Comparative law and justice/China

Part of the Comparative law and justice Wikiversity Project

Subject classification: this is a comparative law and justice resource.

Aquay 19:33, 9 February 2010 (UTC)

Overview

China has the largest population in the world with 1,338,612,968 people (July 2009 est.). 19.8% of its people are under fourteen, 72.1% of its population is 15-64 years old, and 8.1% are age 65 and older.[1] China is the fourth largest country with a total of 9,596,961 sq km of land and water. China is in Eastern Asia and borders the East China Sea, the Yellow Sea, the South China Sea and the Korea Bay. Countries that China borders are Afghanistan, Bhutan, Burma, India, Kazakhstan, North Korea, Kyrgyzstan, Laos, Mongolia, Nepal, Pakistan, Russia, Tajikistan, and Vietnam. The climate in China ranges from tropical in the south, to subarctic in the north. China boasts the tallest mountain in the world, Mount Everest at 8,850 miles. [2] The most populated city in China is Shanghai with 15,789,000 people. The capitol of China, Beijing, is the second largest populated city in China with 11,106,000 people. Third is Guangzhou with 9,447,000 people, followed by: Shenzhen with 8,114,000 people, Tianjin with 7,468,000 people and Wuhan with 7,542,000 people. [3] There is no official religion in China and religion has not been seen as important. In fact, it is only recently that religious beliefs have been more tolerated. [4] Buddhism, Taoism, Islam, Catholicism and Protestantism, are the religions practiced most in China.[5]

Ethnic groups in China consist of Han Chinese at 91.5%, with Zhuang, Manchu, Hui, Miao, Uyghur, Tujia, Yi, Mongol, Tibetan, Buyi, Dong, Yao, Korean, and other nationalities compromising the remaining 8.5% (2000 census).

Languages spoken in China are Standard Chinese or Mandarin (Putonghua, based on the Beijing dialect), Yue (Cantonese), Wu (Shanghainese), Minbei (Fuzhou), Minnan (Hokkien-Taiwanese), Xiang, Gan, and Hakka dialects.

Brief History

China has a long history dating back to 2200 BC. The earliest known dynasty is the Xia Dynasty from 2200 BC to 1750 BC. The next dynasty was the Western Zhou from 1100 BC- 771 BC, then the Eastern Zhou from 771-256 BC, then Spring and Autumn period from 772-481 BC, then the Warring States period from 403-221 BC, then the Qin dynasty from 221-206 BC, then the Earlier Han dynasty from 206 BC-8 AD, then the Wang Mang Interregnum from 8-25 AD, the Later Ham from 25-220 AD, the Three Kingdoms from 220-265, the Dynasties of the North and South from 317-589, the Sui Dynasty from 589-618, the Tang dynasty from 618-907, the Northern Song from 960-1125, The Southern Song from 1127-1279, the Yuan (Mongal) from 1279-1368, the Ming from 1368-1644, and the Qing (Manchu) from 1644-1911. The Republic of China was established in 1911 and lasted until 1949. The People's Republic of China was established in 1949 and is a communist government.

Economic Development, Health, and Education

China is a communist state, however their economy is increasingly changing to capitalism. China ranks third in the world for GDP purchasing power at $8.767 trillion (2009 est). The GDP per capita is $6,500 (2009 est). The GDP is 10% agriculture, 48.6% industry, and 40.5% services (2009 est). Key imports are electrical and other machinery, oil and material fuels, optical and medical equipment, metal ores, plastics, and organic chemicals. Key exports are electrical and other machinery, data processing equipment, apparel, textiles, iron and steel, and optical and medical equipment.

The infant mortality rate is 20.25 per 1000 live births. The life expectancy for males is 71.61 and 73.52 for females. The literacy rate for the country is 90.0%. The literacy rate for males is 95.1% and 86.5% for females. (2000 census)

Governance

China is a communist state. It has a constitution, its "most recent promulgation 4 December 1982 with amendments in 1988 and 1993"

China has a multi-level system. The National People's Congress has the power. The NPC and the Standing Committee make the laws. The State Council creates regulations from the laws made by the NPC and the localities and local government form local regulations.

The National People’s Congress decides to approve a law and then the president publicizes it. The premier has no power to approve or reject laws. All other laws and regulations, administrative and local must submit to the national laws. The National People’s Congress can veto any laws that are not consistent with their own.

Elections

The voting age in China is eighteen and it is universal.

The National People’s Congress is in charge of electing the president and vice president. They serve five year terms and are eligible to be elected for two different terms. The president then nominates the premier and the NPC must confirm the nomination. The next presidential election will be in March of 2013.

