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【Journal Name】 China Law【Title】 Legislative,Judicial Innovation in China
【Author】 Liu Wujun【Area of Law】 Legal Information
【Year】 In 2006【Issue】 2
【ESummary】 85
【Full text】 2013/3/17 10:48:05
【Remark】 1510089998
【Reference】   
  

Over recent years, “innovation “has become a theme in the development or the rune or IA wand also a keyword in the process of the rule of law in China, which is remarkably embodied in legislative innovation and judicial innovation. As far as innovation in legislation is concerned, we have had quite a few new things the drafting of the Law of Property and extensive solicitation of public opinion son it; the change of the Law on Punishment in Administration of Law and Order from a law on punishment into a lawn control over power; the positive significance of the new procedure of registration of regulations for the record and for further review to curbing law violation in legislation, etc.  which all contributed to adding colorful characteristics to the work of legislation in 2005.As far as innovation in judicature is concerned, the move of the Supreme People’s Court to retrieve the power of reviewing and approving cases of death penalty for its own exclusive exercise from provincial level higher People’s Courts has become something arousing great public concern, and the initiation of spectacular appraisal of major developments of legal proceedings is intended to publicize a number of highly influential landmark cases.

To win public support, extensively solicit public opinions and sufficiently respond to the demands and proposals of all walks of life for legislation are distinctive characteristics of activities of legislation in China during the current new historical period of time. The Standing Committee of the 10t National People’s Congress (NPC)China's national legislature always attaches great importance to efforts to win public support and enlarge the scope of orderly public participation in the work of legislation. In particular, the NPC Standing Committee released in July 2005 the full text of the draft Law of Property to extensively solicit public opinions omit, generating very good social impacts. Besides, it held a legislative hearing on revision of the provision in the Personal Income Tax Law concerning the size of nontaxable income deducted from salaries and other forms of monthly pay the first time ever in the history of legislation on the part of both the NPC and its Standing Committee.

According to media reports, then Standing Committee will in 2006selectively release the full text of a number of important draft laws to extensively solicit public opinions on them that are related to the fundamental interests of the public or that are in need of coordination of interests of all walks of life. It will also hold legislative hearings on major issues in the draft laws, and hearings on highly technical legal issues, in order to extensively hear opinions from all walks of life, particularly from people at the grassroots level, and in order that new laws enacted will better serve to maintain the fundamental interests of the general public.

It seems that there have been no other laws than the draft Law of Property that is capable of arousing so extensive public concern over recent years. The Law of Property is a basic civil law concerning the fundamental interests of the public that is intended to define the attribution of things, protect property rights, give full play to the usefulness of things, safeguard people’s livelihood and maintain the order of the market economy in China. Therefore, the draft Law of Property has aroused extensive public concern ever since its submission to the NPC Standing Committee for review.

In early July 2005, the NPC Standing Committee released the full text of the draft Law of Property to extensively solicit public opinions, receiving more than 11,500 opinions on it from the Chinese public. In reality, the draft Law of Property has become the 12t Chinese law released to solicit public opinions before it was put to vote for passage.

A most remarkable characteristic of the public opinions solicited on the draft Law of Property this time is that many of the opinions are not only different views or suggestions on some specific provisions of the draft law, but also, more significantly, have legislative proposals attached to them. Some people even put forward specific legislative proposals for every single provision that interests them. Other people not only enumerate the provisions in question, but also offered examples of actual events that they encountered in real life.

The mobilization of the whole general public in making the Law of Property well serves as a shiny example of the Chinese style “opendoor legislation”. The release of the full text of the draft Law of Property to extensively solicit public opinions is not only of the sense of legislative openness, but also, more significantly, means a systemic innovation that goes beyond limitation of the traditional model of legislation.

