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CONSTITUTION

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CONSTITUTION Powered By Docstoc
					   CONSTITUTION
          OF
THE PEOPLE'S REPUBLIC OF
         CHINA
PREAMBLE

       China is a huge country with a total land
 area of 9.6 million square kilometers, and more
 than 1.3 billion people which amounts to one
 fourth of the world population.
       China law is one of the oldest legal
 traditions in the world. At present, Chinese law
 has been a complex mix of traditional Chinese
 approaches and Western influences.
Uniqueness of Chinese Laws

1. One unitary country with multiple legal
  Jurisdictions
   Since the return of Hong Kong and Macau in 1997 and
    1999, China has three legal jurisdictions. This is part of
    the One Country, Two Systems policy.
   Hong Kong still retains the common law system inherited
    as a former British colony, and Macau employs a legal
    system based on that of Portuguese civil law. They have
    their own courts of final appeal and extradition policies.
   Hong Kong and Macau are outside of the legal
    jurisdiction of China, except on constitutional issues.
2. Striking Chinese Characteristics

 For most of the history of China, its legal
  system has been based on the Confucian
  philosophy of social control through moral
  education, as well as the legalist emphasis
  on codified law and criminal sanctions.
 Confucianism relies on traditional informal
  methods while Legalism makes standard
  law that even the emperor should be bound
  by.
3. Significant external influences

   The civil law tradition has dominant influence on
    Chinese law since the Qing dynasty to 1940’s and re-
    emerging as a significant force in modern China
   The Soviet Union influence was great between 1950s and
    1970s and even can be identified today
   Common law is also finding its way into Chinese law,
    especially in procedural law and commercial law.
   In general, Chinese legal system is largely a civil law
    system, reflecting the influence of Continental Europe
    legal systems. However, earlier traditions from Chinese
    history have retained their influence.
Case Law
   In China, unlike common law jurisdictions such
    as the United States or England, there is no strict
    precedential concept for case law.
   In theory, each case stands as its own decision
    and will not bind another court.
   in practice lower people’s courts judges often
    attempt to follow the interpretations of the laws
    decided by the Supreme People’s Courts.
   Moreover, higher courts can use the finality of
    their judgments on appeals as having a binding
    effect on the lower court that issued the first
    judgment or order.
Supremacy of the Constitution

 The highest and ultimate source of legal
  norms in the PRC is the Constitution of the
  People's Republic of China.
 It establishes the framework and principles
  of state, and lists the fundamental rights
  and duties of Chinese citizens.
 Any laws contravening the constitution are
  null and void.
Brief History
 Over the past century, there have been
  numerous constitutions in China.
 The first attempts towards implementing a
  constitution in China were made during the
  final decade of the Qing Dynasty.
 Several constitutions were subsequently
  promulgated by various controlling groups
  between that time and the establishment of
  the PRC.
   After PRC establishment in 1949, China has
    adopted 4 constitutions consecutively.


                     1954   1975   1978    1982

    Preamble         √             √       √
    NO.of Chapter
                     4             4       4
    NO.of Clauses
                     106    30     60      138
    Clause related   12     6      8       13
    to economy
    Clause related   15     2      12      18
    to rights
   1954 constitution was based on the constitution of the
    Soviet Union.

   1975 constitution of the PRC was modeled on the
    ideology of the Cultural Revolution. This constitution
    subjected the NPC to the Communist Party and removed
    previous constitutional protections such as equality under
    the law and private property succession rights.

   1978 constitution moved away from the ideologies of the
    Cultural Revolution, it did retain some remnants of it. It
    also retained Communist Party control over the state
    structure.

   1982 constitution shifted to economic construction and
    modernization. This Constitution also contains more
    extensive rights than any of the previous constitutions.
   The current constitution was adopted at the
    Fifth Session of the Fifth National People's
    Congress on December 4, 1982.

   Since then, the Constitution has been
    amended 4 times, respectively in 1988,
    1993, 1999 and 2004.
State Nature
   The socialist system is the basic system of the
    People's Republic of China.
   The National People's Congress and the local
    people's congresses at various levels are the
    organs through which the people exercise state
    power.
   All administrative, judicial and procuratorial
    organs of the state are created by the people's
    congresses to which they are responsible and by
    which they are supervised.
Economic system
   China implements socialist market economy.

   The basis of the system is socialist public economy with
    the public ownership remaining dominant.

   Individual, private and other non-public sectors of the
    economy exist and are major components of the socialist
    market economy.

   The state encourages, supports and guides the
    development of the non-public sectors of the economy,
    and exercises supervision and control over the non-public
    sectors of the economy in accordance with the law.
   Socialist public property is inviolable.
       The state protects socialist public property.
    Appropriation or damaging of state or collective
    property by any organization or individual by
    whatever means is prohibited.

