Socialist Legal System Research Articles

State Legalism and the Public/Private Divide in Chinese Legal Development

From total rejection to reluctant acceptance and eventually to full acceptance with new justifications, the Chinese attitude towards the public/private divide has undergone several stages in theory and practice. During the early stages of the People’s Republic of China (PRC), Chinese scholars of law and political science firmly rejected the divide between the public and the private as being a distinction made in bourgeois law that should be replaced by a new socialist legal system, which would acknowledge no such difference. Since the start of reforms in the late 1970s, the newly ascendant private sector of the economy called for legal recognition of its status, but due to ideological constraints inherited from the pre-reform era, it was not easy to give meaning to the existence of the private sector. Debates were waged among Chinese scholars over the distinction between the public and the private for the purpose of recognizing private ownership. Eventually, the distinction was recognized. The Chinese case is obviously a very good example to show that such a distinction does play a role in shaping or improving a legal system. The emergence of “social law,” however, has blurred the demarcation between the two, calling for new theorization. The “publicization of private law” and “privatization of public law” have further strengthened the ambiguity with respect to the public/private divide.

Disputes between the State-Owned Enery Enterprise and Farmers - Analysis in the Perspective of Sociology of Law

In recent years, with the gradual establishment of the socialist legal system in China, the construction of legal system is tending toward perfection. But the actual operating effects of law enforcement are relatively not ideal. Social group disputes occurred frequently. In this paper, three typical litigation disputes between the state-owned coal enterprises and farmers caused by coal mining are taken as examples to elaborate the concrete practice process of the law in the litigation disputes. In order to explain the inner logic of legal practice in specific disputes, the external conditions, the internal mechanism and deep motivation in the disputes which influenced the legal practice process are analyzed. Finally its concluded that the consideration of legal effect and political power operation determines legal judgments in these litigation disputes, furthermore, explains legal practice process in specific disputes.

I. An Imperfect Improvement: The New Conflict of Laws Act of the People's Republic of China

On 28 October 2010, the Standing Committee of the Eleventh National People's Congress adopted China's first statute on the Conflict of Laws: the ‘Act on the Application of Laws over Foreign-related Civil Relationships’ (‘Conflicts Act’).1 The adoption was an historic event in Chinese legislative history, as it indicates China has modernised its conflict-of-law rules after many years of unremitting efforts made by legislators and scholars. More importantly, it means that ‘a socialist legal system with Chinese characteristics’ has been successfully established, and allows China to claim to have a systematic legal system.2

The Socialist Legal System with Chinese Characteristics: Its Structure, Features and Trends

中国特色社会主义法律体系的形成为研究中国法律体系的结构、特色和发展趋势 奠定了现实基础。可以规范性法律文件的归属和法律规范的性质两个向度作为研究法 律体系的框架。前者的目的在于描述中国立法的现状, 后者旨在分析不同性质的法律 规范在各个法律部门的分布。改革开放以来, 由于市场经济、民主政治、和谐社会、 生态文明、法制建设和全球化的影响, 使各类法律规范在不同法律部门中的分布发生 有意义的变化, 这种变化一方面反映世界各国法律体系发展的共性, 另一方面又有鲜 明的中国特色。 关键词: 法律体系 法律规范 公法与私法 实体法与程序法 国际法与国内法 The formation of the socialist legal system with Chinese characteristics has laid the practical foundations for studying the structure, features and trends of China’s legal system. Our framework for such study is constructed along two dimensions: the classification of normative legal documents and the nature of legal norms. The aim of the former is to describe the current situation of China’s legislation, while the purpose of the latter is to analyze the distribution of different legal norms in different branches of law. Since reform and opening up, under the impact of the market economy, democratic politics, the harmonious society, ecological civilization, the construction of a legal system and globalization, significant changes have taken place in the distribution of various legal norms in different legal fields. On the one hand, these changes reflect shared features of the development of legal systems across the world; on the other, they are stamped with strong Chinese characteristics.

Emergency Law in China: Its Formation, Present State and Future

中国非常法律的形成, 是为了应对紧急事件。这类法律由法律法规、应急预案和 军事法规等组成, 规定了战争状态、紧急状态和应急状态三种非常状态, 致力于建构 专业化大分工基础上的综合统一体制。在实践中, 应急预案取代了法律法规, 成为紧 急事件治理的基本规范依据; 政府和武装力量处于主导地位。中国非常法律基于必要 而形成, 其适用具有临时性, 主要内容具有授权性和预防性。非常法律未来发展的主 要目标是: 与中国特色社会主义法律体系衔接, 制定紧急状态下的基本法, 完善非常 法律的各项具体机制。 关键词: 非常状态 综合治理 执行主导 预防性法律 China’s emergency laws have emerged as a result of dealing with crises. They comprise laws and regulations, emergency plans, and military regulations, and define three exceptional or emergency states: war, emergency and emergency response, with the aim of constructing a comprehensive integrated system based on the specialized division of labor. In practice, however, emergency plans take the place of laws and regulations and provide the fundamental normative basis for tackling emergencies, with government and the military playing the dominant role. Developing out of necessity and possessing temporary applicability, China’s emergency laws are characterized by authorization and prevention. Integrating emergency law with the socialist legal system with Chinese characteristics, formulating basic law for emergency situations and improving the specific mechanisms of emergency law should be regarded as major steps in its future development.