The boom in the expression of public opinions brought about by the making of the Law of Property also serves to indicate a general increase of public awareness about private ownership of property and anxious expectation by the whole society of legislation for protecting private ownership of property. Effects of the making of the Law of Property have obviously gone far beyond the meaning of the law itself. The provisions of China's current Constitution for protecting private property have been significantly revised in keeping with the development of times. The revised Chinese Constitution provides: “Citizens' lawful private property shall not be violated,” and “The State protects the private property rights and right of inheritance of citizens in accordance with law.” Writing into the Constitution of such provisions as “Citizens' lawful private property shall not be violated” has undoubtedly contributed to ushering in a new era of constitutionalism for protecting private property in China.

In February 2006, China Civil Law Society and the School of Law of the People’s University of China jointly held a symposium under the theme of “The Law of Property and the Construction of a Harmonious Society in China. “At this symposium, more than 50 authoritative scholars with the community of jurisprudence in China unanimously agreed that the draft Law of Property was constitutional, emphasizing that the enactment of the Law of Property was a major guarantee for the construction of a socialist harmonious society in China. As a result, the jurists and legal scholars attending the symposium reached consensus on the following: The Law of Property is a major law for safeguarding the basic socialist economic system in China. The draft Law of Property already establishes the fundamental principles for equal protection of State ownership, collective ownership and private ownership, and has provisions meant to improve the legal system for protecting ownerships including property rights, which are all indispensable for maintaining the basic socialist economic system. The Law of Property is a major law for affirming and consolidating the achievements of the policy of reform and opening to the outside world, as well as for promoting further reform and opening up in an in-depth way. It is also a fundamental law for the system of a socialist market economy in China. The enactment of the Law of Property is a major move to encourage the broad masses of the people to create wealth in the interest of enhancing China's overall national strength. By affirming and protecting all types of property rights, the Law of Property stabilizes all forms of property relations, which will be conducive to arousing the enthusiasm of the broad masses of the people to create, accumulate and cherish property, and which will be conducive to promoting the socioeconomic development in China as well.

So far, the NPC Standing Committee has put review and enactment of the Law of Property on its legislative agenda for 2006.

China's first Law on Punishment in Administration of Law and Order went into effect on March 1, 2006.Judged from the perspective of an administrative law, the Law on Punishment in Administration of Law and Order Isa relatively typical law on control overpower it is actually intended to control abuse of police power.

The Law on Punishment in Administration of Law and Order comprises119 articles in six chapters the general provisions; the types of punishment and application of punishment; the definition of acts in violation of public security management and punishment for such acts; the procedure for punishment; supervision over law enforcement; and supplementary provisions. The major legislative intent of this laws to maintain the public order; safeguard public security; protect the legitimate rights and interests of citizens, corporations and other organizations; and regulate and maintain the fulfillment of official duties to manage law and order by public security organs and their People’s Police.

In comparison with its predecessor the 1986 Regulations on Punishment in Respect to Management of Law and Order the Law on Punishment in Administration of Law and Order is of the characteristics of “being more moderate in terms of leniency and harshness, prescribing stricter procedures and providing for better regulated punishment,” in conformity to the realities in China and the constitutional principles for respecting and safeguarding human rights, and in the interest of preventing violation of rights of citizens.

Obviously, the Law on Punishment in Administration of Law and Order Isa law closely related to the livelihood of the public, and is also a law directly in keeping with the new constitutional provision that “The State respects and safeguards human rights.” I am of the view that the enactment of the Law on Punishment in Administration of Lawanda Order can be fundamentally attributed to reflection on and review of China’s existing legal system on punishment in respect to management of law and order on the basis of the new constitutional provision that “The State respects and safeguards human rights. “It is a major sign of strengthening of the rule of law in respect to the management of law and order.

To respect and safeguard human rights and prevent the abuse of power by police have undoubtedly become the most realistic legislative characteristics of the Law on Punishment in Respect to Management of Law and Order. Inters of respecting and safeguarding human rights, the Law on Punishment in Administration of Law and Order provides that amalgamated execution of the punishment of administrative detention may not exceed a maximum of 30days, changing the situation that there was no ceiling on the duration of amalgamated execution of the punishment of administrative detention in China. The Law on Punishment in Administration of Law and Order also provides that the punishment of administrative detention shall not be applied to the following categories of persons though they are punishable with administrative detention for offenses under this law: those who have reached the minimum age limit of 14 years old punishable by the Criminal Law of China for crimes commission but who have not reached the age of 16; those aged between 16and 18 who violate management of law and order for the first time; those aged70 or older; and pregnant women or women breastfeeding their own infants under the age of 1 year old. Such a provision prescribes a different treatment to these special groups of lawbreakers while making negative comment on their law breaking acts, contributing to maintaining the dignity of law, particularly contributing to embodying the legislative spirit of attaching importance to the education of minors who violate management of law and order.


