Transcript Competition Law in China: A Brief Introduction

Chinese legal system
Zhang Xuezhong
Assistant Professor of law
[email protected]
East China University of Politics and Law
Overview
1. Post 1978 Legal Reform in China
2. State Structure of China
3. Legislation in China
1. Post 1978 Legal Reform
Large-scale nationwide mass political
stopped
Socialist modernization emphasized
Deng Xiaoping’s ‘Two Hands’ Policy:
• the economy must developed;
• the legal system must be strengthened.
Need for law to institutionalize Ad
Hoc Policies







Law needed for national development
To institutionalize the Party’s policies:
there must be laws to go by;
laws must be observed;
laws must be strictly enforced;
law breaker must be dealt with.
Law as fixation and codification of policies: to underpin
the success of economic reform and modernization & to
legitimate the exercise of state power
 Trial and error approach to economic reform & Legal
development in an ad hoc and piecemeal fashion
As a means to Govern Society and
regulate administration (influence of
soviet model)
• Guanli lun 管理论
• efficiency and stability
• "institutionalise governance of society and state
administration within the bounds of a set of legal
rules so that the state can effectively control and
manage the society’s politic, economic, and
cultural life and its administrative organs and
their officers"
• CrL&CrPL in 1979; Constitution in 1982.
‘Rational Law’ Required for a
Market Economy
Long term plan to establish a ‘socialist
market economy’ adopted in 1992
New parameters for legal development
Right-based legal discourse:
• ‘traditional doctrines’ abandoned;
• fusion of public and private law attacked;
Protection of individual rights
(common law model) 控权论
• assumes that the rights and interests of
the individual needs protection against
infringement or abuse by the state
• increase reciprocity between citizen and
state
• related concepts: separation of powers,
court fetters administrative power, rules
limit administrative discretion, arbitrary
power, rule of law
•
•
•
•
General Provisions of Civil Law(1986)
Administrative Litigation Law(1990)
Administrative Penalty Law(1996)
Criminal Procedure Law(1979, revised in
1996)
• Criminal Law (1979,revised in 1997 )
• Administrative Reconsideration Law(1999)
• Administrative License Law(2003)
Administrative Litigation Law(1990)
• To protect the lawful rights and interests of
citizens, legal persons and other organizations;
• To supervise the exercise of administrative
powers and ensure administrative agencies
exercise their power in accordance with the law.
• Burden of defendant to prove the facts and legal
basis for its administrative decision( concrete
administrative act: penalty or rejection of a
license application, etc.
• Usually, not have to exhaust admin. remedies
Administrative Reconsideration
Law(1999)
• Administrative remedies
• Review by administrative agency at the
next higher level
• Expeditious way to protect private rights
• Neutrality and independence not essential
Administrative License Law (2003)
• General provisions:
--to regulate the establishment and
implementation of administrative licenses;
-- to protect the legitimate rights and
interests of citizens, legal persons and
other organizations;
-- to safeguard public interests and
social order
• Establishment of an Administrative
License
--Scope of matters involving licenses
--Authorities empowered to establish
• Authorities to grant;
• Procedures of applying and granting (or
refusing) a license;
• Fees limited
Features of Criminal Justice
• Less Overtly political
• Equality before the law
• nullum crimen, nulla poena sine lege
(Abolition of crime by analogy);
• Non-retrospective，unless the new law is in
favor of the defendant;
• Proportionality of offence and punishment;
• Right to counsel;
• Limits on effectuality of defendant’s statement as
evidence against himself.
Some Notes Taken of the
Constitution’s 4 amendments
•
•
•
•
AMENDMENT ONE (1988)
AMENDMENT TWO (1993)
AMENDMENT THREE (1999)
AMENDMENT FOURTH (2004)
AMENDMENT ONE (1988)
• Private economy permitted: Exploitation is
back
• Lease-hold transfer permitted
AMENDMENT TWO (1993)
• More realistic attitude to national
development
• C.C.P’s leadership prolonged
• From “State –run” to “State-owned”:
Separation of Government and
Enterprises.
• Market economy to be established
AMENDMENT THREE(1999)
• Primary stage of socialism prolonged
• Rule according to law: Thin theories of
rule of law?