The Communist Party & the Law: An Outline of Formal and Less Formal Linkages between the Ruling Party and the Other Legal Institutions in the People's Republic of China

This paper, roughly belonging to the comparative public law field, investigates the concrete links, formal, quasi-formal and substantial interactions, functional and organic compenetrations occurring amongst legal and political actors in the Chinese Party-State System.The legal position enjoyed by the ubiquitous Communist Party within the political-legal system of the PRC. A description is provided on how the status of the Party and the Socialist System - the protecting and enveloping skull within which the Party-brain operates - has been modified and re-engineered, and sometimes formalized throughout a broad set of norms (constitutions, political documents, system-laws, ordinary laws, administrative regulations, case law) since the establishment of the PRC in 1949 and particularly during the Deng, Jiang and Hu eras.The political-legal means used by the Party to operate as an organism innervating its parent-body i.e. the PRC institutional system. Attention is focused both on the statutory well-known organs that constitute the Party apparatus and on the less known and often neglected chains of transmission and ad hoc organisms a structures (Leading Small Groups, organic committees, Party groups, the nomenklatura etc) operating as traits d’union between Party, State (People’s assemblies, government/executive, military & security forces, judiciary), civil society and businesses, and carrying the Party’s will and impulse to the peripheral layers of the System.Party’s Legal Creativity. In discussing the greater Rule of Law topic, the question of how laws themselves are created and by whom is often forgotten. While looking at this issue and considering that in the CPC-ruled Socialist Legal System State rules are created according to CPC rule development, the question then becomes whether a new legal category is needed to conceptualize CPC regulations. The CPC has a complex corpus of internal rules, and the production of party norms and regulations comes through the CPC Interim Regulations on the Procedure for Establishing Internal Party Regulations, an internal legislation law established in 1990, about 10 years prior to the national Legislation Law. As the normative framework for Inner Party Rule of Law existed prior to State Rule of Law, there is indeed a need of conceptualization of CPC rules, and a possible complement to the notion of binding ‘normative’ rules of State would be to consider their alter ego, the soft CPC rules, as ‘nomopoietic’, or rule-creating rules for the State.

Sudska vlast u slovenskim državama

The idea of the unity of all Slavic people was the most dominant in 19th century at the time of Panslavic movement, which resulted in number of valuable scientific works, dealing with older history and rights of Slavic people, and even in attempt to prove the existence of the Slavic law, equal in value to German or French legal system. This movement lost its significance not longer after that, but the idea of making the link between the Slavic people did not disappear. At the beginning of 20th century the new Slavic countries were created, and after 1945 they were organized as socialist federal states with similar political and legal systems following Soviet model. At the time of brake of socialism and separation of ex federations, 13 Slavic countries were created in Europe and they all almost completely substituted the previous socialist legal system with western continental system. Based on the afore-mentioned it is clear that there are many similarities between Slavic people and Slavic countries that allow as to analyze and compare their legal systems. In this study, we have analyzed and compared legal regulation of the judicature in Slavic countries.

Chinese Justice, The Fiction: Law and Literature in Modern China

During the first thirty years under communism, China completely banned crime fiction. After Mao, however, crime genres of all kinds-old and new, Chinese and Western-sprang up in profusion. Crime narrative again became one of the most prolific and best-loved forms of Chinese popular culture, and it often embodied the Chinese people's most trenchant and open critiques of their newly restored socialist legal system. This is the first full-length study in any language of Chinese crime fiction in all eras: ancient, modern, and contemporary. It is also the first book to apply legal scholars' and literature inquiry to the rich field of Chinese legal and literary culture. Familiar Holmesian, quintessentially Chinese, and bizarre East-West hybrids of plots, crimes, detectives, judges, suspects, and ideas of law and corruption emerge from the pages of China's new crime fiction, which is alternately embraced and condemned by the Chinese establishment as it lurches uncertainly toward post-communist society. Informed by contemporary comparative and theoretical perspectives on popular culture and the fiction of crime and detection, this book is based on extensive readings of Chinese crime fiction and interviews-in China and abroad-with the communist regime's exiled and still-in-power security and judicial officers. It was in the Orwellian year of 1984 that the authorities set out to control China's crime fiction and even to manufacture it themselves-only to find that fiction, like the social phenomena it depicts, seems destined to remain one step ahead of the law.

