A. Socialism

Theoretically, the concept of socialism has its intellectual roots back in ancient Greek times. The term was originally used to describe a type of collective society. During the Industrial Revolution in the late eighteenth century, the socialist system emerged as an alternative to the expanding capitalist system, with an emphasis on public ownership of the means of production. Karl Marx, known as the founding father of communism, infused socialist ideology with the theory of classes.Footnote ¹⁸

According to Marx, society was made up of classes, and when certain classes controlled the means of production, they used it to exploit the vast working class. It was Marx’s belief that socialism could only be established through a revolution of class struggle so as to make public the ownership of the means of production. Marxist socialism was introduced to, and practiced in, the former Soviet Union and the socialist bloc through the work of Vladimir Lenin.Footnote ¹⁹

In China, ever since 1954, when the first socialist constitution was adopted, Marxism-Leninism has been the ruling orthodoxy that governs the country. Mao himself was very keen on Marx’s thoughts of the revolutionary clash between capital and labor and made it his top priority to carry on the torch of class struggle. After Mao’s death, China abandoned the notion of class struggle and refined the socialist course for the nation.

In the late 1950s, facing serious backlash to the “Great Leap Forward” campaign, Mao realized that the development of a socialist system in China would need to take place in two stages: a preliminary stage and a developed stage.Footnote ²⁰ In the preliminary stage, the primary goal of the state had to deal with poverty and economic development. This idea, however, was soon superseded by Mao’s zeal for continuing revolution. Not until the economic reforms that took place in the late 1970s did the country’s focus begin to turn from the continuing revolution to the development of the economy.

In 1981, the Chinese government restated the concept of a preliminary stage of socialism and for the first time explicitly set it as the basic tone for the country.Footnote ²¹ Six years later, in 1987, the theory of the primary stage of socialism was further elaborated to include “one center and two adherences.”Footnote ²² As the nation’s development strategy, one center means a focus on economic construction, while the two adherences refers to adherence to the opening-up policy and adherence to the so-called four basic principles.Footnote ²³

Thus, the basic notion underlying Chinese characteristics is that China is a socialist country and the Chinese socialist system is at the preliminary stage. The preliminary stage of socialism approach not only prompts the need for an opening-door policy but also justifies the adoption of a market economy – a core element of capitalism – and incorporates it into the socialist system. Under this approach, the principal contradiction in Chinese society was described for years as the contradiction between the people’s growing material and cultural needs and backward social production.

In 2017, in his report to the 19th National Congress of the CPC, Xi Jinping redefined the principal contradiction as the contradiction between unbalanced and inadequate development and the people’s ever-growing needs for a better life.Footnote ²⁴ According to Xi, the evolution of the principal contradiction represents a historic shift that affects the whole landscape and creates many new demands.Footnote ²⁵ On that basis, the reform and economic development lying ahead in the country were tailored to suit the need for establishing and improving a mature and vibrant market economy under a socialist system.

In comparison with legal systems elsewhere, the socialist legal system with Chinese characteristics has several distinctive features. First, despite its socialist nature, the contemporary legal system of China remains within the family of civil law both in its roots of development and in its legislative and juristic pattern.Footnote ²⁶ Thus, the socialist legal system with Chinese characteristics can be described as a civil law system governed by socialist ideology, along with Chinese tradition and reality. Second, as far as the legal system is concerned, Chinese characteristics contain the nation’s ancient heritage, represented mainly by Confucian ethos. Third, the development of law and legal system in China has been, and remains to be influenced by the country’s reception of foreign law as a reference in both legislation and the application of law.Footnote ²⁷

B. Leadership of the CPC

But the most striking aspect of Chinese characteristics is the supremacy of the CPC’s leadership. Under the Chinese 1982 Constitution,

Unlike any political party elsewhere, the Communist Party is the single and only ruling party in China that actually possesses all powers of the nation, including the military.Footnote ²⁹

Under article 1 of the 1982 Constitution, the socialist system is the basic system of China. Article 1 also makes it imperative that disruption of the socialist system by any organization or individual is prohibited.Footnote ³⁰ In 2018, the 1982 Constitution was amended for the fifth time. The 2018 amendment modified article 1 of the 1982 Constitution by adding a new provision that the defining feature of socialism with Chinese characteristics is the leadership of the CPC.Footnote ³¹ The 2018 amendment further underscores the constitutional basis for the CPC’s leadership.

Also in the 2018 amendment was the abrogation of term limits for the presidency of the country, a position now held by the chairperson of the CPC. The repeal of presidential term limits is widely considered a huge setback from the political reform that has been sought in the country for decades.Footnote ³² In the eyes of foreign observers, this change heralds an end to the era of collective leadership and sets the stage for a return to individual autocracy.Footnote ³³

In the process of legislation, the CPC’s leadership is dominant. First, it is an unpublished but unyielding principle that all draft major laws of national importance must be examined and approved by the Central Committee of the CPC before they may be reviewed by the NPC.Footnote ³⁴ This principle was explicitly stated in a 1991 internally circulated official document of the Central Committee of the CPC.Footnote ³⁵ Although the document limited the application of this principle to important laws primarily in political, economic, and administrative areas, virtually all laws passed by the NPC were pre-reviewed and approved by the Central Committee of the CPC.

The adoption of amendments to the 1982 Constitution is typical to help better explain the role of the CPC in the nation’s legislation. Take the 2004 amendment, for example. On December 12, 2003, the Central Committee of the CPC made a proposal to the Standing Committee of the NPC to amend the 1982 Constitution. An important amendment in the proposal, among others, was to add former President Jiang Zemin’s idea of “Three Represents” to the Constitution in line with Marxism-Leninism, Mao Zedong Thought, and Deng Xiaoping Theory as the governing ideology of the country.Footnote ³⁶

This proposal met widespread criticism, especially from legal scholars, because they believed that the “Three Represents” was no more than a norm guiding the Communist Party itself as well as its members, and therefore should not be provided in the Constitution that governs the country as a whole. Some also pointed out that the use of abbreviations in the Constitution would cause confusion and also set a bad precedent of legal vagueness.

But all the criticisms were ignored. The NPC at its national session in March 2004 adopted the CPC’s proposal without changing a single word. Among the 2,903 delegates present, 2,863 voted for, 10 voted against, and 17 abstained. Interestingly, the vote as to the several amended articles was taken on an “all or nothing” basis. This voting pattern in fact left many delegates with no choice but to take the whole package because they disagreed with the provision of “Three Represents” but did not want to lose other provisions in the amendment (e.g., protection of private property and safeguarding of human rights).

