CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA

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CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA
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PREAMBLE

• China is a huge country with a total
  land area of 9.6 million square kilometers, and
  more than 1.3 billion people which amounts to one
  fourth of the world population.
• China law is one of the oldest legal
  traditions in the world. At present, Chinese law
  has been a complex mix of traditional Chinese
  approaches and Western influences.

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Uniqueness of Chinese Laws

• 1. One unitary country with multiple legal
  Jurisdictions
• Since the return of Hong Kong and Macau in 1997
  and 1999, China has three legal jurisdictions.
  This is part of the One Country, Two Systems
  policy.
• Hong Kong still retains the common law system
  inherited as a former British colony, and Macau
  employs a legal system based on that of
  Portuguese civil law. They have their own courts
  of final appeal and extradition policies.
• Hong Kong and Macau are outside of the legal
  jurisdiction of China, except on constitutional
  issues.

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2. Striking Chinese Characteristics

• For most of the history of China, its legal
  system has been based on the Confucian philosophy
  of social control through moral education, as
  well as the legalist emphasis on codified law and
  criminal sanctions.
• Confucianism relies on traditional informal
  methods while Legalism makes standard law that
  even the emperor should be bound by.

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3. Significant external influences

• The civil law tradition has dominant influence on
  Chinese law since the Qing dynasty to 1940s and
  re-emerging as a significant force in modern
  China
• The Soviet Union influence was great between
  1950s and 1970s and even can be identified today
• Common law is also finding its way into Chinese
  law, especially in procedural law and commercial
  law.
• In general, Chinese legal system is largely a
  civil law system, reflecting the influence of
  Continental Europe legal systems. However,
  earlier traditions from Chinese history have
  retained their influence.

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Case Law

• In China, unlike common law jurisdictions such as
  the United States or England, there is no strict
  precedential concept for case law.
• In theory, each case stands as its own decision
  and will not bind another court.
• in practice lower peoples courts judges often
  attempt to follow the interpretations of the laws
  decided by the Supreme Peoples Courts.
• Moreover, higher courts can use the finality of
  their judgments on appeals as having a binding
  effect on the lower court that issued the first
  judgment or order.

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Supremacy of the Constitution

• The highest and ultimate source of legal norms in
  the PRC is the Constitution of the People's
  Republic of China.
• It establishes the framework and principles of
  state, and lists the fundamental rights and
  duties of Chinese citizens.
• Any laws contravening the constitution are null
  and void.

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Brief History

• Over the past century, there have been numerous
  constitutions in China.
• The first attempts towards implementing a
  constitution in China were made during the final
  decade of the Qing Dynasty.
• Several constitutions were subsequently
  promulgated by various controlling groups between
  that time and the establishment of the PRC.

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• After PRC establishment in 1949, China has
  adopted 4 constitutions consecutively.

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• 1954 constitution was based on the constitution
  of the Soviet Union.
• 1975 constitution of the PRC was modeled on the
  ideology of the Cultural Revolution. This
  constitution subjected the NPC to the Communist
  Party and removed previous constitutional
  protections such as equality under the law and
  private property succession rights.
• 1978 constitution moved away from the ideologies
  of the Cultural Revolution, it did retain some
  remnants of it. It also retained Communist Party
  control over the state structure.
• 1982 constitution shifted to economic
  construction and modernization. This Constitution
  also contains more extensive rights than any of
  the previous constitutions.

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• The current constitution was adopted at the Fifth
  Session of the Fifth National People's Congress
  on December 4, 1982.
• Since then, the Constitution has been amended 4
  times, respectively in 1988, 1993, 1999 and 2004.

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State Nature

• The socialist system is the basic system of the
  People's Republic of China.
• The National People's Congress and the local
  people's congresses at various levels are the
  organs through which the people exercise state
  power.
• All administrative, judicial and procuratorial
  organs of the state are created by the people's
  congresses to which they are responsible and by
  which they are supervised.

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Economic system

• China implements socialist market economy.
• The basis of the system is socialist public
  economy with the public ownership remaining
  dominant.
• Individual, private and other non-public sectors
  of the economy exist and are major components of
  the socialist market economy.
• The state encourages, supports and guides the
  development of the non-public sectors of the
  economy, and exercises supervision and control
  over the non-public sectors of the economy in
  accordance with the law.

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• Socialist public property is inviolable.
• The state protects socialist public property.
  Appropriation or damaging of state or collective
  property by any organization or individual by
  whatever means is prohibited.
• The lawful private property of citizens is
  inviolable.
• The state protects according to law the right
  of citizens to own and inherit private property.
• The state may, in the public interest,
  appropriate or requisition private property of
  citizens for its use in accordance with the law,
  while making compensations.