"Zum Schutze des deutschen Blutes. ..": "Rassenschandegesetze" im Nationalsozialismus (review)

Reviewed by: “Zum Schutz des deutschen Blutes . . .”: “Rassenschandegesetze” im National sozialismus Helmut Berding “Zum Schutz des deutschen Blutes...”: “Rassenschandegesetze” im National sozialismus, by Michael Ley. Bodenheim bei Mainz: Philo Verlag, 1997. 348 pp. 28 DM. After their seizure of power the National Socialists attempted to distance the Jews as quickly as possible from the economic, political, and cultural life in Germany. The first measures were instituted in early 1933 and expanded quickly. With the Nuremberg racial laws of September 15, 1935 Nazi Jewish policy reached a new level. The number of lawyers who participated in the anti-Jewish legislation and jurisdiction increased. Their cooperation with the “race-denigrating laws” stands at the center of this study by Michael Ley. The political-religious background of the Nuremberg Laws is first addressed; next the juridical and social environment of the racial-political legislation; and, finally the study turns to the question of how the administration of justice in the post-war period came to grips with its own past. The first part of the study sheds light on the “blood- and race-denigrating processes” in the context of National Socialist sacred theology (“Heilstheologie”). In clarifying the thesis the author, in several cases, draws connections to canon law. The ensuing section on the spiritual straying of the National Socialist legal system emphasizes the central role of Hegelian legal philosophy. Helmut Berding Historical Institute University of Gießen translated by Dean Bell Copyright © 2001 The University of Nebraska

China: Responsibilities of the Procuratorate and the Necessity for Cooperation in Combating Economic Crime

China is a developing country. It is establishing a socialist market economy in a country with a socialist legal system. Since the start of the adoption of reform policy and of being open to the outside world, China has made remarkable advances under the guidance of Deng Xiaoping's theories. At a time when the country has devoted its efforts to economic construction and development, great attention has been paid to building a socialist democracy and a legal system that lays great emphasis on anti‐corruption and a clean government, combating economic crime and meting out punishment to offenders. In recent years, mechanisms have been put in place for punishing corruption, in which each government department takes responsibility for its own behaviour. There has been, therefore, excellent cooperation between different departments in the fulfilment of their function and in combating internal economic crime, resulting in a move towards corruption‐free government.

Curbing the Party: Peng Zhen and Chinese Legal Culture

Peng Zhen was the father of the socialist legal system in the People’s Republic of China. During the post-Mao era, Peng made the National People’s Congress less of a rubber-stamp legislature and advocated making the Communist Party accountable to law.

Transitional Justice in Eastern Germany

On October 3, 1990, the German Democratic Republic (GDR) ceased to exist. On that celebrated day of German unity, the GDR incorporated itself into the legal and political system of the Federal Republic of Germany (FRG). Economic and social union had taken place a few months earlier.1 After 40 years, a people who had become accustomed to central planning, full employment, and state ownership of almost everything suddenly found themselves compacted into a profit-driven market economy rooted in private ownership. Equally swift was the legal revolution, for Unity Day witnessed the toppling of the GDR's judicial system, along with its superstructure of socialist legality, and its replacement by West German judicial institutions. The hurried changeover touched the lives of all GDR legal professionals judges, prosecutors, lawyers, notaries, and law professors. What some of them encountered and felt in the overnight shift from a socialist legal system to a capitalist one is the subject of Inga Markovits's remarkable book.

The French Deviation

To a comparative lawyer, the end of the socialist revolution in the Soviet Union and its satellites provides a number of topics for reflection. For one, why did the effort to build a socialist legal system following the 1917 Revolution produce such apparently inconsequential results? The American and French Revolutions are generally thought to have had fundamental, lasting legal consequences that are clearly visible today in legal systems throughout the world, but Soviet socialist law at its height seems never to have penetrated the surface of the culture in the USSR or elsewhere. Socialist legal principles appear in retrospect to have been at most a sort of temporary superstructure erected on a legal base that was largely Western in character. With the end of the Soviet experiment that superstructure has been dismantled, leaving few marks. To use a different metaphor, the Western legal body appears to have rejected the socialist transplant. The attempt to build a socialist legal order now looks more like a temporary deviation than a new direction. My purpose here is to discuss a legal invention of a different revolution, one that also sought to introduce a radical change into European law. I will suggest that this history is in important ways analogous to the history of Soviet law. It illustrates how an attempt to establish a fundamental legal reform derived from one nation's political and historical imperatives, fuelled by the works of influential theorists and widely exported to nations with different political and historical characteristics, eventually revealed itself to be a parochial product of a particular set of historical conditions. Rather than the relatively simple process of dismantling a temporary superstructure, however, the effort to free legal systems from the consequences of this deeply embedded innovation has been long and painful and is still incomplete. The revolution to which I refer is the French Revolution of 1789. The innovation was the effort to make the law judgeproof. Part of the story is familiar. In pre-Revolutionary France the regional parlements became centers of conservative power. The judges,

