Desmond Wee

PSCI229 China’s Domestic Politics

University of Pennsylvania

Symbol of the Supreme People’s Court (SPC)

Donald Clarke, Peter Murrell, and Susan Whiting, “The Role of Law in China’s Economic Development,” in China’s Great Economic Transformation, (Cambridge University Press, 2008) chapter eleven, pp. 375-428

Problems of China’s Legal System Today Significant gaps in legal structure governing economic

activity

Lacks a number of institutional features that could be effective in identifying and reducing the inevitable gaps and ambiguities

“Local protectionism”: dependence of courts on local government and Party leaders

Corruption

Rights Hypothesis “…[E]conomic growth requires a legal order offering

stable and predictable rights of property and contract”

However,

Clarke, Murrell & Whiting (CMW): “…provides little explanatory power for China.”

Functional Substitutes for Formal Institutions Property Rights

Cadre evaluation system (Lecture 7; Whiting)

Fiscal system (Lecture 7; Whiting)

Local government ownership of township and village enterprises (TVEs)

Transactions in Goods & Services

Dual-track system

Footnote: Transitional institutions vs. Best-practice institutions (Qian, 2003)

Conclusion The relationship between legal and economic

development was bidirectional – a coevolutionaryprocess

Have formal legal institutions contributed in an important way to China’s remarkable economic success?

No, but instead…

Economic success has fostered the development of law, rather than the reverse.

Jerome Cohen’s Testimony to the Congressional-Executive Commission on China

Criminal Justice Death penalty

Criminal Procedure Law (CPL) No warrants

Arrest

Search

(Mostly) no bail/“release under guaranty pending trial”

Limited right to counsel

False confessions gained by torture UN Convention Against Torture

Section 306 of the Criminal Law

Reeducation through labor (“laojiao”)

Major Defects National People’s Congress (NPC) Standing

Committee (NPCSC) reserves the sole power to modify legislation; interpret and apply the Constitution

The Chinese Constitution is not enforced

No judicial review for courts: invalidating legislation is prohibited

Conflict: courts must seek a resolution from a higher-level legislative body OR rule in accordance with the lower-level rule

Constitutional Review: The NPC Review Model NPCSC

Law on Legislation

Sun Zhigang case

Limited review: Administrative Litigation Law

State Compensation Law

Supreme People’s Court 2001 education case “Reply to Qi Yuling”; 2008 update

[Update:] 2011 Sina Weibo case

(Independent?) Constitutional Court?

Further reading Judicial reform: Court orders

http://www.economist.com/news/china/21591210-it-turns-out-torturing-people-confessions-isnt-all-right-after-all-court-orders

China’s Constitutional Crisis http://www.theatlantic.com/china/archive/2013/09/chinas-constitutional-crisis/279285/

Citizens’ Rights, the Constitution and the Courtshttp://blogs.wsj.com/chinarealtime/2011/09/26/citizens%E2%80%99-rights-the-constitution-and-the-courts/

Chinese Judge Expresses Support for Free Speech on Sina Weiboin Ruling http://www.businessinsider.com/chinese-judge-expresses-support-for-free-speech-on-sina-weibo-in-ruling-2011-9

A Comment on the Rise and Fall of the Supreme People’s Court’s Reply to Qi Yuling’s Case http://suffolklawreview.org/wp-content/uploads/2013/01/Tong_AdvancePrint.pdf