The NPC is called Quanguo Renmin Daibiao Dahui. It has 2,987 seats. The municipal, regional, and provincial people’s congresses elect the congress with the People’s Liberation Army. They serve five year terms. Only communist party members and affiliates and sympathizers are elected.

Local elections for villages are taken by direct vote.

China’s top court is the Supreme People’s Court whose judges are appointed by the NPC. The Lower People’s Courts have higher, intermediate, and basic levels.

Judicial Review

There is no judicial review in China. The NPC is alone in charge of reviewing its laws.

Courts and Criminal Law

"China's legal system is based on a civil law system; derived from Soviet and continental civil code legal principles."

The Supreme People's Court is the highest court in China. It handles cases that affect the entire country. They also hear appeals from the Higher People’s Courts. It interprets statutes but the interpretations must be consistent with the government's communist principals.

The Lower People’s Courts have higher, intermediate, and basic levels. There are also Special People’s Courts who deal with military, railway transportation, maritime, and forestry courts.

The trial process is an inquisitorial one. A procurator initiates the investigation. A panel of judges and laypeople decide the case. They also assist in the inquisitorial process. There is no presumption of innocence and no right to silence in China.

China offers free health coverage to its people. The system works in urban areas but not in rural areas. There are a lack of medical personnel and resources in rural areas.

China has just reformed its Tort law to allow for punitive damages in some cases.

Punishment

The Criminal Law provides that Principal Punishments are classified as control, criminal detention, fixed term imprisonment, life imprisonment and death penalty.

Control is what they call punishments for minor offences. It is similar to our probation system; they offenders are monitored in their daily lives. Criminal detention is used for relatively minor offenses on term of six months to fifteen years. The offender is imprisoned locally and may go home for a couple of days a week and hold a job. A fixed term for imprisonment which would include life imprisonment is sent to a labor prison for “reform.” China also uses the death penalty. China executes more people than any other country in the world.

"Death penalty statistics continues to be regarded as a state secret, making it difficult to assess official claims that the reinstatement of Supreme Court review had reduced the number of executions. Based on public reports, Amnesty International estimated that at least 470 people were executed and 1,860 people sentenced to death during 2007, although the true figures were believed to be much higher."

Other punishments may include fines, confiscation of property, and deprivation of political rights.

There are 118 per 100,000 people imprisoned in China.

The prison conditions in China vary. Many if not most are overpopulated and filthy with little control over heat/and hot water.

Legal Personnel

China’s justice structure is informal. The people of China do not rely on lawyers like Americans do. As of 2002 there were only 110,000 practicing lawyers in China. China has the People's Mediation committee (PMC). This is composed of 10 to 20 people elected to three year terms. These committees carry out an informal sanction process when someone has committed an act disruptive to society.

Law Enforcement

China has a multiple coordinated police structure. It is a quasi-military police model. The police serve the interest of the state. It is more traditional and intelligence led in style.

China has a Ministry of State Security and a Ministry of Public Security. The Ministry of Public Security is the top branch of law enforcement in China. It overseas all domestic activity. It regulates police operations and prisons. It has separate departments for communications security, economic security, and political security. It also regulates lower public security stations which interact with the public daily. Under its control is also "The People’s Armed Police Force" which has 1.5 million people in 45 different divisions including police communications, guards for government buildings, internal security police, and border defense.

The police are educated in three different formal schools. One is police training schools that provide basic training (jingcha xue xiao). Another is post secondary colleges (jiangcha zhuanke) and the third is higher education(chengren jiaoyu). There are also four different levels to police training and education; the secondary school (middle level) technical education (zhongdeng zhuanke),post-secondary (upper level) professional education (gaodeng zhuanke jaoyu), police undergraduate education (gongan benke jiaoyu), and police graduate education (jingcha yinjiusheng jiaoyu).."

There are three police universities - Chinese People’s Public Security University (Zhongguo Renmin Gongan Daxue), Chinese People’s Police Officers University (Zhongguo Renmin Jingguan Daixue) and Police Criminal Police College (Zhongguo Xingshi Jingcha Xueyuan) The Ministry of Public Security is responsible for the planning and organization of police training and education nation wide.

To be eligible for the Ministry of Public Service schools, one must be between 18 and 22, or a serving officer with more than 2 years in, not older then 28 and middle high education, or an officer with a high school certificate or equivalent who has served with distinction. They must uphold the Communist Party ideology and be law abiding. The Communist party is responsible for the content of education.

Nation Master ranks China number 78 out of 159 countries for most corruption which takes in to account police corruption.

The Chinese People’s Liberation Army is the largest military in the world. Service is mandatory for males, however the government has not needed to enforce this. The Army is under the Command of the Central Military Commission of the Chinese Communist Party and is seperate from the public police force.

