Party still maintain its power over the state, they would not allow any other institution to acquire their power of legislature. Therefore, the political system in China would not give the power to the judiciary to enable case law as a primary source of law.