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The Legislative system
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The Legislative system

• The legislative system refers to specially
  defined activities by a specially appointed organ
  to work out, recognize and change laws and
  regulations by using its designated rights,
  following certain procedures and applying the
  necessary technique.
• China's legislation includes
• the legislation of the National People's Congress
  and its Standing Committee,
• regulation making by the State Council and its
  relevant departments,
• the legislation of ordinary localities, ethnic
  autonomous regions, special economic zones and
  special administrative regions.

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The National People's Congress

• NPC is "the highest organ of state power" and
  exercises "the legislative power of the state."
• The Constitution and Law on Legislation enshrines
  the NPC with authority to
• Enact and amend the Constitution
• Enact laws
• Supervise national legislative operations and,
• Exercise its power in other legislative efforts.

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the NPC Standing Committee

• The NPC Standing Committee is the permanent
  office of the NPC. Its legislation is of the
  highest level next to that of the National
  People's Congress.
• The Constitution and Law on Legislation grant the
  following major legislative authorities to the
  NPC Standing Committee
• The power in enacting and amending laws
• The power in interpreting the Constitution and
  laws
• The power in supervising legislation and,
• Other legislative powers.

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State Council

• the State Council is the highest administrative
  organ of the central government .
• the State Council mainly exercises the following
  legislative functions
• To implement and amend administrative rules and
  regulations
• To submit drafts of laws to the National Peoples
  Congress and its Standing Committee
• To make provisions through authorization
• Regulation making supervision within a certain
  range

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• the National Peoples Congress and its Standing
  Committee can, according to actual necessity,
  authorize the State Council to make
  administrative rules and regulations in regard to
  matters that should be stipulated by laws and
  regulations.
• Except for matters regarding criminal
  legislation, the basic political rights of
  citizens, the rights of personal freedom, and the
  judicial system.
• The State Council is also empowered with a
  certain degree of supervision rights in
  regulation creation. It has the power to change
  or cancel any unsuitable decisions and orders
  made by its subsidiary departments or by local
  government.

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Departments of the State Council

• The regulation making by the departments under
  the State Council is one with Chinese
  characteristics, The State Council has several
  dozen ministries, commissions, and other directly
  affiliated organs. The rules and regulations they
  make have equal validity.
• Article 90 of the Constitution stipulates that
  "The ministries and commissions issue orders,
  directives, and regulations within the
  jurisdiction of their respective departments and
  in accordance with the law and the administrative
  rules and regulations, decisions, and orders
  issued by the State Council."

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Local legislature

• Local legislatures refers to the local organs of
  state power that make and amend standard legal
  documents within their own administrative areas,
  in accordance with relevant laws.
• Local legislation is an important aspect of the
  whole legislative system of the country.
  Includes
• general local legislation, including 22 provinces
  and 4 special municipalities, (26)
• local legislation in ethnic autonomous areas, (5)
• local legislation in the special economic zones
  (5)
• special administrative regions. (2)

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Local legislation in China mainly cover the
following

• to effectively enforce the Constitution, laws,
  rules, and regulations. On one hand, local
  legislation can make these laws and regulations
  more specific to the local situation for
  effective performance at different places in
  different situations, with the help of
  implementing rules or flexible regulations. On
  the other hand, local legislation can make the
  above easier to perform or supplement wherever
  the rules are inadequate.
• to settle those issues that legislation at the
  central level cannot solve independently or for
  which central legislation temporally does not
  exist.
• to independently solve all issues that should be
  settled through local legislation. For example,
  issues related to local policies, economy,
  education, science, culture, public health, civil
  affairs, and other specific issues that should be
  settled through local legislation.

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The Executive System
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The President

• The President is the legally head of state.
• He is responsible for state's foreign affairs and
  defense affairs.
• By law, the President must be a Chinese citizen
  of 45 years of age or older. The President cannot
  serve for over two successive terms, a term being
  the equivalent of one session of the NPC, which
  is five years.

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State Council

• The State Council, which is largely synonymous
  with the Central Government, is the chief
  administrative authority. It is chaired by the
  Premier and includes the heads of each
  governmental department and agency. There are
  about 50 members in the Council
• As the chief administrative organ of government,
  its main functions are to formulate
  administrative measures, issue decisions and
  orders, and monitor their implementation draft
  legislative bills for submission to the NPC or
  its Standing Committee and prepare the economic
  plan and the state budget for deliberation and
  approval by the NPC.
• The State Council is the functional center of
  state power.
• The State Councils term of office is five years

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The Judicial system
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The nature of the judiciary system

• the judiciary means law enforcement activities
  conducted by the country's judicial organs and
  organizations in handling prosecuted or
  non-prosecuted cases.
• Judicial organs are responsible for
  investigation, prosecution, trial and execution
  of cases, including the prosecutors, the trial
  institutions and the custodial system.