The 2018 amendment is another example. As noted, the 2018 amendment was very controversial for its removal of the presidential term limits from the Constitution. When the amendment proposal was introduced by the CPC, it met criticism from the public, the legal community, in particular because of the concern that the scrapping of the term limits would reverse the gear of reforms in the country. But in order to justify the CPC’s claim that they were making the move in response to popular demand, all criticisms of the move were filtered out via state censorship, mostly on the Internet. As a result, the only information available to the public was the official statement that the amendment had won support from both inside and outside the CPC and its historic significance was to ensure the prosperity and lasting security of the country.

Second, it has become a political norm that in addition to the constitutional mandate, leadership of the CPC must also be provided in particular laws. The requirement of a “party leadership clause” in legislation came after the 18th National Congress of the CPC, which called for the political construction of the CPC in 2012.Footnote ³⁷ During recent years, the Standing Committee of the NPC in its annual legislative work plans explicitly held that the leadership of the CPC clause is an indispensable part of laws and regulations. In its 2022 Legislative Work Plan, for example, the Standing Committee of the NPC stated it as the “highest political principle” to “unswervingly uphold the CPC’s overall leadership in legislative work,” “resolutely implement the Party Central Committee’s major decisions and arrangements,” and “make the CPC’s ideas become the will of the country through legislation.”Footnote ³⁸

The CPC’s leadership clause is provided in laws and regulations in three different formats: (a) a general expression of the CPC’s leadership to the effect that the party leads certain specific work; (b) a stipulation that the party instrumentality, alone or jointly with administrative agencies, takes charge of certain legal responsibilities; and (c) a provision that makes support for the CPC’s leadership a legal obligation and criterion for working in public offices.Footnote ³⁹ For any major national legislative matters determined by the CPC Central Committee, the Standing Committee of the NPC is required to promptly seek instructions from and report to the CPC Central Committee during the entire legislative process.Footnote ⁴⁰

C. Public Ownership

In China, public ownership is considered the core of socialism and viewed as the crown jewel of the country’s economic system. The nation’s economy is currently structured with public ownership as the main body, with a common development of multiple ownerships. Under this economic structure, there is an established distribution system in which distribution is mainly made according to work, while multiple distribution methods coexist.

In the Chinese economy, there are two basic forms of public ownership: whole people ownership and collective ownership. Article 6 of the 1982 Constitution (as amended) explicitly provides that the basis of the socialist economic system of the PRC is socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by working people.Footnote ⁴¹ Article 7 further defines the whole people ownership economy as the state-owned economy and categorizes it as a leading force in the economy of the nation.Footnote ⁴²

Collective ownership refers to public ownership in rural areas. Under article 8 of the 1982 Constitution (as amended), collective ownership by working people includes all forms of cooperative economy in rural areas, such as producers’ supply and marketing, credit, and consumers’ cooperatives.Footnote ⁴³ Pursuant to article 8, rural collective economic organizations shall run under a dual operation system that combines centralized operation with decentralized operation by households under a contract.Footnote ⁴⁴

For many decades until 1988, public ownership was the only legally recognized and protected ownership in China. Conceptually, for quite a long period of time, especially in Mao’s era, socialism was interpreted and understood in China as a system that should not tolerate private ownership. It was in part affected by Lenin’s proposition, translated from Russian into Chinese, which was taken as a biblical tenet: that “we do not recognize private law,”Footnote ⁴⁵ meaning that everything in the economy must be in the public’s hands. The non-recognition of private ownership also came from Mao’s revolutionary doctrine that private ownership was the source of all evils and that the ultimate goal of the Communist Party was to eliminate it.Footnote ⁴⁶

The attitude toward private ownership in China changed after the economic reform that started in 1978. But the official recognition of private ownership in the nation was ten years later in 1988, when the 1982 Constitution was amended.Footnote ⁴⁷ The 1988 Amendment, however, did not use the term private ownership but rather the term “private sector of the economy.” And further, according to article 11 of the 1982 Constitution as amended in 1988, the private sector of the economy was only deemed “a complement to the socialist public economy.”Footnote ⁴⁸ In the 1999 Amendment, the private sector of the economy was escalated to “an important part of the socialist market economy.”

As noted, the current economy in China is labeled as a socialist market economy – an economy that is purposed to follow market rules but maintain its socialist nature. The concept of a socialist market economy was formally adopted in China in the 1993 amendments to the 1982 Constitution. It marked the country’s official departure from a planned economy. Although the term socialist market economy was never clearly defined, a general understanding in China is that the adoption of a socialist market economy in China will by no means affect the leading status of public ownership in the nation’s economy. It is an economy in which diverse forms of ownership coexist and develop while public ownership remains the mainstay.

Therefore, it is impossible to describe the socialist legal system with Chinese characteristics in China without addressing the role of the CPC and public ownership.

Both the leadership of the CPC and the dominance of public ownership constitute the main themes of present Chinese society and the legal system, and also determine the trend of future development. On the other hand, the formation of a socialist legal system with Chinese characteristics provides legal assurance of the legitimacy of the CPC’s sole leadership and the controlling status of public ownership.

China’s vast economic reform in past decades has changed the country dramatically. As noted, with its fast economic growth, China has now become the second-largest economy in the world. Along with economic development, however, there is a growing demand in the country for political reform, reform in response to public outcry for social equity and justice, and for legal safeguards against government corruption and abuse of power.

In pursuing political reform, the state seems to have taken a stance of strong commitment on the surface. At the top level of the CPC, political reform has become a frequent topic of the working agenda. But as far as the substance of political reform, words seem to be much more powerful than actions. It has been highly questionable where political reform should lead. A question frequently asked is how far political reform may go. Realistically, there are so many minefields in making reform politically, and the mobility to step forward is extremely limited in almost all politically sensitive areas, particularly when the issue comes directly to the controlling power of the CPC.

The development of the rule of law in the country is a good example. The issue was actually raised as early as the beginning of the economic reform in 1978,Footnote ⁴⁹ but not until 1999 did China formally make it a constitutional mandate that China governs the country according to, and builds a socialist country ruled, by law.Footnote ⁵⁰ Although it is now acclaimed that the rule of law in China has been established, such establishment is by and large still at the stage of enactment of laws, and the trends set in motion in terms of exercising the rule of law in both legislation and enforcement remain quite winding. In addition, there are certain areas, categorized as politically sensitive, that stay untouchable.

Nevertheless, in the course of development of the socialist legal system with Chinese characteristics, there has been judicial reform undertaken by the SPC, the highest judicial body of the nation. Unlike the general political reform that requires extensive institutional and structural changes in the government, and even in the ruling party, judicial reform is narrowly circumscribed to the judicial system. It might be true that political reform and judicial reform can hardly be separated, especially when judicial independence is at issue. But judicial reform, as many expect in the country, could take place on a manageable scale and scope.