Crime Rates and Public Opinion

"China remains one of the countries with the lowest crime rate in the world. Of all the crimes reported, theft accounted for about 80% of crime." However according to the Pew Global Attitudes Pole six in ten Chinese citizens see crime as a major problem.

The Chinese Ministry of Public Security publishes crime statistics.It is assumed that crimes that are not relevant to human rights issues are somewhat reliable.

Arson: 4,585 cases (21.3% decrease over the same period last year) Bombing: 543 cases (17.7% decrease) Murders: 11,000 cases (13.6% decrease ) Rape: 15,000 cases (5.8% decrease) Assault and battery: 65,000 cases (0.1% decrease)

China justifies punishment with work based rehabilitation. If you are physically able then you are required to work while in prison in order to be reformed. There is some education given in prison but not a lot.

Minority populations are more likely to be imprisoned and to not have due process.

Citizenship Rights

All ethnic minorities in China have citizenship. Citizenship is given: if born in China with at least one Chinese parent, if born outside of China to a least one Chinese parent with citizenship, or if born in China to stateless parents. Foreign nationals lose their citizenship, state officials and military people cannot renounce their citizenship. Foreigners can become citizens if their relatives are Chinese, if they live in China, and if they have other legitimate reasons.

Family Law

China has a restriction on the number of children a family can have. Since this restriction has been imposed, the female population has dropped. In the 0-14 age population 53.1% are male and 46.8% are female. (percentage does not add to 100 due to rounding errors)

The Peoples Republic of China started allowing divorces in 1949. Many women who tried to take advantage of this were killed or ended up committing suicide. From 1949-1976 divorce rarely occurred. Recently it has become easier and the divorce rate has gone up to 1.4/1000 people which has risen since 1990.

Divorce can be obtained after mediation has failed if there has been bigamy and extra marital relationships, abuse or abandonment, habitual gambling and drug abuse and other vices, when a couple has lived apart for two years in an unloving relationship, or if other circumstances lead to a failure of a loving relationship.

Even though bigamy is ground for divorce, polygyny is practiced in China but not so often due to the imbalance of women to men and the income of the husband. It occurs more in the upper middle classes.

Due to the one child policy in China, many of the children put up for adoption are female. Families prefer sons and often give up their children officially and unofficially. Many adoptions are to foreign families.

There is currently no inheritance or gift tax in China. Inheritance law is covered under The Civil Law, The Property Law, The Company Law, The Marriage Law, The Succession Law and The Foreign Investment Enterprise Law. Inheritance can be passed down through statutory succession, will, and legacy. Highest precedence is husband or wives, then children or parents, then brothers and sisters and grandfather and grandmother. Residential land is not passed on, but the right to use it can be transferred to family members. Men and Women both have full inheritance rights.

The Chinese family is changing with their countries economic growth. Traditionally, parents chose wives for their sons and romantic love was not allowed. Now children have more of a say in whom they marry. The husbands and fathers have authority over females in the family. The males make the decisions.

Social Inequality

China has a lot of economic inequality. The “wealth gap between the urban and rural communities are among the highest in the world.” The average city dweller earns $1000 a year compared to rural people who earn a little more than $300 a year on average. An urbanite also lives about five years longer than a farmer.

There is also educational inequality. “In Tibet, only half of the population can read and write while over 97 percent Chinese living in Beijing, Shanghai or Tianjin are literate. At national level, illiteracy rate for women is more than double that of men." .

There is some question about the rate of inequality of females in employment. Some suggest that females are still being discriminated against while others say it is not happening so much anymore.

Human Rights

China is notorious for its human right violations. The US State department sites China in its 2009 report for multiple violations. They include restrictions on freedom of expression, assembly, and association, torture, execution, violence against women, repression of religion, and discrimination against gays and minority populations.

The one child policy in China has caused many human right violations including reported abuses in its enforcement. These abuses include bribery, coercion, forced sterilization, forced abortion, and possibly infanticide, with most reports coming from rural areas.

The government continues to repress the Tibetans, Mongolians, and the Uighurs. The government harasses lawyers who try to defend those who threaten the communist party. After the riots in Xuar, the government sentenced many Uighurs to long prison terms and death without due process. The government has cut off the international phone and internet connections in Urumqi.

China has also violated the right of Tibetans and continues to do so. Authorities have committed extrajudicial killings, arbitrary arrests, torture, and extrajudicial detentions. Any support for Tibetan independence is criminal, violent or not.

The Chinese government has active control over the information in China. Much of what the government says is not reality. People are unable to speak out against the government without punishment. All communication is heavily monitored.