• Diverse sectors of the economy & Variety
of modes of distribution."
• Non-public economies further recognized
AMENDMENT FOURTH (2004)
• compensation for the land and other
private property expropriated or
requisitioned."
• Non-public economy
encouraged and supported
• Private property is inviolable
• a sound social security system
to be established
• Human Rights!
Legal system of P.R.C: Six Laws Again!
Substantive
Procedural
Const. Constitution (1982) with
its four Amendments
Admin. Administrative Penalty
Law(1996)
Administrative License
Law(2003)
Administrative
Review Law(1999)
Administrative
Litigation Law(1990)
Civil& General Principles of
Comm. Civil Law (1986)
Civil Procedure
Law(1991)
Crim.
Criminal Procedure
Law(1979, revised in
1996)
Criminal Law(1979,
revised in 1997) with 6
Amendments
• A gradual process of liberalizing national
economy: towards a market economy;
• More attention paid to the protection of private
rights;
• Constraints on the exercise of state power by
authorities and officers;
• Strengthen the legitimacy of C.C.P regime.
• Due to WTO accession, the Chinese legal
system entered a new stage of radical
changes.
Continued Modernization (or
Westernization) of Chinese Law
• Great attention given by scholars and law
makes to foreign law model
• Westernization in its development as one
of most prominent features of the Chinese
law
2. Structure of State
Structure of state (central)
National People’s Congress
Standing Committee
President
State Council
Ministry of Public
Security (MPS)
Supreme People’s
Procuratorate
Ministry of Justice
Supreme People’s
Court
Ministry of Civil
Affairs
CMC
Levels of State
•
•
•
•
•
Central level
Provincial level
Prefecture level
County level
Township level
Structure of state- vertical and
horizontal controls
NPC
State Council
Procuratorate
Court
MPS
Provincial
Congress
Provincial
government
Provincial
procuratorate
PSB
High Court
Congress and government- vertical
and horizontal supervision
NPC
State Council
Constitution ch3 s2
Provincial level people’s
Congresses arts 95-111
County level people’s
congresses
Provincial level government
arts 95-111
County level government
Township level people’s congress
Township government
Electors
Government structure
State Council
Ministries and Commissions
1998 reform- reduced number to 29
Provincial level
government
Provincial level bureaux
etc
etc
Court and congress structure
National People’s Congress
Provincial level people’s
Congress
Supreme People’s Court
(chief judge)
High People’s Court
etc
Special
Courts:
Forest
Maritime
People’s Tribunals
Intermediate People’ s
Court
Local (basic) people’s
Court
Special
Courts:
Railway
Military
Chinese court system
SPC
High military
court
High
people’s court
Intermediate
Intermediate Intermediate Maritime
military
forest court people’s court court
court
Basic
military
court
Basic forest
Basic people’s court
court
People’s Tribunals
High railway
court
Intermediate
railway court
Basic
railway court
Structure of a Court of First
Instance
Judicial commitee
Investigation
by PSO
Civil
division
Criminal
Prosecution by
Procuratorates
Case filing
division
Enforce.
Admin.
Collegial
panels
Collegial
panels
Sole-J
Trial
Sole-J
Trial
Civil & Admin.
Plaintiffs
Collegial
panels
Sole-J
Trial
Consider
• How might the structure of state influence
the system of rule-making?
• How might the structure of state influence
the position of the courts in relation to
other state agencies, its capacity to
supervise rule making and to exercise
effective supervision over those agencies?