A. Reform Plans

In 1999, the SPC issued the first “five-year” outline for judicial reform. Since then, the SPC has updated its reform plan every five years. The latest one was the sixth “five-year” reform outline, which was adopted in February 2024 to cover the period from 2024 to 2029. But again, the reforms may only be made without diminishing the leadership of the CPC. In 2014, the CPC issued the Decision on Several Important Issues Concerning the Comprehensive Promotion of Governing the Country by Law, making it imperative to persist in the leadership of the CPC.Footnote ⁵³

According to the 2014 Decision, the leadership of the CPC “is the most essential trait of Socialism with Chinese characteristics and is the most fundamental guarantee for Socialist rule of law.”Footnote ⁵⁴ The 2014 Decision further stresses that letting the CPC leadership “penetrate into the entire process and all aspects of ruling the country to the law is a basic experience of the construction of our country’s Socialist rule of law.”Footnote ⁵⁵

Under this condition, the 2014 Decision calls for continuing judicial reform to improve the judicial system.Footnote ⁵⁶

B. Changes

The past two decades of judicial reform have brought notable changes to the Chinese judiciary, and most of the changes have resulted from efforts made by the courts to pursue juridical justice and transparency. One major change resulting from the judicial reform is a shift of trial method from the traditional approach of the court ex officio to the mechanism of enhancing the role of the parties, particularly in civil cases. As early as 1998, the SPC issued the Several Rules on the Matters Concerning Reform of Civil and Economic Trial Methods, where the SPC specifically addressed such issues as (a) burden of proof of the parties, (b) fair trials, (c) improvement of court proceedings, and (d) evidence examination and determination. Those issues then became the major contents of the judicial reform contained in the 1999 “five-year” reform guidelines.Footnote ⁵⁷

The outcomes of the reform on trial methods are twofold. On the one hand, it introduced into the Chinese trial system a principle of “whoever makes a claim bears the burden of proof.” The principle is purposed to impose the burden on the parties instead of the courts to produce evidence. Under this principle, a party who fails or is unable to present evidence will lose on the claim. The court is charged with a minimum burden of collecting evidence and will only do so on an as-needed basis.

On the other hand, the reform places the focus of the trial on the process of the court hearing. In the past, the court would need to make a pre-trial investigation for the purpose of gathering information on the case and collecting evidence. Under the reformed trial methods, the investigation will mainly be conducted during the trial and the determination of the facts will be made on the evidence provided by the parties through a “cross-examination” in the hearing. An advantage of this method is to avoid possible bias the judge may have before the trial.

Another change relates to the establishment of the so-called judicial accountability system. At the core of such a system is the notion that the judge adjudicating a case shall have the power to decide it and shall also be responsible for the decision made. Its intended purpose is to help ensure the power and authority of the judge in judicial proceedings and, in the meantime, to reduce the role of the judicial committee, a special decision-making body in the court system, in the determination of cases.Footnote ⁵⁸ There has always been criticism that the judicial committee acts as a backseat driver in the trial and interferes with the independence of the judges in their rulings.

The notable components of the judicial accountability system include the presiding judges’ conference and the case allocation mechanism. The presiding judges’ conference is a newly established channel by which the presiding judges in various cases discuss and exchange views on the pending cases. According to the SPC, the presiding judges’ conference is purposed to provide guidance and reference for judges to accurately apply the law, promote the unification of adjudication rules and standards, summarize trial experience, and improve trial management.Footnote ⁵⁹

Depending on the topics and nature of cases to be discussed, the presiding judges’ conference may invite experts, scholars, other relevant professionals, as well as NPC delegates or members of the Chinese People’s Political Consultative Conference (CPPCC), to attend. The cases submitted to the presiding judges’ conference for discussion at the request of a presiding judge or collegiate panel include (a) those that are new, difficult, complicated, and have great social impact; (b) those involving rules and standards of judgment that need to be unified or have general guiding significance in the application of laws; (c) those in which the judgment to be made will be inconsistent with the rules and standards in the judgment of similar cases decided by the court or higher people’s courts; (d) those for which the opinions of the members of the collegial panel are quite different; (e) those in which the presiding judge who holds a minority opinion thinks that it is necessary to invite discussion; (f) those in which a reversal, a change of the judgment, a remand for a new trial, an appellate review, or an order for a retrial is to be made; and (g) others that need to be submitted for discussion.Footnote ⁶⁰

Case allocation refers to the method of distributing cases among the judges. The reform has put in place a system under which random allocation is the mainstay, supplemented by assignment in limited cases. The allocation of cases is made randomly among the judges on the basis of subjects of law and the complexity of the cases. After allocation, for such reasons as recusal, job transfer, health condition, or risk of corruption, the judge handling the case may be replaced. The replacement, however, is subject to the review and approval of the division head or president of the court under their respective authority. If a replacement is made, a timely notice shall be given to the litigants and shall also be made public on the case’s platform online.Footnote ⁶¹

The judicial accountability system includes lifetime responsibility for the quality of the case adjudicated and disciplinary action against the judge for misconduct committed during the process of adjudication. The lifetime responsibility is aimed at ensuring the quality of cases adjudicated. According to the SPC, a judge shall be responsible for the quality of case adjudication for life and shall be held liable for illegal adjudication if the judge intentionally violates the law or commits gross negligence when adjudicating the case that results in a wrong judgment causing serious consequences.Footnote ⁶²

Disciplinary action takes place when a judge is found to have violated the duty of adjudication. The violation is assessed and determined by the provincial disciplinary committee consisting of representatives from the high, intermediate, and trial people’s courts, as well as civilians. The type of discipline taken against a particular judge is dependent on whether an illegal adjudication has been committed and whether the judge acted intentionally or through gross negligence.Footnote ⁶³

The third major change concerns openness and transparency of judicial proceedings. As noted, the judicial reform began with the promotion of judicial transparency by the publication of cases. Since 2013, judicial transparency has been more closely linked to an extensive scale of openness in judicial proceedings. Under a concept called judicial democracy, the SPC has established nationwide channels for the public to access trial proceedings, court hearings, judgment documents, and enforcement procedures.Footnote ⁶⁴ According to the SPC, the establishment of these channels is to help advance in the Chinese judiciary a principle of full and substantive disclosure according to the law.Footnote ⁶⁵

Take court hearings, for example. In order to make the court trial open and transparent, the China Court Live Broadcasting Website was established in December 2013 under the auspices of the SPC. The website was then upgraded in 2016 to provide nationwide live online broadcasting of court trials of all cases that can be made public under the law. Through this website, the public can watch a trial live online or obtain a video of the trial via the Internet. In addition, all trial information online can be shared through Weibo (a microblogging website) or WeChat.Footnote ⁶⁶ Now all 3,525 courts across the country are connected to the court’s digital network. In recent years, however, the openness and publication of cases seem to have suffered a serious setback due to the tightened control of information dissemination in the nation.

