This article written by Stanley Lubman, a long-time specialist on Chinese law and Resident Lecturer at the University of California, Berkeley, School of Law highlights some of the challenges that the PRC faces if avowed aim of ?ruling the country by law? is to be realized.
Lubman writes:
What remains in doubt is the depth of the commitment of the current Chinese leadership to further develop key institutions, and whether Chinese society will be stable enough to nourish those institutions.
From 1949 to 1965, law was simply an instrument of policy; during the Cultural Revolution (1966-1976) courts were brushed aside, law schools closed, and adherence to law denounced as a bourgeois enemy of revolution. The economic reform that began in 1979 became an engine for legal reform. A fundamental new orientation toward governing China emerged, in which formal legislation has become the major framework for the organization and operation of the Chinese government. Illustratively, legislation has been used to frame commercial activity; to express policies of state macroeconomic control and their implementation; to give legal recognition to new rights and interests; and to create a framework for direct foreign investment. Constitutional amendments in recent years have at least formally expanded the rights of the Chinese people.
The courts and the bar have been reconstructed. Formerly scorned as ?rightist? institutions at the end of the 1950s and as ?bourgeois? during the Cultural Revolution, the courts have been rebuilt in a four-level hierarchy. They are increasingly being used as the forums in which rights created by legislation are asserted by citizens against each other and, to some extent, against state agencies. The courts, however, are not independent and are run like any other government hierarchy. Also, some cases are deemed politically sensitive and decided by Party organs, in some criminal cases defendants have been unlawfully tortured, and cases in which outcomes are influenced by local business or government interests continue to abound. Corruption, too, remains a serious problem.
The quality of judges has been increasing, especially in the higher courts and in coastal cities, although professionalization of the judiciary has been slow and uneven. Reforms in civil procedure are being addressed , albeit slowly. At the same time, popular dissatisfaction with the courts is reflected in increasing complaints to Letters and Visits Bureaus and petitions to local and national legislative bodies and local governments?which are often repressed. Enforcement of judgments is a frequent problem.
Read the full article at 😕 http://www.eastasiaforum.org/2009/10/02/chinese-law-after-sixty-years/
