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China: Starting Points for Legal Research: Background Information

Background on Chinese Legal System

(Summarized & copied from Foreign Law Guide - Please see the FLG for a full description of China's legal system (proxy needed if off-campus) 

Branches of Government

There are three major government branches in the central government system in China: the National People’s Congress (NPC) (legislative), the State Council (executive), and the Supreme People’s Court and Supreme People’s Procuratorate (judicial). There are no American-style checks and balances among the three governmental branches in China.

Among them, the National People's Congress (NPC) is the highest state organ in ChinaThe State Council (SC), the Supreme People's Court (SPC), and the Supreme People's Procuratorate (SPP) are all accountable to the NPC. The NPC has the power to remove the Head of each of the other state organs and its own President and Vice-President. The so-called Chinese federalism is very different from American federalism.  In China, local governments have quite complicated relationships with central government in practice. Legally, local governments must enforce and comply with national law and order.

Socialist Legal System with Chinese Characteristics

The Chinese legal system is a socialist legal system with uniquely Chinese characteristics; it is very different from common law and civil law systems. Today, the Chinese government characterizes its legal system as The Socialist Legal System of Laws with Chinese Characteristics. 

The Constitution, which states that the Chinese people are under the leadership of “The Communist Party of China,” is the supreme law of the land, but it is not directly judiciable as there is no judicial mechanism to enforce Constitutional rights unless a specific law or regulation has been enacted to protect that right. The National People's Congress (NPC) and Standing Committee of National People's Congress (NPCSC) issue laws which become effective when signed by Presidential order.   The power to interpret laws in China is vested in the NPCSC, not the judiciary branch, and the NPCSC’s interpretations of laws have the same effect as the laws themselves. 

Administrative regulations issued by the State Council and departmental rules issued by the ministries under the supervision of the State Council must comply with the Constitution and the laws. A Local People’s Congress can only issue laws applicable to the local jurisdiction and in compliance with national Constitution, law, and administrative regulations. Article 73 of Legislation Law of the People’s Republic of Law defines the scope of local regulations.  

Judicial decisions and judicial interpretations issued by the Supreme People’s Court of China are not considered primary sources of law.

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