The fourth major change is the structural or organizational change of the courts. This change has occurred in several aspects. The first aspect is the creation of circuit courts. Chinese courts comprise four tiers in terms of jurisdiction: at the top is the SPC, and under the SPC are the basic people’s courts, intermediate people’s courts, and high people’s courts. In 2015 and 2016, six circuit courts were created to handle multi-provincial cases.Footnote ⁶⁷ The circuit courts are purposed to handle inter-regional and serious administrative, civil, and commercial disputes, and in the meantime minimize or avoid the influence of local interests.Footnote ⁶⁸

Note, however, that the creation of circuit courts does not add an extra tier into the current court system in China. The circuit courts are merely dispatched branches of the SPC and are charged with the power to adjudicate cases as assigned by the SPC. The judgments and rulings by the circuit courts have the same effect as those made by the SPC. In addition, the presidents of all six circuits are the senior justices of the SPC. The work of the circuit courts is considered important to improve judicial efficiency and help effectively maintain social harmony and stability.Footnote ⁶⁹

The second aspect of the structural change involves the expansion of specialized courts. Before the reform, in addition to the regular people’s courts, there were several specialized courts, including military courts, maritime courts, railway transportation courts, forest courts, land reclamation courts, and oil courts. In 2014, three Intellectual Property (IP) Right Courts were established in Beijing, Guangzhou, and Shanghai to adjudicate IP-rights-related cases. In addition, as of 2019, nineteen IP Chambers were formed in sixteen provinces. The latest one was the IP Chamber of the SPC, which was established in January 2019 to deal with appeals of highly specialized and technical cases, such as patent infringement.Footnote ⁷⁰

In addition, on August 20, 2018, the Shanghai Financial Court was formed with special jurisdiction over finance-related civil, commercial, as well as administrative cases that used to be adjudicated in intermediate people’s courts. The cases adjudicated by the financial court mainly involve disputes concerning liabilities for misrepresentation in securities, financial loan contracts, corporate bond trading, repurchase of pledged securities, financial leasing contracts, and business trusts.Footnote ⁷¹ Under the SPC rules, the financial court also has jurisdiction over (a) bankruptcy cases in which financial institutions are the debtors; (b) judicial review requested for the arbitration of finance-related civil and commercial disputes; and (c) applications for recognition and enforcement of foreign judgments and rulings on finance-related civil and commercial disputes.Footnote ⁷²

Moreover, in 2017 and 2018, three Internet courts were established in Hangzhou, Beijing, and Guangzhou. These courts are missioned to experiment and implement the SPC’s initiative of “online resolution of online disputes.” The Internet courts are aimed at promoting judicial efficiency by using the Internet to facilitate online verification of a litigant’s identity, collection of evidentiary materials, and service of process.Footnote ⁷³ The SPC anticipates that the Internet courts will be able to draw and refine from their practices rules for adjudicating Internet-related cases so as to help effectively and fairly adjudicate newly emerged difficult and complicated online cases, including, for example, ownership of big data, liability for contracting fault in online shopping, and ownership of copyrights on IP works.Footnote ⁷⁴

A highly notable development in this regard is the establishment of the China International Commercial Court (CICC) under the SPC. In response to the rapid expansion of international commercial transactions between China and other countries, and as an effort to help implement the country’s “Belt and Road” initiative,Footnote ⁷⁵ the SPC in 2018 created a special court named the “International Commercial Court” to adjudicate international commercial cases in a fair and timely manner in accordance with the law, equally protect the legitimate rights and interests of Chinese and foreign parties, and create a stable, fair, transparent, and convenient international business environment ruled by law.Footnote ⁷⁶ There are two CICCs established by the SPC. The First CICC is located in Shenzhen, and the Second CICC is in Xi’an. The CICC is defined as the SPC’s “permanent judicial body” specializing in handling international commercial disputes. But since the creation of the CICC is purposed to serve the “Belt and Road” initiative and guarantee its implementation, its international function and effectiveness remain to be seen.

The third aspect is the formation of pilot courts for transregional trials. In December 2014, in order to maintain and enhance judicial credibility with the public, the Fourth Intermediate People’s Court in Beijing and the Third Intermediate Court in Shanghai were established as pilot courts to conduct trials across administrative regions. The two courts are designated to be responsible for adjudicating major civil, commercial, administrative, environmental resource protection, food and drug safety cases, and some major criminal cases that involve different administrative regions. The very purpose of the transregional trials is to ensure that cases involving local interests are fairly adjudicated.Footnote ⁷⁷

What is worth noting here is the effort to establish a centralized budget system at a provincial level for all intermediate and trial courts. As part of the reform on judicial finance management dictated in the 2014 Decision, the centralized budget intends to have the expenditures of the intermediate and trial courts in the province covered by the provincial rather than the local government. The purpose is to sever local courts from possible influence and interference by the local government. But absent financial assistance from the central government, the judicial budget centralization has met more resistance than expected in many provinces due to the lack of sufficient and sustainable fiscal capacity to implement it.

Another major change resulting from judicial reform concerns the qualifications and roles of people’s assessors. China does not have a jury system, but instead has people’s assessors in judicial proceedings. As a normal practice, people’s assessors form a collegial panel with a judge in the trial. Since 2015, the SPC has been carrying out a reform of the people’s assessor scheme with a focus on such matters as criteria and methods for the selection of people’s assessors, expansion of the scope of people’s assessors’ participation and power in the trial, and advancement of the job security of people’s assessors.Footnote ⁷⁸

The purpose of the reform concerning people’s assessors is to put in place a new mechanism that will help better employ the advantages of people’s assessors in their familiarity with social reality and public opinion, and turn their role mainly to the finding of facts of the case rather than the issue of application of law. In other words, under the new mechanism, the people’s assessors, when participating in the trial, will only have the power to vote on factual issues.Footnote ⁷⁹

The new mechanism is intended to bring about four conversions: (a) selection of people’s assessors is transformed from reliance mainly on recommendations by certain organizations to random selection from a people’s assessor pool; (b) the power of the people’s assessors is changed from full participation in the trial to the finding of facts; (c) the collegial panel turns from a three-member panel to a seven-member panel so as to increase the number of people’s assessors participating in the trial; and (d) the evaluation of cases attended by the people’s assessors shifts from quantitive evaluation to qualitive evaluation.Footnote ⁸⁰

