Chinese Constitutional & Administrative Law

Prof. Zhengxin Charlie HUO

May 2015

List of Abbreviations:
CPC: Communist Party of China
PRC: Peoples Republic of China
ROC: Republic of China
CPPCC: Chinese Peoples Political Consultative

Conference
NPC: National Peoples Congress
CMC: Central Military Commission
SPC : Supreme Peoples Court
SPP: Supreme Peoples procuratorate

Table of Contents
Chapter One

An Overview of the Constitutional Law in China

Chapter Two
Form of Government: The Peoples Congress System
Chapter Three
Structure and Operation of Administrative Authorities
Chapter Four
The Relationship between Central and Local Governments
Chapter Five
The Judicial Institution in China
Chapter Six
A Brief Introduction to Chinese Administrative Law

Chapter One
An Overview of the Constitutional Law in China
1.1 A Brief History of Chinese Constitution
1.1.1 Development before 1949

Constitutionalism in modern China dates back to the

late 19th century when a written Constitution was
perceived as a tool to save the late Qing Dynasty.
In 1911, the Qing Dynasty enacted the first written
constitution in China.
On February 12, 1912, Republic of China was
established, and Dr. Sun Yat-sen, the interim President,
promulgated the Interim Constitution after it was
approved by the Senate.

1.2.2 Development after 1949

(1) The Common Program of the CPPCC of 1949
This document is defined as the Interim Constitution of
P.R.C which did not incorporate socialism.
(2) The Constitution of 1954
Its most important function was to legitimize the
political target of socialist transformation.
(3) The Constitution of 1975
Its objective was to consolidate the so-called the great
achievements of the Cultural Revolution.
(4) The Constitution of 1978
Its purpose was to bring the state back on normal track.
(5) The Constitution of 1982

1.2 Fundamental Principles of Chinese

Constitutional Law
1.2.1 Introduction
There are two general categories of such
fundamental constitutional principles in China.
1.2.2 Four Cardinal Principles
(i) to keep to the socialist road,
(ii) to uphold the peoples democratic dictatorship,
(iii) leadership by the Communist Party,
(iv) Marxism-Leninism, Mao Zedong Thought,
Deng Xiaoping Theory, and the important
thought of Three Represents.

1.2.2.1 The Principle of Leadership by the

Communist Party
1.2.2.2 The Principle of Marxism-Leninism
and Mao Zedong Thought, Deng Xiaoping
Theory and the Important Thought of
Three Represents
1.2.2.3 The Principle of Peoples Democratic
Dictatorship
1.2.2.4 Principle of Adherence to Socialism

1.2.3 Other Fundamental Principles of

Chinese Constitutional Law
1.2.3.1 Sovereignty of the People
2.3.2 Rule of Law Principle
2.3.3 Equality of All Nationalities
2.3.4 Protection of Basic Human Rights

Chapter Two Form of Government:

The Peoples Congress System
2.1 Introduction
2.2 The Difference between the Peoples Congress
system and the Parliamentary System
2.3. The Organizational Structure of the peoples
Congress

2.3.1 The National Peoples Congress

NPC is the supreme organ of state power in
China. A total of 2,987 deputies were elected to
the current 12th NPC before it convened its
first session in March 2013.
2.3.2 Local Peoples Congress
Local peoples congresses at various levels are
local organs of state power.
2.4 The Functions of Peoples Congress
2.4.1 Legislative Power
2.4.1.1 National Legislatures

 First, the NPC has the power to amend the

Constitution.

Second, The NPC has the authority to enact and

amend basic laws pertaining to criminal offences,

civil affairs, state organs and other matters.

Third, The Standing Committee enacts and

amends all laws except laws that should be

enacted and amended by the NPC. When the
NPC is not in session, its Standing Committee
may partially supplement and amend laws it
enacted, provided that the changes do not
contravene the laws basic principles.

2.4.1.2 The Distribution of Central and Local

Legislative Authorities
the non-contradiction principle
2.4.2 Power of Appointment and Removal
2.4.3 Decision Making Authority
2.4.4 Supervision Authority

Chapter Three: Structure and Operation

of Administrative Authorities
3.1 Introduction
(1) The President of the PRC,
(2) The State Council,
(3) The Central Military Commission CMC

,
(4) The Supreme People's Court (SPC),
(5) The Supreme People's Procuratorate (SPP).

3.2 The Head of State President of the PRC

3.2.1 The Office of President under the 1982

Constitution
i. The Requirements
ii. The Authorities
3.3 The Central Military Commission

3.4 The State Council

3.4.1 The Legal Status of the State Council
3.4.2 Organization within the State Council

3.5 Authorities of the State Council

3.5.1 Legislative Authority
5.5.2 Other Authorities
Administrative Leadership Authority;
Administrative Supervision Authority;
Personnel Arrangement Authority.