As far as the number of provisions is concerned, the 1986 Regulations on Punishment in Administration of Lawanda Order comprised only 45 articles in five chapters, in sharp contrast to the number of 119 articles in six chapters of the Law on Punishment in Administration of Law and Order. The Law on Punishment in Administration of Lawanda Order remarkably emphasizes the policy of comprehensive control over management of law and law, requiring People’s Governments at all levels to adopt effective measures to settle social disputes, increase social harmony and promote social stability. It makes additional provisions for some law-breaking acts punishable for violating management of law and order. The Law on Punishment in Administration of Lawanda Order prescribes more than 110 law-breaking acts punishable under it, and appropriately upgrades the maximum rates of fines. The law classifies the punishment of detention for violating management of law and order into the term of not more than five days, the term of five days to 10 days and term of 10days to 15 days, respectively in accordance with the definition and nature of the law-breaking acts. It strictly restricts the time limit for interrogation and detention. After summoning doers suspected of having violated management of law and order, the public security organs concerned shall interrogate them and verify their identity in a timely manner. The time limit for interrogation and identity verification normally may not exceed eight hours. Under complicated circumstances for which the punishment of administrative detention can be applied under the law, the time limit for interrogation and identity verification may not exceed a maximum of 24hours, according to the Law on Punishment in Administration of Law and Order. The prescription of these provisions is conducive to preventing unlawful extended custody and safeguarding the personal freedom of citizens.

A particularly remarkable legislative characteristic of the Law on Punishment in Administration of Law and Order is the addition of the chapter of Supervision over Law Enforcement to it, which makes pertinent provisions for the basic norms of conduct observable by public security organs and their People’s Police in handing cases of violation of management of law and order. The law prescribes the norms of conduct that public security organs and their People's Police must observe in meting out punishment for violation of management of law and order as well as the acts that they must refrain from taking. It provides that any investigation by public security organs or their People’s Police in cases of violation of management of law and order shall be conducted in accordance with law. It strictly prohibits the extraction of confessions through torture and the adoption of such illegal means as intimidation, enticement and deception to collect evidence. Meanwhile, the law provides that People's Police found to have used torture to extract confessions in the process of handling cases of violation of management of law and order will be given administrative sanction in accordance with law; and that where their relevant acts constitute crime, they will be investigated to establish their criminal responsibility. According to the law, where public security organs or their People’s Police are proven to have violated legitimate rights or interests of citizens, corporations or other organizations in exercising their authority in violation of law, they shall offer an apology; if damage is caused, they shall assume the responsibility of making compensation in accordance with law. The law also expressly makes 11 provisions that People's Policy may not violate and three circumstances under which People's Police shall withdraw in the process of handling cases of viola Lion of management of law and order.

I am of the view that application of punishment for violation of management of law and order is a field in which the right of discretion by police is mostly likely to be abused, and is also field in which personal rights or interests of citizens are the most vulnerable to abuse by police. Therefore, the Law on Punishment in Administration of Law and Order is not only a law on management of public security, but is also, more significantly, a law on control over power. Both the behavior of law enforcement and procedure for law enforcement by public security organs should be placed under strict supervision and regulation of the Law on Punishment in Administration of Law and Order.