In 2018, the first People’s Assessors Law of China (PAL) was adopted.Footnote ⁸¹ Many provisions in the PAL actually derive from outcomes of the reforms. For example, article 14 of the PAL provides that when the people’s assessors and judge form a collegial panel to adjudicate a case, the judge should serve as the presiding person, and the collegial panel can be a three-member or seven-member panel.Footnote ⁸² Also, under article 19 of the PAL, if people’s assessors are required for the formation of a collegial panel, they shall be selected randomly from a list of the people’s assessors, depending on the nature of the particular case.Footnote ⁸³

C. Unfinished Business

To the extent that judicial efficiency is to be maintained and the law is to be observed, the decades-long judicial reform has dramatically improved the Chinese judiciary. The public confidence and trust in the judiciary, however, do not seem to have reached the levels desired. Judicial independence remains in limbo. The problem is that the courts are still deemed a tool to serve the interests of the CPC. The tone set clearly by the CPC for the country is that China must never follow the path of Western constitutionalism, separation of powers, or judicial independence.Footnote ⁸⁴

On February 27, 2019, the SPC issued its Fifth Five-Year Reform Outline of the People’s Court (2019–2023), entitled the Opinions on Deepening the Comprehensive Supporting Reform of the Judicial System of the People’s Courts.Footnote ⁸⁵ According to the SPC, a fundamental principle that governs the continuing reforms in the people’s courts is the absolute leadership of the CPC over the work of the people’s courts. Thus, it is imperative that judicial reform must always be under the leadership of the party, and the CPC’s core role in holding the reins of all government branches, including the judiciary, must be maintained. But a question inevitably raised is how to restore and maintain the public trust and confidence in the judiciary without judicial independence.

A. Theme of the Legal System: Obligation-Based v. Right-Based

Rights and obligations are the two fundamental values contained in any legal system. A right in general is a legal or moral entitlement, while an obligation is regarded as a course of action imposed by law, society, or conscience by which one is bound or restricted.Footnote ⁸⁹ Both the notion of rights and the interaction between rights and obligations determine the character and nature of a society, which in turn affects the legal structure of that society.Footnote ⁹⁰ In a society that is legally ordered and administered, rights are necessarily the center of attention because they are directly related to the dignity of human beings as well as the basic order of human society.Footnote ⁹¹ In addition, rights are deemed vitally important in the theory of justice.Footnote ⁹²

The concept and contents of rights may vary from country to country, but they are commonly classified into two major categories. One category is called “universalist and egalitarian” and the other is referred to as “authoritarian and hierarchical.” The former is the modern conception of rights, which holds that equal rights are granted to whole people. The latter represents the historical notion that different rights ought to be granted to different people depending on status, and as a result some should have more rights than others.Footnote ⁹³

In addition, there are two main conceptions of rights in the modern world: natural rights and legal rights. The idea of natural rights holds that there is a certain list of rights enshrined in nature that cannot be legitimately modified by any human power. The theory of natural rights is closely related to natural law. Legal rights, however, are considered human constructs, created by society, enforced by governments, and subject to change.Footnote ⁹⁴ Natural rights are commonly defined as the rights “not contingent upon the laws, customs, or beliefs of any particular culture or government,” while legal rights are considered as the rights “bestowed onto a person by a given legal system.”Footnote ⁹⁵

China is a country in which obligations are weighed significantly over rights, and hardly any right may be deemed natural. Historically, the country was deeply immersed in and bound by Confucian norms of morality that placed great emphasis on the hierarchy and order of social status. The Confucian creed that “the ruler must be like a ruler, the subject like a subject, the father like a father and the son like a son” set an insurmountable boundary that defined the propriety of the behavior of a person in reference to the person’s social status.Footnote ⁹⁶

The very focus of the creed was the obligations of loyalty and filial piety, upholding a fundamental principle that one must commit his life to serve in order to be loyal, and one must devote all he could in order to show filial piety. Of all Confucian virtues, filial piety stood at the top. Thus, with regard to the law, the theme was mainly to impose duties and obligations through punishment rather than to recognize rights and protect entitlements.

Again, the legacy of Confucianism not only forged Chinese legal culture but also had a long-lasting influence on the development of the Chinese legal system. In Mao’s era, for example, the obligations-based theme became such a strong political force that no one dared to mention individual rights. At that time, everything was centered on serving the public interest for society as a whole. Pursuant to Mao’s proletarian class theory, people in the working class should claim nothing as their own. As a result, for many decades, all in the country were subject to social and public interest, and every individual must subordinate his/her rights to the great cause of socialism.

The development of a market economy in China, however, has generated a drive to reverse course to place more attention on rights. Since the 1990s, there has been a growing demand in the country for the respect and protection of individual rights or human rights. In the late 1990s, a national debate emerged among scholars on whether the socialist legal system in China should be premised on rights rather than on obligations.Footnote ⁹⁷ Those who opposed the obligation-based legal scheme argued that the pursuit of a market economy in China raised a great necessity to place civic rights ahead of obligations. They believed that socialist law in modern China should rest on a basic assumption that rights should take priority over obligations.Footnote ⁹⁸

Although the debate did not produce an immediate change institutionally in favor of a rights-based legal system and no consensus was reached, it undoubtedly helped increase public awareness as well as consciousness of civic and civil rights. Partly for those reasons, the debate was deemed a major breakthrough against the conventional ideology in the country that overly stressed obligations and belittled rights.Footnote ⁹⁹ In addition, many saw the legislation trending in recent years toward the protection of the rights of the consumer as well as weak groups as a sign of change in social values appreciating, and a legal framework shedding light upon, the importance of rights.Footnote ¹⁰⁰

In addition, the commitment made by the CPC to “putting people first”Footnote ¹⁰¹ and the “building of a harmonious society,”Footnote ¹⁰² though quite policy-driven, also implicates a policy change in the government’s attitude toward concern for the people. This commitment, initiated in 2003 and reinforced in 2006, was a direct response to the growing anger of the public over spreading corruption in the government, including the judiciary. Its purpose was to alleviate public concern over the degeneration inside the Communist Party, to improve and enhance the governing ability of the CPC, and to help maintain the stability of society. Nevertheless, it demonstrates that more importance is being attached to people’s rights.

Another indication of recognition of rights was the 2004 Amendments to the 1982 Constitution. In the 2004 Amendments, it became a constitutional principle in China that lawful private property is inviolable. The 2004 Amendments also mandate that the state protect the rights to private property and its inheritance, and to make compensation for private property expropriated or requisitioned for the public interest in accordance with the law.Footnote ¹⁰³ Those constitutional provisions strengthened the legal protection of private property rights and expressed to respect and safeguard human rights.

Despite the progress, however, the theme of the legal system in China has not yet shifted to a rights-based system. Among others, the institutional hurdles of the CPC and the traditional “power-driven” political culture have made it extremely difficult, if not impossible, to routinely put people first or duly respect the rights of people. It remains typical that government officials at all levels are appointed, and in many cases are handpicked, by the Communist Party committee at the corresponding level. An unwritten but quite settled protocol is that the officials, once appointed, tend to be responsible only to their superiors and are most concerned with satisfying them.

