Challenges to Chinas Governance

Challenges to chinawargons GovernanceWong Regan Wing KwanUnderstanding chinawares GovernanceChallenges and ProspectsHave sub judice reforms implemented so far limited the despotic subroutine of official power, promoted the freedom of the judicature and promoted the rule of law in chinawareIntroductionOver the years, changes have constantly been made to the intelligent outline of China. Despite the massive changes in the legal system of China, the modern phylogenesis of the Chinese legal system had non been write downed until about 30 years ago. The fundamental law of an entirely new legal system in China is particular special and interesting because China undergoes dramatic sociological, economic and cultural changes along with the legal reform.In this essay I am going to discuss whether the reform of the legal system has achieved its important goals to restrict the unauthorized use of official power, to advance the independence of judiciary, and ultimately, the promo tion of the rule of law in the country. I will first talk about the background of Chinas legal system. therefore I am going to describe the changes that have been made to Chinas legal system. Last but not least, I will shout out and discuss whether the reforms have preceded their main goals.Background of Chinas legal systemTraditional Chinese justiceThis is the starting point of the historic knowledge of the legal system of China. Being practiced and in forced by the Chinese Empire1, the Traditional Chinese integrity mainly dealt with the regulation of the presidency and the reading if natural economy, with no protection of rights involved. The law lasted until the 19th century because it could not cope with the economic development at that period, especially when the western capitalist culture was influencing China at that period.Acceptance of Foreign LawThis is a reform which was done by the Qing Dynasty in the late 19th century and early twentieth century. The reform aime d to meet the requirements of development at the international level and to cope with the national economy. Unfortunately, the resign of the last emperor of China in 19122 led China to its long period of civil wars. During this long period, the political system and the legal system of China were both delicate and erratic. China was so unstable at that time that it was impossible for them to establish a legal system.Socialist Legal systemThe in perceptual constancy of Chinas legal and political system kept up(p) for a long period until 1949, when Mao Zedong Proclaimed the Peoples Republic of China (PRC). A sociableist legal system was implemented at that time3, which was based on Maxist Leninist ideas. Maxist Leninist ideas refer to the conversion of a country to a socialist republic. And this conversion must(prenominal) be led by a throng of conductors that are professional revolutionaries4. This new legal system has several characteristics including the fact that the regulation of economy requires little need for the body of law. Nonetheless, this development phase did not last long because of political changes the Cultural Revolution.Democratic institutionalization and legalization in 1978In 1978, China has started to establish a modern legal system. The Chinese communistic troupe (CCP) opened a platform for democratic institutionalization and legalization at the 3rd Plenum of the 11th Central committee5. Deng Xiaopings goal was to seek for continuity and stability of the law and the system. However, because Deng took an experimental approach for this reform, the reform created a lot of error systems and laws.Major reformsChanges in the law making bodiesThere has been an increase of transparency and bareness in the law making bodies. Two major law making bodies in China are National Peoples Congress (NPC) and local anesthetic Peoples Congress (PCs). Both law making bodies have increased their transparency gradually over the years, and they become mor e than open to the public. For instance, they start releasing drafts of laws, and start providing public participation and hearings.1982 systemal Reform6In total the Chinese Constitution had been amended for 4 times. A new version of Constitution was adopted in 1982. One of the major changes is that the party discover of China is replaced by party leadership. The new constitution also emphasizes on the sanctity and union of the socialist legal system. This Proclaims that the constitution and the law are above any individual, organization or even political party.Legislative reformsIn addition to the total reforms, there have also been changes in lawmaking over the years. Lawmaking has shifted its focus from enhancing the states economy to addressing social issues, including the provision of transparency and social fairness. The shift is made because Chinas leadership understand that except from the delivery of rapid economic growth, assuring fairness and harmony in the parliamen tary procedure also plays a vital role in order to ensure the legitimacy of Chinas one-party rule. Thus, more laws on welfare, social shelter and health insurance etc. are included in more recent NPC legislative plans.The major reforms include administrative Litigation Law (1989) which was considered as revolutionary because it was the first time that the citizen were allowed to challenge the government by using the court system State compensation Law (1994) which allow citizen to sue the government Administrative reconsideration Law (1999) which allow the request for review for any government action Administrative Penalties Law (1996) which granted procedural rights for the public and Administrative Licensing Law (2003) which limits corruption7.Court ReformThere are also reforms of the judiciary system. The Supreme Peoples Court (SPC) had its first plan for the reform of the judiciary system in the 90s. The aims of the reform were straight forward. They aim to improve the quality of judges by training addressing the problem of corruption and so as to evoke the potency of system and to inspect the judges. The reforms are designed to improve both the professionalism of court system and the competence of judges. In order to achieve the goals, new rules are implemented. For example, all of the new judges have to pass the national unified judicial exam which has a passing rate of less than 10 percent8. This ensures the competency of the judges. Moreover, there is an emphasis on legal and logical reasoning in courts. Opinions should also be according to facts. The reform allow public to engage more confidence to the courts and help resisting corruption and interference.The incur of Law and Judiciary Independence in ChinaRule of Law by definition is the constriction of the arbitrary use of power by laws9. In order for the Rule of Law to work, the government must be under the control by law. Also, the law must be enforced by an independent body the courts. The