The Judicial Explanation in Chinese Criminal Law

As we know, when law has been made by legislators, it will remain as law on paper, if it is not implemented by judicial officials,' especially by Judges. The of the law by Judges is law in action and therefore plays a very important role in legal systems. In the United States and the Federal Republic of Germany, as well as other western countries, this kind of understanding of Judges, i.e., law in action, is displayed in the form of the case reports or Gerichtsentscheidungen. In the Chinese Criminal Justice System, however, it appears as the judicial explanation. Judicial explanation has a long history in Chinese legal systems. The famous Tang Lu Shu yi2 is a good example of this kind of explanation in ancient time. After 1949 when the People's Republic of China was founded, the People's Supreme Court had given many judicial explanations, although they were substantively fragmented and generally confidential.3 However, the Chinese judicial explanation today is fundamentally different from the former ones. Since 1979, when the Chinese Criminal Code and Criminal Procedure were published, the Chinese judicial explanation has been progressively developed in a declaratory and systematic way.4 Today, the judicial explanation has been playing a more and more important role in bringing the established frame of the socialist legal system to perfection and in keeping good implementation of the laws. The judicial explanation has become indispensable for scholars to get a complete picture of the Chinese legal system and for practitioners to apply Chinese laws.

Riding the Tiger: Legitimacy and Legal Culture in Post-Mao China

Efforts at legal reform in China under the banner of the socialist legal system (shehui zhuyi fazhi) represent an attempt by the post-Mao regime to rest legitimacy in part on an ideology of formal law that complements the regime's efforts at economic reform. While the Party has not abandoned its reliance on the conceit that it represents the forces of historical revolution, the establishment of the socialist legal system is aimed to some extent at addressing a more immediate challenge of retaining legitimacy in the eyes of a populace for whom abstract notions of historical determinacy have little meaning. Proponents of reform have linked these abstract and practical aspects of legitimacy by asserting that legal reform is a requirement of the specific stage of historical development in which China now finds itself.

Judicial Review in the Socialist Legal System: Current Developments

Judicial Review in the Socialist Legal System: Current Developments

Positively Carry Out the Contract System under the Policy of Adjustment

All professions and trades in the country are now pushing for implementation of the contract system. The legislative bodies and economic departments of the nation are also actively engaged in the study and formulation of laws and regulations pertinent to the contract system. In the course of economic adjustment and structural reform, this serves as a good beginning in the gradual use of economic methods and devices for effective economic management. It not only reflects the dynamic new situation emerging in our economic life but also reflects the new development in the building of a socialist legal system in the economic field.

"Independent Administration of Justice" and the PRC Legal System

The Chinese Communist legal system has made its way through all kinds of vicissitudes. Even though China created a legal system of the people's democracy in 1954, it was struck by a chain of political movements in less than three years. The legal system was paralyzed, government organizations were undermined, and people's freedom and political rights were violated. Since the demise of Mao Zedong, the whole society has been demanding in an increasingly louder voice that the people's freedom and rights be protected by law. In addition, many senior cadres of the Chinese Communist Party, in view of their personal experience of persecution for years, also have demanded that a stable legal system be established to safeguard the livelihood of one billion people. Consequently, the Chinese Communist party has since 1978 endeavored to build a socialist legal system. It has again promulgated many important laws and constitution.

A Teaching Outline for A General Knowledge of the Law for Lower Secondary Schools in the Full-time Ten-Year System (Discussion Draft, January 1981)

The teaching objectives are: to give the students an introductory understanding of the laws of our nation, in particular a basic knowledge of constitutional law, criminal law, and criminal law procedures; to raise the level of the students' knowledge of social democracy and the socialist legal system; to give them instruction in the legal system; and to strengthen their views toward observing the law.

Democracy and the Legal System

Strengthening the socialist legal system is an important guarantee for dealing blows at the enemy, protecting the people and accomplishing the general task for the new period. It should be given our serious attention. Our great leader and teacher Chairman Mao, at an enlarged work conference convened by the CCP Central Committee in 1962, emphatically pointed out: "Unless we fully promote people's democracy and inner-party democracy and unless we fully implement a system of proletarian democracy, it will be impossible for China to have true proletarian centralism. Without a high degree of democracy it is impossible to have a high degree of centralism, and without a high degree of centralism it is impossible to establish a socialist economy." It is clear that the socialist legal system and the principle of democracy are problems to which Chairman Mao attached great importance.