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The structure of Courts
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Court System

• China has a four-level court system.
• the top is the Supreme People's Court
• Lower courts are the higher people's courts in
  provinces, autonomous regions, and special
  municipalities (31)
• Intermediate people's courts at the prefecture
  level and also in parts of provinces, autonomous
  regions, and special municipalities (376)
• Basic people's courts in counties, towns, and
  municipal districts, (over 3000) which are
  further subdivided into about 20,000 smaller
  units referred to as peoples tribunals located
  in towns and villages.

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Supreme Court

• The Supreme Court is in Beijing. The highest
  judicial organ, exercising the highest judicial
  power.
• The Supreme Court exercises the following powers
• Supervise lower courts and special courts.
• Try the following cases a) First-hearing cases
  falling under its jurisdiction as prescribed by
  the law. b) Cases appealing or protesting rulings
  of higher courts and special courts, and
  protested cases submitted by the Supreme
  Procuracy
• Approve death penalty cases.
• Issue judicial interpretations on how to apply
  law and writs.
• Lead and manage judicial administration of courts
  at all levels across the country.

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Higher Peoples Court

• The first instance cases assigned by law, or
  transferred from lower courts
• Major criminal cases which impact the entire
  province.
• Hearing cases of appeals or protests against
  judgments and orders of lower courts

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Intermediate Peoples Court

• First instance jurisdiction in some cases,
  including
• Those transferred to it from basic peoples
  court
• major cases dealing with foreign parties
  Endangering the State Security
• criminal cases subject to sentence of life
  imprisonment or death
• hearing appeals and protests.

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Basic Peoples Courts

• Local level courts adjudicate criminal and civil
  cases of first instance. Excluded from
  jurisdiction are criminal cases carrying penalty
  of death or life imprisonment, as well as certain
  foreign civil cases.
• The courts can request that more important cases
  be transferred to a higher court.

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Special courts

• Special courts are courts set up in special
  departments for special cases wherever necessary.
  
• military courts to try cases involving crimes
  committed by servicemen
• maritime courts to try maritime or sea-shipping
  cases for the purpose of exercising judicial
  jurisdiction over maritime affairs.
• railway courts to try the following types of
  cases
• (1)Criminal cases investigated by railway
  public-security authorities and filed by railway
  prosecutors. (2)Cases involving economic disputes
  on railway transportation.

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The procuracy

• The court system is paralleled by a hierarchy of
  prosecuting organs called procuracy at the apex
  stands the Supreme People's Procuracy.
• The procuracy is a unique institution in Chinese
  law. It is equal to the court in its
  constitutional status.
• The procuracy performs multiple functions as an
  investigative, prosecutorial, supervisory, and
  judicial body.

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Organizational form of State Power

• The National People's Congress is the highest
  organ of state power.
• The NPC includes a Standing Committee that
  functions much as the NPC does when the NPC is
  not in session.
• The National People's Congress exercises the
  following functions and powers
• (1) To amend the Constitution
• (2) To supervise the enforcement of the
  Constitution
• (3) To enact and amend basic statutes concerning
  criminal offences, civil affairs, the state
  organs and other matters

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• (4) To elect the President and the Vice-President
  of the People's Republic of China
• (5) To decide on the choice of the Premier of the
  State Council upon nomination by the President,
  and to decide on the choice of the Vice-Premiers,
  State Councillors, Ministers in charge of
  Ministries or Commissions and the Auditor-General
  and the Secretary-General of the State Council
  upon nomination by the Premier
• (6) To elect the Chairman of the Central Military
  Commission and, upon his nomination, to decide on
  the choice of the other members of the Central
  Military Commission

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• (7) To elect the President of the Supreme
  People's Court
• (8) To elect the Procurator-General of the
  Supreme People's Procuratorate
• (9) To examine and approve the plan for national
  economic and social development and the reports
  on its implementation
• (10) To examine and approve the state budget and
  the report on its implementation

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• (11) To alter or annul inappropriate decisions of
  the Standing Committee of the National People's
  Congress
• (12) To approve the establishment of provinces,
  autonomous regions, and municipalities directly
  under the Central Government
• (13) To decide on the establishment of special
  administrative regions and the systems to be
  instituted there
• (14) To decide on questions of war and peace and
  
• (15) To exercise such other functions and powers
  as the highest organ of state power should
  exercise.