   The lawful private property of citizens is
    inviolable.
         The state protects according to law the right
    of citizens to own and inherit private property.
         The state may, in the public interest,
    appropriate or requisition private property of
    citizens for its use in accordance with the law,
    while making compensations.
The Legislative system
The Legislative system
   The legislative system refers to specially defined
    activities by a specially appointed organ to work out,
    recognize and change laws and regulations by using its
    designated rights, following certain procedures and
    applying the necessary technique.
   China's legislation includes:
   the legislation of the National People's Congress and its
    Standing Committee,
   regulation making by the State Council and its relevant
    departments,
   the legislation of ordinary localities, ethnic autonomous
    regions, special economic zones and special
    administrative regions.
The National People's Congress
 NPC is "the highest organ of state power"
  and exercises "the legislative power of the
  state."
 The Constitution and Law on Legislation
  enshrines the NPC with authority to:
   Enact and amend the Constitution;
   Enact laws;
   Supervise national legislative operations; and,
   Exercise its power in other legislative efforts.
the NPC Standing Committee
   The NPC Standing Committee is the permanent office of
    the NPC. Its legislation is of the highest level next to that
    of the National People's Congress.
   The Constitution and Law on Legislation grant
    the following major legislative authorities to the
    NPC Standing Committee:
   The power in enacting and amending laws;
   The power in interpreting the Constitution and laws;
   The power in supervising legislation; and,
   Other legislative powers.
State Council
   the State Council is the highest administrative organ of
    the central government .
   the State Council mainly exercises the following
    legislative functions:
   To implement and amend administrative rules and
    regulations
   To submit drafts of laws to the National People’s
    Congress and its Standing Committee
   To make provisions through authorization
   Regulation making supervision within a certain range
   the National People’s Congress and its Standing
    Committee can, according to actual necessity, authorize
    the State Council to make administrative rules and
    regulations in regard to matters that should be stipulated
    by laws and regulations.
   Except for matters regarding criminal legislation, the
    basic political rights of citizens, the rights of personal
    freedom, and the judicial system.

   The State Council is also empowered with a certain
    degree of supervision rights in regulation creation. It has
    the power to change or cancel any unsuitable decisions
    and orders made by its subsidiary departments or by local
    government.
Departments of the State Council
   The regulation making by the departments under
    the State Council is one with Chinese
    characteristics, The State Council has several
    dozen ministries, commissions, and other directly
    affiliated organs. The rules and regulations they
    make have equal validity.
   Article 90 of the Constitution stipulates that "The
    ministries and commissions issue orders,
    directives, and regulations within the jurisdiction
    of their respective departments and in accordance
    with the law and the administrative rules and
    regulations, decisions, and orders issued by the
    State Council."
Local legislature
   Local legislatures refers to the local organs of
    state power that make and amend standard legal
    documents within their own administrative areas,
    in accordance with relevant laws.
   Local legislation is an important aspect of the
    whole legislative system of the country. Includes:
   general local legislation, including 22 provinces and 4 special
    municipalities, (26)
   local legislation in ethnic autonomous areas, (5)
   local legislation in the special economic zones (5)
   special administrative regions. (2)
Local legislation in China mainly cover the
following:
   to effectively enforce the Constitution, laws, rules, and
    regulations. On one hand, local legislation can make
    these laws and regulations more specific to the local
    situation for effective performance at different places in
    different situations, with the help of implementing rules
    or flexible regulations. On the other hand, local
    legislation can make the above easier to perform or
    supplement wherever the rules are inadequate.
   to settle those issues that legislation at the central level
    cannot solve independently or for which central
    legislation temporally does not exist.
   to independently solve all issues that should be settled
    through local legislation. For example, issues related to
    local policies, economy, education, science, culture,
    public health, civil affairs, and other specific issues that
    should be settled through local legislation.
The Executive System
The President
   The President is the legally head of state.
   He is responsible for state's foreign affairs and
    defense affairs.


