The People’s Republic of China is often the protagonist of international news, occupying a prominent place in the world but also political order. China, the most populous country in the world, is often protagonist of several controversies, especially in issues concerning human rights and freedom of the individual. However, to better understand the characteristics of a State, it is necessary to learn about its body of law.
The Chinese Constitution
The Chinese Constitution is divided into four chapters: general principles, rights of citizens, organization of the state, and symbols of the Chinese nation.
The Chinese Constitution, last amended in 2018, is the primary source of law in China, to which all other normative acts are subordinate.
To ensure the legitimacy and fairness of the laws found within the Constitution, there is no competent judicial body. The Chinese state is founded on the Leninist theory of unity of state powers and actually centralizes legislative, administrative and judicial powers in the hands of the National People’s Congress, which represents the will of the people. In reality, the deputies that make up the NPC are not directly elected by the citizens, but by the popular assemblies, and in a minority by the democratic organs of the armed forces. The NPC meets in plenary form (with almost 3000 members) only once a year and performs the main legislative functions, has the power to elect or remove the highest state offices, such as president or vice-president, approves economic plans or the establishment of local authorities in the territory, can declare a state of war and finally controls the work of the Standing Committee (in operation throughout the year and composed of only 175 members). The NPC, with the consent of two-thirds of the number of deputies, can make amendments to the Constitution and fundamental laws, while the Standing Committee is allowed to approve or amend only ordinary laws.
The text of the Chinese Constitution provides citizens with a wide range of political, personal, economic and social rights, provided that the exercise of these freedoms does not harm the collective interest, as specified in Article 51:
“In exercising their freedoms and rights, citizens of the PRC shall not be detrimental to state, social and collective interests, or to the legitimate interests or freedom of other citizens”
In fact, individual rights in Chinese law are not understood in universal terms, but are subordinated to the interest of the community and state security. Although the Chinese government is often reprimanded for its failure to protect human rights within its territory, it continues to reject the imposition of a universalism of rights, considering it a veiled form of Western neocolonialism, and foreign interference in its domestic policies that the country is not willing to accept.
The Civil Code
China’s Civil Code - composed of more than 1200 articles and approved on May 28, 2020 - went into effect on January 1, 2021. Prior to the recent approval of the modern body of laws, China did not have a single code of law, but rather several major laws and various secondary regulatory acts, which is a serious deficiency for a country with such an international reach and the goal of attracting more and more foreign investment. In past years, the Chinese civil code seemed to follow the Soviet mould of the 1950s, but with a deeper analysis it has been possible to note more Japanese influences and the Roman-Germanic tradition, including, however, its own national doctrine; references to Anglo-American common law are more sporadic. Compared to modern European models, unfortunately, the Chinese Civil Code is approximate, with frequent limiting clauses emphasizing public interest, social protection and state maintenance.
To date, the modern Chinese Civil Code is an important tool for commercial contracts, definition of collective and private property, environmental liability and other issues. Being part of the process of research and drafting of the Chinese Civil Code, which began in the 1980s and ended after about twenty years, we can recognize an important Italian contribution, in particular of the jurist and academic Oliviero Diliberto - professor of Roman Law at Sapienza University and Zhongnan University of Economics and Law in Wuhan -, who contributed to transmit the principles of Roman Law for the formation of Chinese jurists able to write a legislative framework that represents the right combination of Roman tradition and Chinese Culture.
* For more in-depth information, see the book Diritto dell’Asia Orientale, edited by Renzo Cavalieri, Libreria Editrice Cafoscarina, 2019.