At the 40t Meeting of the Chairman on December 16, 2005, the Standing Committee of the 10t NPC completed the revision of the Working Procedure for the Registration of Administrative Regulations, Local Regulations, Regulations on Autonomy, Separate Regulations and Regulations of Special Economic Zones for the Record and for Future Review, and adopted the Working Procedure for the Registration of Judicial Interpretations for the Record and for Future Review, contributing to further building up and strengthening the system of registration of regulations and judicial interpretations for the record and for future review, in the interest of maintaining the consistency of the national legal system. According to the latter, where the State Council and other State organs, social organizations, enterprises, public institutions or citizens consider that judicial interpretations contravene the Constitution or otherlaws,they can make a written request or proposal to the NPC Standing Committee for review. The adoption of this working procedure will undoubtedly contribute to creating favorable legal conditions for the establishment of a mechanism for review of constitutionality in China, and providing a powerful systemic guarantee for seemingly weak application by citizens for review of constitutionality in the country.

The system of review of constitutionality is one of the major systems for supervision over enforcement of the Constitution, whose chief purpose into determine and punish acts of violating the Constitution, particularly acts of legislative organs and administrative authorities to make unconstitutional laws or unconstitutional legal documents, in order to constrain the exercise of State power, safeguard rights of citizens and guarantee smooth implementation of the Constitution. Besides, the adoption of the two legislative supervision procedures meant to improve regulations and judicial interpretations also signifies great strengthening of the authority of the NPC Standing Committee to exercise supervision over legislation, and at the same time signifies the provision of a systemic guarantee for implementing and ensuring the supervisory right of citizens prescribed by the Constitution.

Review of constitutionality is a necessary mechanism for correcting errors in the functioning of public power of the State within the framework of the Constitution. It is also a systemic guarantee for normal functioning of the Constitution. What is pleasing is that the revision and adoption of the two working procedures has drawn widespread reactions. Just a few days after the revision and adoption, a proposal for review was sent to the NPC Standing Committee. On December 19, 2005,relatives of victims of an air crash that took place over Baotou City in north China’s Inner Mongolia Autonomous Region submitted a proposal to the Upstanding Committee for reviewing the Provisional Regulations on Compensation for Bodily Damage to Passengers of Domestic Air Transportation, also known as Decree No. 132 of 1993issued by the State Council. The proposal was sent to the NPC Standing Committee by express mail. Media reports said that it was the first proposal for review that the NPC Standing Committee received following the revision and adoption of the two working procedures.

On January 5, 2005, Supreme People’s Court President Xiao Yang announced that in 2006, the Supreme People’s Court would give priority to improving judicial procedures and would do a good job of requiring local courts to open court sessions when hearing cases of death sentence in second instance trial, in order to ensure unified exercise of the power of reviewing and approving cases of death penalty. Xiao specifically expressed the determination of the Supreme People’s Court to fully retrieve the power of reviewing and approving cases of death penalty for exclusive exercise by itself in 2006, which was briefly granted to provincial level Higher People's Courts. Besides, the Supreme People's Court issued the Second Five-year Outline Program for Reform of People's Courts, which expressly provides that the power of reviewing and approving cases of death penalty will be exclusively exercisable by the Supreme People's Court.

It was reported that the central government permitted earlier this year the Supreme People's Court to newly establish under it an extra three criminal trial divisions particularly designed to review and approve cases of death penalty, and also to increase the establishment of judges with it.

During the current stage, China temporarily has no plan to abolish the death sentence. Therefore, restriction of application of the death sentence and adherence to the principle of making less executions, carrying out executions in prudent way and preventing wrong execution is the policy on death penalty that China consistently sticks to. Retrieval of the power of reviewing and approving cases of death penalty by the Supreme People's Court is a key process intended to unify the regulation of imposing the death sentence and unify the application of judicial standards in meting out capital punishment, which will contribute to procedurally guaranteeing consistency in the application of judicial standards for death penalty, and preventing inconsistency of leniency or harshness in approving cases of death penalty among different regions, and which will be in the interest of practically safeguarding human rights. Establishment of the procedure for reviewing and approving cases of death penalty itself is fundamentally intended to maintain procedural justification.