    By law, the President must be a Chinese citizen
    of 45 years of age or older. The President cannot
    serve for over two successive terms, a term being
    the equivalent of one session of the NPC, which
    is five years.
State Council
   The State Council, which is largely synonymous with
    the Central Government, is the chief administrative
    authority. It is chaired by the Premier and includes the
    heads of each governmental department and agency.
    There are about 50 members in the Council

   As the chief administrative organ of government, its main
    functions are to formulate administrative measures, issue
    decisions and orders, and monitor their implementation;
    draft legislative bills for submission to the NPC or its
    Standing Committee; and prepare the economic plan and
    the state budget for deliberation and approval by the NPC.
   The State Council is the functional center of state power.
   The State Council’s term of office is five years
The Judicial system
The nature of the judiciary system
 the judiciary means law enforcement
  activities conducted by the country's
  judicial organs and organizations in
  handling prosecuted or non-prosecuted
  cases.
 Judicial organs are responsible for
  investigation, prosecution, trial and
  execution of cases, including the
  prosecutors, the trial institutions and the
  custodial system.
The structure of Courts
Court System
   China has a four-level court system.
   the top is the Supreme People's Court
   Lower courts are the higher people's courts in provinces,
    autonomous regions, and special municipalities; (31)
   Intermediate people's courts at the prefecture level and
    also in parts of provinces, autonomous regions, and
    special municipalities; (376)
   Basic people's courts in counties, towns, and municipal
    districts, (over 3000) which are further subdivided into
    about 20,000 smaller units referred to as people’s
    tribunals located in towns and villages.
Supreme Court
   The Supreme Court is in Beijing. The highest
    judicial organ, exercising the highest judicial
    power.
   The Supreme Court exercises the following
    powers:
   Supervise lower courts and special courts.
   Try the following cases: a) First-hearing cases falling
    under its jurisdiction as prescribed by the law. b) Cases
    appealing or protesting rulings of higher courts and
    special courts, and protested cases submitted by the
    Supreme Procuracy
   Approve death penalty cases.
   Issue judicial interpretations on how to apply law and
    writs.
   Lead and manage judicial administration of courts at all
    levels across the country.
Higher People’s Court

 The first instance cases assigned by law, or
  transferred from lower courts;
 Major criminal cases which impact the
  entire province.
 Hearing cases of appeals or protests
  against judgments and orders of lower
  courts
Intermediate People’s Court

   First instance jurisdiction in some
    cases, including:
   Those transferred to it from basic people’s court;
   major cases dealing with foreign parties;
    Endangering the State Security
   criminal cases subject to sentence of life
    imprisonment or death;
   hearing appeals and protests.
Basic People’s Courts

 Local level courts adjudicate criminal and
  civil cases of first instance. Excluded from
  jurisdiction are criminal cases carrying
  penalty of death or life imprisonment, as
  well as certain foreign civil cases.
 The courts can request that more important
  cases be transferred to a higher court.
Special courts
    Special courts are courts set up in special
     departments for special cases wherever necessary.
  military courts: to try cases involving crimes committed
   by servicemen
  maritime courts: to try maritime or sea-shipping cases for
   the purpose of exercising judicial jurisdiction over
   maritime affairs.
  railway courts: to try the following types of cases:
  (1)Criminal cases investigated by railway public-security
   authorities and filed by railway prosecutors. (2)Cases
   involving economic disputes on railway transportation.
The procuracy
   The court system is paralleled by a hierarchy of
    prosecuting organs called procuracy; at the apex
    stands the Supreme People's Procuracy.
   The procuracy is a unique institution in
    Chinese law. It is equal to the court in its
    constitutional status.
   The procuracy performs multiple functions as an
    investigative, prosecutorial, supervisory, and
    judicial body.
Organizational form of State Power

   The National People's Congress is the highest
    organ of state power.
   The NPC includes a Standing Committee that functions
    much as the NPC does when the NPC is not in session.

   The National People's Congress exercises the
    following functions and powers:
   (1) To amend the Constitution;
   (2) To supervise the enforcement of the Constitution;
   (3) To enact and amend basic statutes concerning
    criminal offences, civil affairs, the state organs and other
    matters;
   (4) To elect the President and the Vice-President of the
    People's Republic of China;
   (5) To decide on the choice of the Premier of the State
    Council upon nomination by the President, and to decide
    on the choice of the Vice-Premiers, State Councillors,
    Ministers in charge of Ministries or Commissions and the
    Auditor-General and the Secretary-General of the State
    Council upon nomination by the Premier;
   (6) To elect the Chairman of the Central Military
    Commission and, upon his nomination, to decide on the
    choice of the other members of the Central Military
    Commission;
   (7) To elect the President of the Supreme
    People's Court;

   (8) To elect the Procurator-General of the
    Supreme People's Procuratorate;

   (9) To examine and approve the plan for national
    economic and social development and the reports
    on its implementation;

   (10) To examine and approve the state budget
    and the report on its implementation;
   (11) To alter or annul inappropriate decisions of the
    Standing Committee of the National People's Congress;

   (12) To approve the establishment of provinces,
    autonomous regions, and municipalities directly under
    the Central Government;

   (13) To decide on the establishment of special
    administrative regions and the systems to be instituted
    there;