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Citizens Basic Rights and Obligations  
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Basic Rights

• In March 2004, an Amendment to the Constitution
  was adopted by the Second Session of the Tenth
  National People's Congress, which included the
  statement "the State respects and safeguards
  human rights" in the Constitution, thus ushering
  in a new chapter in the progress of China's human
  rights undertakings.

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• The Chinese Constitution comprehensively
  stipulates the citizens' basic rights and
  freedoms.
• Based on the Constitution, China has enacted a
  series of laws on the protection of human rights,
  and set up a relatively comprehensive legal
  system for the protection of human rights.

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The people's rights to subsistence and
development are guaranteed.

• China's Constitution focuses on realizing the
  people's rights to subsistence and development.
• two great historical leaps
• from being poverty-stricken to having enough food
  and clothing, and then to reaching the moderately
  well-off stage.
• China has successfully solved the problem of
  feeding 22 percent of the world's population with
  less than 10 percent of the world's arableland.

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Citizens' civil and political rights are
guaranteed.

• China's Constitution and law protect citizens'
  rights to freedom of religion, speech and press,
  and of association.
• Citizens' rights to property, reputation,
  personal name, honor, personal dignity and
  personal safety as well as the right to keep
  one's property from encroachment are also
  acknowledged and protected.
• China has set up and improved an open information
  system and other related systems to ensure that
  the citizens enjoy full democratic rights to
  information, supervision and participation in
  public affairs.

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People's economic, social and cultural rights are
guaranteed.

• Constitution and law protect citizens' rights to
  labor, rest, gender equality, equal pay for equal
  work for men and women, intellectual property,
  social security, receiving material aid and
  education, marriage and divorce, as well as the
  right to engage and participate in scientific
  research, literature, art and other cultural
  activities.

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The special groups of people, such as women, the
aged, minors and the disabled, are guaranteed.

• China has enacted
• the Law on the Protection of the Rights and
  Interests of Women,
• the Law on the Protection of the Rights and
  Interests of the Aged,
• the Law on the Protection of Minors
• the Law on the Protection of the Disabled

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The rights of the ethnic minorities are
guaranteed.

• China has 55 minorities
• Article 4 All ethnic groups in the People's
  Republic of China are equal.
• People of all ethnic minorities, like citizens of
  the Han ethnic group, enjoy all equal civil
  rights specified in the Constitution and laws,
  and participate in the management of state and
  local affairs on an equal basis.

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Preferential policies

• There are also wide-ranging preferential policies
  in place to promote social and economic
  developments for ethnic minorities, including
• preferential employments,
• political appointments,
• business loans.
• Universities typically have quota reserved for
  ethnic minorities despite having lower admission
  test scores
• Ethnic minorities are also exempt from the
  one-child policy which is aimed toward Han
  Chinese.

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• The state protects the lawful rights and
  interests of the minority ethnic groups and
  upholds and develops a relationship of equality,
  unity and mutual assistance among all of China's
  ethnic groups. Discrimination against and
  oppression of any ethnic group are prohibited
  any act that undermines the unity of the ethnic
  groups or instigates division is prohibited.
• The state assists minority ethnic groups in
  accelerating their economic and cultural
  development according to the characteristics and
  needs of the various minority ethnic groups.
• Regional autonomy is practiced in areas where
  people of minority ethnic groups live in compact
  communities in these areas organs of
  self-government are established to exercise the
  power of autonomy. All ethnic autonomous areas
  are integral parts of the People's Republic of
  China.
• All ethnic groups have the freedom to use and
  develop their own spoken and written languages
  and to preserve or reform their own folkways and
  customs.

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• The Chinese government pays serious attention to
  the positive role played by international
  conventions on human rights in promoting human
  rights.
• China has joined 21 international conventions on
  human rights, and has adopted a series of
  measures to fulfill its obligations as specified
  in those conventions.
• In October 1997, the Chinese government signed
  the International Covenant on Economic, Social
  and Cultural Rights. The Chinese government
  submitted its first report on the implementation
  of the Covenant to the United Nations in 2003 as
  scheduled.
• The Chinese government also signed the
  International Covenant on Civil and Political
  Rights in October 1998.

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Basic Obligations

• Safeguard the unification of the country and the
  all its nationalities
• Abide by the Constitution and the law, keep state
  secrets, protect public property, observe labor
  discipline and public order and respect social
  ethics
• Safeguard the security, honor and interests of
  the motherland and not commit any acts
  detrimental to the security, honor and interests
  of the motherland
• Defend the motherland and resist aggression
• Pay taxes.

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National Emblem and Flag