3. Legislation in China
Legislation
National People’s Congress:
Constitution, Basic laws
Standing Committee: Law,
Legal interpretation
State Council
Administrative Regulations
SPC Judicial
Interpretation
Ministries administrative
rules
Provincial People’s
Congresses: local
regulations
Provincial Governments
Local rules
SPP Judicial
Interpretation
Sources of Law
• -constitution
• -laws: basic and non-basic
• -administrative regulations and ministerial
rules
• -local regulations and rules
• Judicial interpretations
Table: Division of legislative competence
Legislative body
Type of legislation Competence
NPC
Constitution
Amending
Basic laws
Enacting and amending
Constitution
Interpreting
Basic laws
Interpreting and amending
Non-basic laws
Enacting and amending
Administrative
regulations
Implementing provisions of laws
SCNPC
State Council
Matters within its statutory function
Delegated legislation
Provincial
congresses
Local regulations
Implementing provisions of laws &
administrative regulations
Local affairs
Initial local regulations
Ministries &
commissions
Ministerial rules
Implementing provisions of laws
and administrative regulations
Provincial
government
Local rules
Implementing provisions of laws,
administrative regulations, and local
regulations
Local administrative affairs
Table: laws and their judicial
interpretation
Clauses
I
authorities
time
GPCL
156
NPC
1986
GPCL Opinions
200
SPC
1988
CrPL
225
NPC
CrPL Interpretation
367
SPC
1998
CiPL
270
NPC
1991
CiPL Opinions
320
SPC
1992
ALL
75
NPC
1989
ALL Opinions
115
SPC
1991
1979,1996
Table: Amounts of legislations by various authorities: to be
updated
Laws
Administrative
regulation
Local Regulations
Government rules
Law making
authorities
NPC
SCNPC
State Council
Congresses
of
provinces
and
relatively
large
cities
Ministries and local
governments
of
provinces
and
relatively large cities
Period of Time
1978-2002
1978-2001
1978-1999
1978-1999
Amounts
430
913
7000
30000
• Why does China need so many regulations and
rules and judicial interpretations?
• -NPC and SCNPC laws are characterized by
generality and flexibility
• -Leave large room for interpretations and
clarification
• Example: SFEJVL-16 articles
SFCJVL-27 clauses
WFOEL-24 clauses
Legislation Law
• Attempt to define limits to law and rule
making power of state agencies
– Matters that may only be dealt with by law
• Listed in article 8
• Non delegable article 9
– Non retrospectivity art 84
• Ministries and Commissions
– Query whether there is now a requirement
that rules may only be passed to implement
higher level laws or administrative regulations
or where there is a delegation of rule making
power art.10, 71
Publicity and procedures for
making rules
• Requires promulgation and publication of all laws,
administrative regulations, rules for them to be
valid and enforceable
• Introduces procedures for law making
• State Council subsequently passed the
– Procedural Regulations for Formulating Administrative
Regulations 2002
– Procedural Regulations for Formulating Rules 2002
• Requires rules to balance empowerment with responsibility for
public welfare, improve economic management and public
service
• Improving the distinction between law and non-law:
– State Council Measures on the Handling of Official
Documents by State Administrative Agencies 2001
Hierarchy of laws and rules and
resolution of conflicts
• Legislation Law arts 78-92
NPC
Standing Committee
delegations
SEZs
State Council
Local
regulations
Ministries and Commissions
rules
Hierarchy of the Law
• The hierarchy of the law is determined by
which are their legislative bodies.
• The higher the legislative body is, the higher
the law is in authority.
• (1) The Constitution is of supreme authority.
• (2) Laws and regulations are superior to
those at lower level.
Hierarchy of the Law
• How to solve the conflicts between laws
and regulations at the same level?
• (1) Special laws and provisions prevails
over general ones(Art. 83, Legislation Law),
--SFEJVL, SFCJVL and WFOEL v. Company law;
--Contract Law v. GPCL;
--Provisions of Specific Contracts v. General Principles
and Rules.
• (2) New laws and provisions prevails over
old ones (Art. 83, Legislation Law): if the new law
supersedes the old one simultaneously, it is natural that
the new law applies.
Figure: Four-stage legislative process
Submission
Of bill
Consultation &
deliberation
Voting
Approval &
promulgation
Figure: Procedures for preparing the bills
NPC
Constitution and basic laws
SCNPC
laws
Law bills
Administrative regulations
State Council
LSO
Drafting, organizing
Of drafting activities
Reviewing and revising
Preliminary drafting by
Ministries and commissions
4. Rule of law in China: now and
future
• Rule according to law;
• Who makes the law: representativeness of
legislatures;
• What is the law about: protection of private
rights;
• Who interprets and applies the law:
independent courts;
• Government accountability: party
competition