Since the first Law on the Organization of People's Courts was promulgated in September 1954, attribution of the power to review and approve cases of death penalty has changed quite few times. But this power has been basically exercisable by the Supreme People’s Court or provincial level Higher People's Courts. The system of review and approval of capital punishment in the People's Republic of China was first prescribed in the 1954 Law on the Organization of People's Courts. Under the then historical conditions, this law provided that the power of reviewing and approving cases of death penalty would be jointly exercisable by the Supreme People's Court and provincial level Higher People's Courts.

The 1979 Criminal Law authorizes the Supreme People's Court to review and approve cases of death penalty for immediate execution, and authorizes provincial level Higher People's Courts to review and approve cases of death penalty with a two-year reprieve. In the revision of the Law on the Organization of People's Courts in 1983, the provision of Article 13 that “Cases of death penalty shall be adjudicated or shall be reviewed and approved by the Supreme People’s Court” was changed to the provision that “Besides direct adjudication of them by the Supreme People’s Court, cases of death penalty shall be submitted to the Supreme People’s Court for review and approval. When it’s necessary, the Supreme People’s Court shall authorize Higher People’s Courts in provinces, autonomous regions or municipalities directly under the Central Government to exercise the power of reviewing and approving cases of murder, rape, robbery, explosion or other crimes seriously endangering public security and the public order in which the capital punishment is given. “This change was obviously intended to meet the requirement of the Strike Hard Campaign against rampant commission of crimes at that time, which directly resulted in a conflict between the Criminal Procedure Law and the Law on the Organization of People's Courts in terms of provisions for the power of reviewing and approving cases of death penalty.

In the revision of the Criminal Procedure Law in 1997, the system of reviewing and approving cases of death penalty exclusively by the Supreme People’s Court prescribed by the 1979Criminal Procedure Law was carried forward. But obviously, its systemic conflict with the Law on the Organization of People's Courts in this respect was not settled. In judicial practice, as far as cases of serious crimes including murder, rape, robbery and explosion are concerned, Higher People's Courts are not only in charge of second instance trial of such cases in which they can impose the death penalty, but are also responsible for reviewing and approving such cases in which the death sentence has already been given. The concentrated exercise of both the power to adjudicate cases of death penalty and the power of reviewing and approving cases of death penalty actually turns the procedure for review and approval of the application of capital punishment into something like an empty shell. Viewed from the perspective of the theory of jurisprudence, the Law on the Organization of People's Courts that authorizes transfer of the power of reviewing and approving cases of death penalty to Higher People's Courts is but general national law, which is not in apposition to override or contravene the specific provision of the Criminal Procedure Law as a basic law of the State for exclusive exercise by the Supreme People’s Court of the power of reviewing and approving cases of death penalty.

To reform the existing irrational system of review and approval of the application of capital punishment is a concrete embodiment of efforts to abide by the constitutional provision that “Testate respects and safeguards human rights.” Unified exercise by the Supreme People’s Court of the power of reviewing and approving cases of death penalty and full retrieval of this power by the Supreme People's Court for its own exclusive exercise are in implementation of the jurisprudent theory of respect and lenient treatment by criminal judicature to the human rights of convicts sentenced to death. Death penalty is undoubtedly the severest form of criminal punishment meant to deprive convicts of their life. Therefore, review and approval of the application of capital punishment is a very serious matter involving human life that must be treated with the utmost care. In reality, exercise of the power of reviewing and approving cases of death penalty by provincial level Higher People's Courts means that they simultaneously enjoy both the power of final adjudication of cases in which the death sentence can be imposed and also the power of reviewing and approving cases in which the death sentence has already been imposed. Under such a circumstance, the procedure for reviewing and approving the application of capital punishment lacks the due procedural justification, and review and approval of the application of death penalty will be of no realistic significance.

In my opinion, the power of reviewing and approving the application of death penalty in any case should be exclusively exercisable by the Supreme People’s Court on a unified basis. Probably, unified exercise by the Supreme People's Court of the power of reviewing and approving cases of death penalty may lead to increases in the cost of judicature. But any increase of costs to this effect will be part of the prices payable for realizing judicial impartiality in a society under the rule of law.