Chapter Four The Relationship between

Central and Local Governments
4.1 Introduction
4.2 Varieties of Local Governments in China
(i) Provinces (22),
(ii.) Municipalities directly under the leadership

of the CPG(4);
(iii) Ethnic minority autonomous regions (5);
(iv) Special administrative regions (2);
(v) Taiwan

 22 Provinces: A standard provincial government is

nominally led by a provincial CPC committee,

headed by a CPC committee secretary. The
committee secretary is first-in-charge of the
province, come in second is the governor of the
provincial government.
5 Autonomous regions: A minority subject which
has a higher population of a particular minority
ethnic group along with its own local government,
but an autonomous region theoretically has more
legislative rights than in actual practice. The
governor of the Autonomous Regions is usually
appointed from the respective minority ethnic group.

 4 Municipalities: A higher level of city which is directly

under the Chinese government, with status equal to that

of the provinces. In practice, their political status are
higher than common provinces.
2 Special administrative regions (SARs): A highly
autonomous and self-governing subnational subject of
the People's Republic of China. Each SAR has a
provincial levelchief executive as head of the region and
head of government. The SAR's government is not fully
independent, as foreign policy and military defence are
the responsibility of the central government, according
to the Basic Laws of the two SARs.

 1 Claimed province: The People's Republic of

China claims the island of Taiwan and its

surrounding islands. The territory is controlled
by the Republic of China (ROC, commonly
called "Taiwan").

4.3 The Development of Central-Local

Relationship in China
4.3.1 The Period from 1949-1954
4.3.2 The Period from 1954-1978
4.3.3 The Period from 1978-present

4.4 Examination of the Three Kinds of Central-Local

Relationships
4.4.1 Relationship between the Central Government and
Ordinary Provinces and Municipalities
That stage has been described as the stage of division of
powers between the central government and local
governments through administrative means.

4.4.2 The Relationship between the Central

Government and the Five Ethnic Minority
Autonomous Regions
Law of PRC on Regional National Autonomy 1984
First, on the principle of not contravening the

Constitution and the laws, the organs of self-government

of national autonomous areas shall have the power to
adopt special policies and flexible measures in the light of
local conditions to speed up the economic and cultural
development of these areas.

Second,

the organs of self-government of national

autonomous areas shall guarantee the freedom of the
nationalities in these areas to use and develop their own
spoken and written languages and their freedom to
preserve or reform their own folkways and customs.

 Third, The organs of self-government of national

autonomous areas shall guarantee the freedom of

religious belief to citizens of the various nationalities.

Fourth,

they enjoy autonomous authority in the

administration of local finance.

Fifth, if a resolution, decision, order or instruction of a

state organ at a higher level does not suit the conditions

in a national autonomous area, the organ of selfgovernment of the area may either implement it with
certain alterations or cease implementing it after
reporting to and receiving the approval of the state
organ at a higher level.
In practice, the five regions receive a more advantageous
status in economic field, while in political and legal areas,
they are also controlled tightly by the Central Government.

4.4.3 Relationship between the Central

Government and the SARs
Pursuant to the two basic laws, the two SARS
really enjoy a high degree of autonomy in almost
every area except two: foreign affairs and
national defence.

Chapter Five The Judicial Institution in

China
5.1 The Legal Status of the Peoples Courts and

Peoples Procuratorates
5.2 The Peoples Courts

5.2.1 The Fundamentals of China's Judicial System

5.2.1.1 Open Trials
5.2.1.2. Defense System
5.2.1.3. Second Instance Being Final
5.2.1.4. System of Collegial Panels
5.2.1.5. System for Verification of Death Penalty

Cases

5.3 The Peoples Procuratorate

5.3.1 The Status and Nature of the Peoples
Procuratorate
The Peoples Procuratorates are the State's
organs for legal supervision that exercise the
power of prosecution.

5.3.2 Functions of Procuratorates

5.3.2.1 Investigation Function
(1) crimes of embezzlement and bribery;
(2) crimes of dereliction of duty;
(3) crimes in violation of citizens personal and
democratic rights.
5.3.2.2 Prosecution Function
In comparison with the function of investigation,
prosecution is the main function of peoples
procuratorates.
5.3.2.3 Supervision Function
5.3.2.4 The Limits of Peoples Procuratorate

Chapter Six A Brief Introduction to Chinese

Administrative Law
6.1 What is Administrative Law?
Administrative law is a separate area of law
that deals with government bodies engaging in
administration, that is, public work and
management and the provision of public
services.

6.2 Major Chinese Administrative Laws

(1) Administrative Litigation Law (1990)

For the first time in the history of China, the citizen is given
the right to sue the government if his/her legal interest is
harmed by a narrowly defined category of official actions.
(2) Administrative Reconsideration Law(1999)
It provides an alternative remedy for the private party to
challenge the government, by asking a government of a
higher level to re-considerate the administrative act by a
lower-level government.
(3) State Compensation Law(1994, revised in 2010)
It provides a more systematic framework for citizens
obtaining compensation for harms and injuries suffered
from the administrative activities or criminal investigation.

Concluding Remarks
The past three decades have witnessed an amazing

acceleration in the rate of, and significant progress

in the quality of, legislation in China.
Nevertheless, there is a long way to go towards
accomplishing the task of building a modern legal
system.

Thanks!