Thus, for Chinese officials, there is no such concept as constituency or constituent. As discussed infra in the book, in China’s long history, the tradition has always been that politics are bureaucrat-oriented rather than people-oriented. Given that power is unchecked and directly linked to all privileges and benefits, legal or illegal alike, the official rank or status matters and carries significantly more meaning than anything else. More importantly, as a general pattern, an officer may hold a certain position for a certain period of time, but the privileges and benefits associated with his or her rank or status would stay with him or her for a lifetime.

Therefore, despite the commitment repeatedly made by the CPC and the central government to respect the rights of people, the general public at large somehow remains skeptical. In this regard, it remains to be seen in China whether and how the theme of the socialist legal system will turn to be rights-based rather than obligation-based. There are two fundamental questions that are still unsolved. What are the basic rights that are unalienable to people? And how will these rights be adequately and effectively protected?

B. Role of the CPC: Supremacy of Party v. Supremacy of Law

The toughest issue facing the Chinese socialist legal system is the position and the role of the CPC vis-à-vis that of the law. On their face, the provisions of law appear to be clear. Under the 1982 Constitution (as amended in 2004), people of all nationalities, all state organs, the armed forces, all political parties and public organizations, and all enterprises and institutions in the country must take the Constitution as the basic standard of conduct, and must uphold the dignity of the Constitution and ensure its implementation.Footnote ¹⁰⁴ Also, there is a constitutional requirement that no organization or individual be privileged to be beyond the Constitution or law.Footnote ¹⁰⁵

It is logical to infer from the Constitution that all parties in China, including the CPC, shall act under and in compliance with the Constitution. And in this context, it appears that the Constitution is the supreme law of the country. But in fact, the power of the Constitution is always challenged by the power of the CPC, and in many cases, the CPC is actually placed above the Constitution. This often casts serious doubt in the public as to whether the Constitution or the CPC has superiority in the country. A seemingly unsolved puzzle is whether the CPC must also be subject to the law. There are several attributes to this confusing but real phenomenon embedded in the political structure of the nation.

The first attribute is the Constitution itself. Although the 1982 Constitution (as amended in 2018) provides that the country is to be governed by the law, it explicitly emphasizes the leadership of the Communist PartyFootnote ¹⁰⁶ and upholds the single-party ruling system. The amended Constitution firmly states that the CPC-led system of multi-party cooperation and political consultation shall exist and develop for a long time to come.Footnote ¹⁰⁷ The 2018 Amendments further prescribe the leadership of the CPC as “the defining feature of socialism with Chinese characteristics.”Footnote ¹⁰⁸ The CPC leadership is also positioned as the most fundamental basis of the rule of law in the country.

There are, however, at least two major loopholes. One loophole is that the Constitution places the CPC above all others and provides the CPC with absolute power. The danger is that once a power becomes absolute, abuse of such power may become inevitable. The other loophole is the lack of a proper check on the CPC. Without a constitutional check, it would be impossible to prevent the CPC from abusing power. Consequently, the CPC becomes the most binding force, leading the general public to believe that the CPC is much more powerful than the Constitution. Even worse, the unchecked power of the CPC unavoidably becomes the breeding ground for corruption. Although the CPC has been trying to employ a so-called self-correction mechanism against corruption, such self-vigilance never seems to have worked effectively.

The second attribute is the official conception of law adopted in China. Deeply rooted in Marxist theory, law in China is commonly viewed as a manifestation of the will of the ruling class, and legislation is the process of turning the will of the ruling class into the will of the state.Footnote ¹⁰⁹ Further, since the CPC is characterized as the only representative of the ruling class (namely the working class) in China, the will of the ruling class ultimately becomes the will of the CPC. Thus, no law, including the Constitution, may be enacted without the consent of, or approval by, the CPC.

Because the “will” theory underlies all legislation in China, the CPC holds the real legislative power, although under the 1982 Constitution (as amended in 2018), the NPC is the highest legislative body of the state,Footnote ¹¹⁰ and the NPC and its Standing Committee exercise the nation’s legislative power.Footnote ¹¹¹ Thus, despite its constitutional standing as the country’s top legislature, the NPC in reality must follow the leadership of the CPC. As noted, the legislative work of the NPC is to make the CPC’s opinion become the law or will of the state through the NPC’s legislation. In addition, the NPC must make all efforts to ensure that all candidates recommended by the CPC for various government posts are elected or appointed.Footnote ¹¹² For those reasons, the NPC is often nicknamed the “rubber stamp.”

The third attribute is that the CPC controls the election of delegates to the NPC. Pursuant to the 1982 Constitution (as amended in 2018), the NPC is composed of delegates elected from the provinces, autonomous regions, municipalities directly under the central government, SARs, and the armed forces. The facts, however, tell a different story. The direct election of delegates only takes place at the county level, and all other delegates are elected from the candidates recommended by the CPC. In addition, the election of delegates to the NPC is made on the basis of a quota, and the allocation of the quota is determined by the Standing Committee of the NPC under a framework authorized by the CPC.

Among the total number of delegates to be allocated, about 10 percent are directly controlled by the NPC, following the opinion of the CPC. Direct control means that the NPC earmarks a certain number of delegates to certain provinces, and such provinces ensure that these earmarked delegates are duly elected, even though the delegates have little or nothing to do with the people of a particular province. Another notable point is that among the delegates of the NPC, a vast majority are members of the CPC.Footnote ¹¹³ As a general principle, all delegates who are CPC members must vote for whatever proposals the CPC has made for the NPC.

Moreover, during NPC meetings, delegates indulge in conversations among themselves, or express their views, about how wonderful the CPC leadership is and how significant the achievements made at all levels of government have been. Delegates rarely criticize the work of the CPC or the government. In the 2009 NPC annual assembly meeting, as one delegate from Guangdong sharply noted, for every ten-minute speech allowed per delegate during the group discussion at the NPC meeting, some eight minutes were used to offer flattery or praise the work of the government and their own self-achievement, leaving little or even no time to address any serious and legitimate business or social concerns.Footnote ¹¹⁴

The fourth attribute relates to the CPC’s control of the judiciary. Prescribed in the 1982 Constitution (as amended in 2018), the people’s courts of China have the independent power of adjudicating cases in accordance with the law and are not subject to interference by any administrative agencies, public organizations, or individuals. However, it is unclear whether the constitutional power of independence reserved for the Chinese courts is subject to challenge by the CPC. Although the Constitution is vague in this regard, it appears that no judicial power may trump the authority of the CPC.

