M5 T2 The Chinese Legal system 2 Flashcards
Which element has been essential in modernising and liberalising the People’s Republic of China?
The Chinese legal system
What is the Chinese legal system a spectacular example of?
legal progress
What is the source of law in China?
Law
Are Case law and custom and usage sources of Chinese law?
No
What are the three factors that supplement the theory on Law as the sole source of the Chinese legal system?
- The social norms.
Most regulations on social society appear from social life. - Conflicts are usually settled by mediators whom have no knowledge of the formal system of laws.
- Legislation and norms of customs and usage are heterogeneous due to size of the country and the population
What is the hierarchy of laws?
- Constitution
- Laws
- Regulations from the state council
- Local regulations
Which bodies can create legislation?
- National People’s congress: fundamental laws
- Permanent committee of the National congress
- State Council: create regulations to apply law passed by the two former bodies.
When is a law considered a Fundamental law?
When it affects the whole society
- Criminal offenses
- Civil matters
- organisation of the state
- Organisation of the national economy(2000)
What impacts the independence of the judicial power?
The way that the political regime of China is structured. Judges can not evaluate the constitutional validity of legislation.
Only the supreme court can interpret legislation in the context of a specific legal procedure.
In china
Who creates law?
Who interprets law`
The National Congress, the Permanent Committee, and the State Council do both.
The Supreme court can in some cases interpret legislation.
Even though case law is banned as a legal source, how is it used in the legal system?
The Supreme Court publishes in its gazettes those judicial decisions it sees as the best sources for practice or education.
What are the two forms of relationships according to Confusion thinking
- The immediate circle, governed by the cosmic order
2. Relationships with strangers. grant favours and ask for favours back. Loyalty.
Which power is established in the constitution as the single, supreme, institution, and which have been added by amendments to the constitution?
The National congress as the supreme institution.
The Permanent committee of the Congress and the State Council have been added.
Which three offices does the Head of state hold?
- President of the Republic
- Secretary of the General Committee of the Communist Party
- Chairmanship of the Central Military commission.
What is a fundamental characteristic of the Chinese judicial system?
The absence of independence
Who are the Chinese judges, and what are their tasks.
They are state officials.
Apply laws and regulations issued by the state apparatus
How is the judicial system structured?
- The People’s Supreme Court
- 1 The Local People’s Court
- Basic
- Intermediate
- High - 2 The Special Courts
- Military
- Maritime
- Railway
What is an important competency of the jurists in China?
To offer a personal link between the client and the judge or another official person whom can influence the outcome of the case.
This due to the importance of social norms and less importance given to legal reasoning
Which two means of access were given to the legal profession by the Lawyer’s statute in 1996?
- Passing a national judicial exam and undergo two years of practical training
- Obtain a university degree in law and practising a legal profession.
Are legal practices private or owned by the state?
After 2002, only private legal practices may be set up as the state no longer finances lawyer’s offices.
Where is most legal activity concentrated?
Beijing and Shanghai
What represents Chinese lawyers and regulates the profession?
All China Lawyers Association
Can foreign lawyers open an office in China?
Yes, under certain conditions
Which group of inferior status can also be considered juridical practitioners?
Legal workers. They can however not represent in court. This is open to all.
What are the characteristics of a judge in China?
They do not hold a high status, and had traditionally only a general knowledge of law as they where appointed from among the ranks of politicians.
Which two conditions were introduced in 2001 for those who aspire to become judges?
- A university degree, not necessarily a law degree
2. Pass a national judicial exam
