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China's Development Challenges


MDG Maps

Poverty in China

Gender Equality in China

Population and the Elderly

On the Brink of an HIV/AIDS Explosion

The Rule of Law in a Changing Society

China Facts at-a-Glance


The Rule of Law in All Aspects of China's Changing Society

China has always extolled the concept of good governance, but such governance was not based on the concept of  the  "rule  of law" but on  the  "rule  of  man",  and  was  mostly  understood  to  mean  "good government".  This   deep-rooted  tradition   still   engenders   a   powerful cultural   resistance   to   the implementation of the rule of law at all levels, but reform efforts are underway to give the rule of law growing significance as it touches on all aspects of China's changing society.

During the period of the centrally planned economy the resulting social structure left little room for law to play a significant role. In a society with no private property, labour as pieces on a one-sided chessboard, and individuals allocated no more economic resources than required to meet their basic needs, there was no need for a civil law. In a society where all economic activities were organised and managed by the government and  where  economic  entities  were  seen  as  players in  state  operations, economic laws were not needed.  In a society where the government is all encompassing there was no soil for administrative laws to take root as government rules and regulations took their place. Under the philosophy that the government represents the people, internal government procedures regulated conflicts between the government and the individual, not laws.

Today, the socio-economic reform in China, especially since 1978, requires good governance based on  reliable  legal  structures  and  institutions.  During  the  transition  to  a  socialist  market  economy, government with transparency and accountability in the management of state affairs is indispensable. In this regard, the rule of law and a clear-cut legal system are the means to achieve this transparency, as well as being the foundation for all other sectors of society to develop in a way that guarantees fairness,  equity  and  justice  and  predictability  in  terms  of  due  process  in  cases  of  conflicts  and controversies.

In 1997, the government announced the goal of governing the country according to law and building up  a  socialist  country  with  the  rule  of  law.  This  commitment  by  the  ruling  party  is  considered  a significant  political  milestone.  It  is  the  first  recognition  at  senior  levels  that  the  modernization  of China depends on laws rather than programmes or policies or plans.    In  March  1999, the  National People's Congress (NPC) included the concept of rule of law into China's constitution.

Based on these commitments and the constitutional rights now enshrined, there is still a long way to go. For example, general elections are held regularly in China, but only in rural areas at the village level. Free expression, association and assembly are guaranteed by the constitution, but administrative practices are often still governed more by considerations of control than the requirement to maintain this right. The Criminal Procedure Law was revised in 1996 to state that "no person shall be found guilty without being judged as such by a people's court according to law", but old practices, which did not clearly separate the functions of the judge, the procurator and the defence counsel, and giving the  judge  an  independent  and  impartial  status,  are  hampering  the  implementation  of  these  new procedures.  The  institutional  dependence  of  the  People's  Courts  on  local  government  makes  it difficult to gain the critical distance from political and other pressures in adjudicating independentlyand impartially the law in each case.

Governance Processes

Every civil servant in China has to become conversant with the idea of administrative power being exercised according to law.  This could be achieved through the updating of codes of conduct and the related updating of training programmes for civil servants. Particularly relevant would be that not only civil servants but also the general public at large would have access to information on policy/decision making processes, become aware of the meaning of the Rule of Law, and be indirectly involved in its implementation.

The increase in legislative action over the last 20 years is impressive. Now, increased attention has to be paid to the quality of legislation, i.e. the standard setting and the regulations which will create anenabling  environment  for  all  parts  of  society  to  participate  in  the  economic  and  social  changes. Greater consultation with experts and those ultimately concerned with the implementation of the law would be essential.  Already, a system of checks and balances is in operation, as the executive branch of the government and the NPC closely consult on major issues with the CPPCC. It is important thatboth the capacity of legislative bodies and training for legislators are strengthened to enhance their understanding of the significance and effects of the laws they enact.

Law enforcement
The law must be seen to work fairly and the discrepancy between the gradual perfection in legislature and the weakness in law enforcement is a serious problem. According to the law, once a court ruling is issued, all relevant parties must enforce the ruling automatically. However, it is common today that many  court  rulings  are  either  not  enforced  at  all  or  enforced  with  much  delay.  Therefore,  it  is important to strengthen the enforcement capacities of the court system.  Coupled with this is the need that  other  entities  support  Government  law  enforcement  activities.  For  example,  the  Government could consult with non-governmental, non-profit organisations which could act as impartial monitors or watchdogs, on industrial pollution for example. The Government would then steadily accumulate enough appropriate information to guide suitable improvements to future legislation.

Basic services

Rule of law is a structure as well as a value system. There is a danger if rule of law is taken only as a means of social control. The values underpinning the concept of rule of law are vital. More resources are needed to undertake legal and human rights education especially at the community level, enabling people  not  only  to  know  the  rules  but  also  to  use  the  rules  to  exercise  their  rights  and  protect themselves.  Government supported Legal Aid Associations are now available in all  provinces and could play an important role in this initiative



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Updated: December 12,  2001