The CPC’s control of the judiciary is easily discernible from many aspects. First, all courts in China are bound by a stated principle that judicial work must adhere to the leadership of the CPC. The foremost responsibility of the judiciary is to provide legal safeguards so that the leadership of the CPC is not tarnished. Second, the appointment of judges is generally made with the purpose of best serving the interests of the CPC. Particularly, most presidents of the courts, if not all of them, are political appointees, many of whom do not even have a legal background.Footnote ¹¹⁵ Third, all people’s courts at different levels are directly under the supervision of the political and legal affairs committees of the CPC at their corresponding levels, and all major cases must be reported to such committees before a court judgment is made.

A descriptive catchphrase that exemplifies the relationship between the CPC and the people’s courts was the doctrine of the “Three Supremes.” Introduced by the CPC in 2007, the “Three Supremes” included “supremacy of the cause of the CPC, supremacy of the interests of the people, and the supremacy of the Constitution and law.”Footnote ¹¹⁶ Since the “three supremacies” should be observed in that particular order, the top priority must be given to the cause of the CPC. In 2008, the doctrine of the “Three Supremes” was adopted by the SPC as the guiding principle of the courts. Under that doctrine, all judicial work must serve to uphold the interests of the CPC and to maintain social stability.

However, many in China have criticized the doctrine of the “Three Supremes” as fatally flawed. On its face, the doctrine creates a serious logical problem because supremacy should not have three juxtapositions. It seems evident that there would be no supremacy if all were deemed supreme. In addition, the content of the doctrine is quite subversive of the general notion that the Constitution is the fundamental law and has the highest legal status. Thus, in a society ruled by law, nothing may surpass or be side by side with the Constitution. Encountering furious criticisms, the CPC quietly phased out the doctrine of the “Three Supremes” years later.

In October 2019, the CPC Central Committee issued the Decision on Several Major Issues of Upholding and Improving the Socialist System with Chinese Characteristics to Promote the Modernization of the National Governance Mechanism and Capacity.Footnote ¹¹⁷ In the Decision, the “Three Supremes” was replaced with the “Supremacy of Constitution and Law” alone.Footnote ¹¹⁸ The Decision set it as a goal to form and improve an institutional mechanism that guarantees the full implementation of the Constitution. But still, the prerequisite is that the leadership of the CPC must be maintained in all aspects of national governance.Footnote ¹¹⁹ Then the question that remains is whether the CPC should also be subject to the Constitution and law, and how.

C. Limits on Government Authority: Public Power v. Private Rights

China is widely referred to as an authoritarian country with a powerful and highly centralized bureaucratic system.Footnote ¹²⁰ The government power at both central and local levels is so extensive and far-reaching that its tentacles not only reach every aspect of the country’s political and economic fields but also extend to the realm of private rights.Footnote ¹²¹ In Mao’s era, as noted, nothing was deemed private and all could be penetrated for the cause of the party.Footnote ¹²² Since the gear of the country was reversed from class struggle to economic development after Mao’s death, private rights have emerged to become the center of attention.Footnote ¹²³ The boundary between public power and private rights has ever since been a hot topic that prompts nationwide discussions and debates.

In Chinese legal literature, public power is described as referring to the authorities held by state agencies and government officials to manage state affairs, maintain social order, and protect the welfare of the public, including, among others, the legislative, administrative, and judicial authorities.Footnote ¹²⁴ Private rights, on the other hand, mean individual rights (natural person or entity) of a private nature, which consist of both personal and property rights.Footnote ¹²⁵ In addition, public power has two basic functions: to maintain order, including economic order, political order, social order, cultural order, etc., and to provide necessary public services, while private rights are the rights comprising private interests and personal will on an individual basis.Footnote ¹²⁶ Furthermore, public power in general possesses coercive force, but private rights are basically premised on the principles of party autonomy and voluntariness.Footnote ¹²⁷

In a society, public power and private rights are always interconnected. When public power is exercised, private rights are often at stake because all power is susceptible to abuse.Footnote ¹²⁸ Thus, the possible conflict between public power and private rights is an issue that constantly arises.Footnote ¹²⁹ A major problem China is encountering in its course of building the country under the rule of law is how to prevent public power from being abused so that private rights are not harmed.Footnote ¹³⁰ Since China does not have a tradition to place constraints on government, it has become a spiraling social outcry against unlimited public power.Footnote ¹³¹ As early as 2013, the Third Plenary Session of the 18th CPC Central Committee, in response to the call for a battle against corruption, set as a requirement that “power must be locked in the cage of regulation.”Footnote ¹³²

But since there is no effective system to place the government on a leash, the abuse of public power and infringement of private rights and interests persist and remain in an endless stream in the country.Footnote ¹³³ There are two fundamental issues with which China is still struggling. The first issue involves the intended purpose of law, that is, whether the law is purposed to limit government power or to prescribe the scope of private rights.Footnote ¹³⁴ As discussed, in Chinese history, all individual rights were considered to be granted rather than inherent in individuals. Under that notion, the law was primarily not to deal with how public power or government authority should be limited but to provide what rights may be granted to private individuals. Although efforts have been made to alter this notion in order to shut power in the cage of regulation, nothing seems substantial in action.Footnote ¹³⁵

The second issue concerns the exercise of public power and the entitlement of private rights. It is believed that a country governed by the rule of law shall adhere to the principle that no public power can be exercised without explicit authorization by law and all private rights can be freely enjoyed unless otherwise provided by law.Footnote ¹³⁶ Put differently, in the public field, the government can only do what is allowed under the law, and in civil areas, private individuals may do whatever is not prohibited by law. The rudimental concept is that the power of the government is not obtained naturally but endowed by law, while private rights inherently exist and may not be taken away without due process of law.Footnote ¹³⁷

In China, it has also become a common belief that to better protect private rights, government power should be limited.Footnote ¹³⁸ But the path to turn the common belief into reality is both rocky and stormy.Footnote ¹³⁹ Bureaucratic resistance is strong, and hurdles are high. First, the lack of an effective mechanism to oversee public power makes it hard, if not impossible, to confine the government to act within the statutory boundary.Footnote ¹⁴⁰ Second, the absence (even denial) of a check and balance scheme inevitably leads to the overexpansion and excessive use of public power.Footnote ¹⁴¹ Third, the vague and unclear provisions of law and regulations in prescribing public power often result in the abuse of public power to infringe private rights.Footnote ¹⁴²

D. Dominance of Public Ownership: Public Domain v. Private Interests

The past decades have witnessed sweeping changes in China as a result of vast economic reform. One significant change was the change in the ownership structure of the country from single public ownership to a coexistence of multi-ownerships. Since 1988, when a private economy was formally legalized in the nation,Footnote ¹⁴³ the protection of private ownership has become an issue generating a great deal of debate and controversy. Among the highly debated issues is whether private ownership shall enjoy the same rights and protection as public ownership does.