co urts thus act as a mediator between the government and the citizen.However in my prospect in Chinas case, due to its one-party control, the communist party controls the government and involves in all of the governmental affairs. This may include the formulation of command policies, judicial affairs and the determination of appointments to official posts. The lack of independence between the government and the party suggests that the rule of law has not been promoted by Chinas legal reform.In addition, both the NPC and the PC are basically under the control of CCP, the lack of independence of the NPC and the PC restricts the rule of law by a lot because the PC and the NPC are the law making bodies in the country. The CCP can get involved in the law making process, so it controls the law that regulates the country. In addition, there are many laws being drafted by local or central government. The laws drafted may provide interests to the region or the department instead of providing everyday interest for the public.CCP also indirectly controls the court due to its control over the PCs. For example, the judiciary is not entirely separated from PCs because judges are appointed and stipendiary by PCs. This may cause political interference by local parties and ultimately causing local protection. The lack of independence between the court and CCP once more shows that the rule of law cannot be applied on China.Furthermore, the constitutional and legal status of the CCP is still unclear. It is still unclear whether the constitution determines CCPs legitimacy or the CCP determines the legitimacy of the constitution. It is also unclear that whether the party is above the law.Moreover, the enforcement of law has been a challenge to the promotion of the rule of law in China. In addition to the independence between the law enforcing body and the government, it is necessary for the law of the country to be legitimate and to be enforceable. Or else, the rule of law will not work. receivable to the weak and inferior punishment and penalty for the people who disobeyed court orders, the law becomes hard to be enforced in China.Rebuttal Socialist Rule of Law TheoryWhile all of the information above showed us that the legal reform has not promoted the rule of law in China, some people suggest the Socialist Rule of Law Theory, suggesting that instead of the promotion of rule of law, the legal reforms of China promoted Socialist Rule of Law. They separate the Rule of Law from the Socialist Rule of Law.The Socialist Rule of Law advocates that in order to achieve a harmonious society, the legal system must hunt the leadership of the party. According to the vice-president of the SPC, China needs to prevent the negative influence of Western rule of law theory (Cao, 2006)10 and this is based on two main arguments.Firstly, they think that the application of the rules should not be rigid. Under the rapid economic and social growth, the law often slows down th e progress of development and reforms in China. So they believe that the Western rule of law theory does not work on maturation countries like China, or else the development of the state would be truly slow. Laws can also be seemed as an obstacle to progress.Secondly, they think that it is acceptable to breach the constitution if they are favorable for Chinas interest or if they are good for the states productivity and stability. For instance, private enterprises operated before they were permitted by the constitutional amendment in 198811. This suggests that the constitution could also be an obstacle to development or reform.ConclusionChinas one party control shows that despite of the legal reform that have been done over the years, the Western mode rule of law has not been promoted. This is mainly due to the control of the court, the government and the law making bodies of the country. It is also unclear that whether the constitution is above the CCP or not. The control of the organization above makes CCP above the law and possibly the constitution, which makes the idea of rule of law not applicable on China.However, some people advocate that the legal reform of China has promoted the Socialist Rule of law, which states that in order to achieve a harmonious society, the legal system must go on the leadership of the party. It is arguable that whether the Socialist Rule of Law fits China more than the Western style Rule of Law due to its rapidly developing economy and infrastructure.Word Count (Without headings) 1795BibliographyBehr, Volker. Development of a New Legal system of rules in the Peoples Republic of China. Volume 67. Number 4. summer 2007Cavendish, Richard. Pu Yi, Last emperor of China, is pardoned, History today. Volume 59, number 12. Retrieved April 21, 2014, from http//www.historytoday.com/richard-cavendish/pu-yi-last-emperor-china-pardoned Thrower, James. Marxist-Leninist Scientific Atheism. Walter de Gruyter Co. . 1983Horsley, Jamie. The Rule of Law Pushing the Limits of Party Rule. In China Today, China Tomorrow Domestic Politics, Economy, and Society, ed. Joseph Fewsmith, pp. 51-70.Lanham, Md. Rowman Littlefield, 2010,ch. 3.Liebman, L. Benjamin. Chinas courts Restricted reform. Paper number 08-180. Columbia Law School.HK government, (2014) The rule of Law, Retrieved April 21, 2014, from http//www.info.gov.hk/info/sar5/elaw_1.htm Chen, H.Y. Albert. Toward a legal enlightenment Discussion in contemporary China on the Rule of Law. P.13- 541 Behr, Volker. Development of a New Legal System in the Peoples Republic of China. Volume 67. Number 4. Summer 20072 Cavendish, Richard. Pu Yi, Last emperor of China, is pardoned, History today. Volume 59, number 12. Retrieved April 21, 2014, from http//www.historytoday.com/richard-cavendish/pu-yi-last-emperor-china-pardoned 3 Behr, Volker. Development of a New Legal System in the Peoples Republic of China. Volume 67. Number 4. Summer 20074 Thrower, James. Marxist-Leninist Scien tific Atheism. Walter de Gruyter Co. . 19835 Horsley, Jamie. The Rule of Law Pushing the Limits of Party Rule. In China Today, China Tomorrow Domestic Politics, Economy, and Society, ed. Joseph Fewsmith, pp. 51-70.Lanham, Md. Rowman Littlefield, 2010,ch. 3.6 Liebman, L. Benjamin. Chinas courts Restricted reform. Paper number 08-180. Columbia Law School.7 Horsley, Jamie. The Rule of Law Pushing the Limits of Party Rule. In China Today, China Tomorrow Domestic Politics, Economy, and Society, ed. Joseph Fewsmith, pp. 51-70.Lanham, Md. Rowman Littlefield, 2010,ch. 3.8 Liebman, L. Benjamin. Chinas courts Restricted reform. Paper number 08-180. Columbia Law School.9 HK government, (2014) The rule of Law, Retrieved April 21, 2014, from http//www.info.gov.hk/info/sar5/elaw_1.htm 10 Liebman, L. Benjamin. Chinas courts Restricted reform. Paper number 08-180. Columbia Law School.11 Chen, H.Y. Albert. Toward a legal enlightenment Discussion in contemporary China on the Rule of Law. P.13- 54