   (14) To decide on questions of war and peace; and

   (15) To exercise such other functions and powers as the
    highest organ of state power should exercise.
Citizen’s Basic Rights and Obligations
Basic Rights

   In March 2004, an Amendment to the
    Constitution was adopted by the Second
    Session of the Tenth National People's
    Congress, which included the statement
    "the State respects and safeguards
    human rights" in the Constitution, thus
    ushering in a new chapter in the progress
    of China's human rights undertakings.
 The Chinese Constitution comprehensively
  stipulates the citizens' basic rights and
  freedoms.
 Based on the Constitution, China has
  enacted a series of laws on the protection
  of human rights, and set up a relatively
  comprehensive legal system for the
  protection of human rights.
The people's rights to subsistence
and development are guaranteed.
   China's Constitution focuses on realizing the
    people's rights to subsistence and development.
   two great historical leaps:
   from being poverty-stricken to having enough
    food and clothing, and then to reaching the
    moderately well-off stage.
   China has successfully solved the problem of
    feeding 22 percent of the world's population with
    less than 10 percent of the world's arableland.
Citizens' civil and political rights
are guaranteed.
   China's Constitution and law protect citizens' rights to
    freedom of religion, speech and press, and of association.
   Citizens' rights to property, reputation, personal name,
    honor, personal dignity and personal safety as well as the
    right to keep one's property from encroachment are also
    acknowledged and protected.
   China has set up and improved an open information
    system and other related systems to ensure that the
    citizens enjoy full democratic rights to information,
    supervision and participation in public affairs.
People's economic, social and
cultural rights are guaranteed.
   Constitution and law protect citizens' rights to
    labor, rest, gender equality, equal pay for equal
    work for men and women, intellectual property,
    social security, receiving material aid and
    education, marriage and divorce, as well as the
    right to engage and participate in scientific
    research, literature, art and other cultural
    activities.
The special groups of people, such as women,
the aged, minors and the disabled, are
guaranteed.

   China has enacted:
   the Law on the Protection of the Rights and
    Interests of Women,
   the Law on the Protection of the Rights and
    Interests of the Aged,
   the Law on the Protection of Minors
   the Law on the Protection of the Disabled
The rights of the ethnic minorities
are guaranteed.
   China has 55 minorities

   Article 4 All ethnic groups in the People's
    Republic of China are equal.

   People of all ethnic minorities, like citizens of
    the Han ethnic group, enjoy all equal civil rights
    specified in the Constitution and laws, and
    participate in the management of state and local
    affairs on an equal basis.
Preferential policies
   There are also wide-ranging preferential policies
    in place to promote social and economic
    developments for ethnic minorities, including:
   preferential employments,
   political appointments,
   business loans.
   Universities typically have quota reserved for
    ethnic minorities despite having lower admission
    test scores
   Ethnic minorities are also exempt from the one-
    child policy which is aimed toward Han Chinese.
   The state protects the lawful rights and interests of the
    minority ethnic groups and upholds and develops a
    relationship of equality, unity and mutual assistance
    among all of China's ethnic groups. Discrimination
    against and oppression of any ethnic group are prohibited;
    any act that undermines the unity of the ethnic groups or
    instigates division is prohibited.
         The state assists minority ethnic groups in
    accelerating their economic and cultural development
    according to the characteristics and needs of the various
    minority ethnic groups.
         Regional autonomy is practiced in areas where
    people of minority ethnic groups live in compact
    communities; in these areas organs of self-government
    are established to exercise the power of autonomy. All
    ethnic autonomous areas are integral parts of the People's
    Republic of China.
         All ethnic groups have the freedom to use and
    develop their own spoken and written languages and to
    preserve or reform their own folkways and customs.
   The Chinese government pays serious attention to the
    positive role played by international conventions on
    human rights in promoting human rights.

   China has joined 21 international conventions on human
    rights, and has adopted a series of measures to fulfill its
    obligations as specified in those conventions.

   In October 1997, the Chinese government signed “the
    International Covenant on Economic, Social and Cultural
    Rights”. The Chinese government submitted its first
    report on the implementation of the Covenant to the
    United Nations in 2003 as scheduled.

   The Chinese government also signed “the International
    Covenant on Civil and Political Rights” in October 1998.
Basic Obligations
   Safeguard the unification of the country and the
    all its nationalities;
   Abide by the Constitution and the law, keep state
    secrets, protect public property, observe labor
    discipline and public order and respect social
    ethics;
   Safeguard the security, honor and interests of the
    motherland and not commit any acts detrimental
    to the security, honor and interests of the
    motherland;
   Defend the motherland and resist aggression;
   Pay taxes.
National Emblem and Flag

				
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