Despite the reform and changes, what remains intact is the dominant position of public ownership. In 1992, the ultimate goal of economic reform was rephrased to establish a “socialist market economy” system.Footnote ¹⁴⁴ The term “socialist” clearly refers to the guarantee of public ownership, and state ownership in particular, which is characterized as the “leading force” of the nation’s economy. Private ownership, as defined in the 1999 Amendments to the 1982 Constitution, is at most “an important component of the socialist economy.”Footnote ¹⁴⁵

In its 2019 Decision, the CPC Central Committee reiterated that the basic economic system of China contains (a) public ownership as the mainstay with common development of multi-ownership economies, (b) the scheme of “to each according to his work” as the main body of the distribution coexisting with multi-distribution methods, and (c) the socialist market economy.Footnote ¹⁴⁶ Under this economic system, the state is said to unswervingly consolidate and develop the public ownership economy, and in the meantime encourage, support, and guide the development of the non-public ownership economy.Footnote ¹⁴⁷

It should be noted that since 2004 there have been two important pieces of legislation aimed at protecting private ownership, or the interests of private property. The first piece was the 2004 Amendments to the 1982 Constitution. The 2004 Amendments legally recognized the inviolable nature of private property, alleviating the previously entrenched hostility to private property in the country. The second piece of legislation was the Property Law. Passed on March 16, 2007, and effective October 1 in the same year, the Property Law for the first time in Chinese history granted equal protection to all property rights, public and private alike, and altered the orthodox notion of the nation against private ownership.

However, the protection of private property rights and private interests does not seem to rest with ease. On the contrary, the public demand for equal protection of private property still meets strong resistance from the traditional holding of the superiority of socialist public ownership over all other forms of ownership. One legitimate concern, for example, is how the Property Law is to be implemented. A thorny problem is how to change the ideology of the predominance of public property so that a legal framework can provide equal protection to private property, especially where the public domain and private interests conflict.

It is even more difficult in the country to limit the government’s power to interfere with individual liberty and private property rights. The interference in most cases originates from the government’s strong appetite for control, in conjunction with its desire to maintain social stability. Surely, there is nothing wrong with the government maintaining social stability, but the issue is whether stability should be achieved at the cost of loss of property or violation of the rights of particular individuals, or if it should be maintained by preventing the misconduct of government.

Unfortunately, the focus of social stability in China has been largely on how to constrain the conduct of people rather than the actions of government.Footnote ¹⁴⁸ As noted, it is a common phenomenon that lower-level Chinese government officials often care more about their job performance and their superiors’ satisfaction than about the interests of the general public.Footnote ¹⁴⁹ For example, during the 2020–2023 pandemic period, China forcefully put into place a notorious “Zero Covid” policy with massive compulsory tests and abrupt lockdowns in buildings, neighborhoods, and even whole cities. Despite the huge negative impacts on people’s lives, food shortages, loss of jobs, etc., and mounting public anger, governments at all levels in the country raced to strictly enforce the policy in order to maintain a high degree of consistency with the top leader of the CPC.Footnote ¹⁵⁰

E. Government Power Structure: Allocation of Powers v. Separation of Powers

In the development of the socialist legal system with Chinese characteristics, one fundamental issue is how state power should be exercised under the leadership of the CPC so that the tragedy of the Cultural Revolution will not be repeated. An important lesson the country learned from the Cultural Revolution was that state power should not be excessively concentrated on any individual, the party chief or the state head alike. For many years, there have been efforts to establish a mechanism for the separation of the party and the government, but no promising result has ever been produced.

In many countries in modern times, government responsibilities are divided among different branches, and each branch is constrained to its own authority. The very notion of such division is the doctrine of separation of powers. In a constitutional government, the system of separation of powers is purposed to prevent the concentration of power in the hands of individuals or groups and to provide for a mechanism of checks and balances. In the U.S., for example, three government branches, the Executive, Legislative, and Judiciary, are structured separately and independently to ensure that each can limit the powers of the others and no one branch may become too powerful. With checks and balances, the usurpation of power would be prevented.

In China, the concept of separation of powers was accepted as early as the early 1910s when Dr. Sun Yat-sen, the founding father of the Nationalist government, proposed the five-power constitution. According to Dr. Sun, to form a democratic government after the fall of the imperial regime in the country, there must be a five-power constitution without which a government would not be complete and could not do its best work for the people.Footnote ¹⁵¹ The five powers referred to five branches of government, including executive, legislative, judicial, examination, and censorate branches.Footnote ¹⁵² The last two branches were deemed as China’s imperial heritage of political structure because they were traditional Chinese administrative components.Footnote ¹⁵³

In March 1921, the Nationalist government began to draft the Constitution structured on the five powers. However, not until 1946 was the Nationalist Constitution formally adopted. Provided in the Nationalist Constitution was a central government with five branches in order to ensure a balanced division of powers. But because of the civil war and the communist boycott, the Nationalist Constitution was not effectively implemented in the country. In 1949, when the Communist Party took control, the Nationalist Constitution, along with other laws adopted by the Nationalist government, was entirely abolished.

Since 1949, the notion of separation of powers has never been recognized in China because the leadership of the CPC is considered the core of the political structure of the nation. An unshakable mindset created in the general public is that the CPC should and must have control of everything in the country. It is a firmly upheld governing principle that government, military, society, and schools; north, south, east, west, and central, the CPC leads them all.Footnote ¹⁵⁴ In recent years, as a response to the call for the establishment of a constitutional government under the rule of law,Footnote ¹⁵⁵ the CPC once again took a clear stance against the adoption of constitutionalism, separation of powers, or judicial independence in the country.Footnote ¹⁵⁶ As a result, the CPC’s power over all aspects of Chinese society continues to expand.Footnote ¹⁵⁷

Thus, government powers in China are not separated but allocated among different government branches under the umbrella of the people’s congress system. All government branches, central or local, are required to be responsible to the people’s congress at the corresponding level. The congress, as noted, is under the direct control of the CPC. But due to the lack of checks and balances, corruption and abuse of power have long become a chronic disease of the government, and even within the CPC. As noted, the CPC took a great deal of pride in a self-correction mechanism, but the effectiveness of the self-correction is always in serious doubt.

It should also be noted that in recent years there has been a new reporting system developing in the country under which all CPC Politburo members must make a personal working report annually to Xi Jinping. A similar report shall also come from the NPC, State Council, SPC, and the Supreme People’s Procuratorate (SPP). A clear signal from the reporting system is that Xi is the supreme leader of the country. But a question in many people’s minds both at home and abroad is how the power of the top leader of the country is to be checked and limited under the rule of law China is pursuing.