Presentation delivered on February 20, 2014 for China's Domestic Politics class at the University of Pennsylvania.

1. Desmond Wee
PSCI229 China’s Domestic Politics
University of Pennsylvania
Symbol of the Supreme People’s Court (SPC)

3. Donald Clarke, Peter Murrell, and Susan Whiting, “The Role of
Law in China’s Economic Development,” in China’s Great
Economic Transformation, (Cambridge University Press, 2008)
chapter eleven, pp. 375-428

4. Problems of China’s Legal
System Today
 Significant gaps in legal structure governing economic
activity
 Lacks a number of institutional features that could be
effective in identifying and reducing the inevitable
gaps and ambiguities
 “Local protectionism”: dependence of courts on local
government and Party leaders
 Corruption

5. Rights Hypothesis
 “…[E]conomic growth requires a legal order offering
stable and predictable rights of property and contract”
However,
 Clarke, Murrell & Whiting (CMW): “…provides little
explanatory power for China.”

6. Functional Substitutes for Formal
Institutions
 Property Rights
 Cadre evaluation system (Lecture 7; Whiting)
 Fiscal system (Lecture 7; Whiting)
 Local government ownership of township and village
enterprises (TVEs)
 Transactions in Goods & Services
 Dual-track system
 Footnote: Transitional institutions vs. Best-practice
institutions (Qian, 2003)

7. Conclusion
 The relationship between legal and economic
development was bidirectional – a coevolutionary
process
 Have formal legal institutions contributed in an
important way to China’s remarkable economic
success?
No, but instead…
 Economic success has fostered the development of law,
rather than the reverse.

9. Jerome Cohen’s Testimony to the Congressional-Executive
Commission on China

10. Criminal Justice
 Death penalty
 Criminal Procedure Law (CPL)
 No warrants
 Arrest
 Search
 (Mostly) no bail/“release under guaranty pending trial”
 Limited right to counsel
 False confessions gained by torture
 UN Convention Against Torture
 Section 306 of the Criminal Law
 Reeducation through labor (“laojiao”)

11. Major Defects
 National People’s Congress (NPC) Standing
Committee (NPCSC) reserves the sole power to modify
legislation; interpret and apply the Constitution
 The Chinese Constitution is not enforced
 No judicial review for courts: invalidating legislation is
prohibited
 Conflict: courts must seek a resolution from a higher-level
legislative body OR rule in accordance with the
lower-level rule

12. Constitutional Review:
The NPC Review Model
 NPCSC
 Law on Legislation
 Sun Zhigang case
 Limited review:
 Administrative Litigation Law
 State Compensation Law
 Supreme People’s Court
 2001 education case “Reply to Qi Yuling”; 2008 update
 [Update:] 2011 SinaWeibo case
 (Independent?) Constitutional Court?

13. Further reading
 Judicial reform: Court orders
http://www.economist.com/news/china/21591210-it-turns-out-torturing-
people-confessions-isnt-all-right-after-all-court-orders
 China’s Constitutional Crisis
http://www.theatlantic.com/china/archive/2013/09/chinas-constitutional-
crisis/279285/
 Citizens’ Rights, the Constitution and the Courts
http://blogs.wsj.com/chinarealtime/2011/09/26/citizens%E2%80
%99-rights-the-constitution-and-the-courts/
 Chinese Judge Expresses Support for Free Speech on SinaWeibo
in Ruling
http://www.businessinsider.com/chinese-judge-expresses-support-
for-free-speech-on-sina-weibo-in-ruling-2011-9
 A Comment on the Rise and Fall of the Supreme People’s Court’s
Reply to Qi Yuling’s Case
http://suffolklawreview.org/wp-content/
uploads/2013/01/Tong_AdvancePrint.pdf