To fundamentally solve the conflict of law over the power of reviewing and approving the application of death penalty, it is advisable for the NPC orbits Standing Committee to revise the Law on the Organization of People’s Courts to abolish the provision of AR tide 13 that authorizes Higher People’s Courts to exercise the power of reviewing and approving the application of death penalty. Then, the NPC or its Standing Committee should proceed to declare that the power of reviewing and approving cases of death penalty will be fully retrieved to the Supreme People’s Court. Besides, China's current procedure for reviewing and approving the application of death penalty is yet to be further improved through such approaches as adopting the model of holding hearings and delinking it from administration, which will mean greater transparency for both the plaintiff and the defendant. Adoption of the model of holding hearings will attract the participation of defense lawyers, the prosecution, the defendant, victims another parties concerned, in the interest of discovering “objective truth” and avoiding misjudgment in a maximum way.

In early 2006, the legal community in China initiated the spectacular annual appraisal of major developments of legal proceedings intended to publicize number of highly influential landmark cases. Known as Appraisal of the Top Ten Influential Developments of Legal Proceedings in China in 2005, the event was cosponsored by the Legal Daily newspaper and Allchin Bar Association in cooperation with the School of Law of Tsinghua University, the School of Law of Beijing University, the School of Law of China University of Political Science and Law, the School of Law of the Central University of Finance and Economics, etc. According to results of the appraisal made publican Beijing on January 8, 2006, the following cases were chosen through the appraisal as the Top Ten influential landmark cases in China in 2005the case of She Xianglin; the case of nongovernmental Chinese legal action to demand Japanese compensation for war crimes; the case of corruption of Ma De, Han Guizhou and Tina Fengshan; the case of GU Cheju; the case of Huang Jing; the case of imposition on huge fines nod Kaoliang; the case of a dispute overcompensation for a typical traffic accident in which a speeding Alto car hit woman who was running across the street, on which pedestrians are forbidden; the case of legal action by farmers in Fujian against rights infringement caused by pollution; the case Ohio Jing song versus a railway management bureau over an invoice; and the case of GM Daewoo versus Cherry of China.

In my opinion, the most remarkable characteristic of the annual appraisal of influential landmark cases does not lie in the event itself. Rather, it lies in the publicity of influential landmark cases to the general public. The very value of appraisal of influential landmark cases is the generation of influence of particular significance going beyond the scope of impacts of theindividual cases concerned. It is foreseeable that the appraisal of influential landmark cases new conception temporarily unfamiliar to most people will become better known to the public along with increasing publicity of the annual event.

We need to pay particular attention to the annual appraisal of influential landmark cases. Just as their name implies, influential landmark cases refer to legal proceedings in cases with considerable impacts on society, and are normally typical legal actions that are well known to the general public within certain scope, that arouse extensive public concern, and that are capable of influencing to a certain width and to ascertain depth legislative innovation, judicial reform and people's conception of the rule of law. As far as individual cases adjudicated are concerned, the emergence of influential landmark cases might be considered something accidental. But as far as systemic change is concerned, the birth of influential landmark cases and their generation of influence will both be inevitable. The influence of influential landmark cases lies in their impacts on people's conception of the rule of law, impacts on judges and law enforcement authorities, and also impacts on enacted laws themselves.

Influential landmark cases are a type of rather influential but scarce sources for the rule of law. The whole society, particularly legislative decision making and judicial decision-making organs, need to carefully treat influential landmark cases, and should manage to turn impacts from influential landmark cases into causes and opportunities for systemic innovation in the fields of legislation and judicature. It is advisable to make a good use of the role of news media and give play to the role of jurists and lawyers as two types of non govemmental legal professionals in greatly publicizing the various influential landmark cases, in order to turn them into real and vivid stories for generalizing knowledge about the rule of law.

So far, China has entered an era of upholding legislative civilization and judicial civilization. To upgrade legislative civilization and judicial civilization in China, and to realize the long-term target of building China into a country with the rule of law, we need to actively promote both legislative innovation and judicial innovation, and manage to implement the theory of innovation and take practical steps throughout the whole process of realizing the rule of law in China.快醒醒开学了


 

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