Rule of Law in China: A Comparative Approach

85 Pages·2015·2.57 MB·English

by  Katrin Blasek (auth.)

SPRINGER BRIEFS IN LAW
Katrin Blasek
Rule of Law
in China
A Comparative
Approach
SpringerBriefs in Law
More information about this series at http://www.springer.com/series/10164
Katrin Blasek
Rule of Law in China
A Comparative Approach
1 3
Katrin Blasek
Berlin
Germany
ISSN 2192-855X ISSN 2192-8568 (electronic)
ISBN 978-3-662-44621-8 ISBN 978-3-662-44622-5 (eBook)
DOI 10.1007/978-3-662-44622-5
Library of Congress Control Number: 2014947698
Springer Heidelberg New York Dordrecht London
© The Author(s) 2015
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To Alexander
Contents
1 Introduction ................................................ 1
1.1 Calls for Rule of Law ..................................... 1
1.1.1 Western Calls ..................................... 1
1.1.2 Chinese Calls ..................................... 2
1.2 Motivation and Approach of the Analysis ..................... 5
1.3 Reference of Comparison .................................. 6
References .................................................. 7
2 Rule of Law in Western Civilization ............................ 9
2.1 Foundations for Development .............................. 9
2.2 Core Aspects of the Rule of Law in Western Civilization ......... 9
2.3 Core Aspects of the Rule of Law in Germany, France,
and in the United Kingdom ................................ 11
References .................................................. 11
3 Rule of Law in China ........................................ 13
References .................................................. 17
4 Selected Aspects of Rule of Law ................................ 19
4.1 Separation or Concentration of Power? ....................... 19
4.1.1 Germany, France, and the United Kingdom .............. 19
4.1.2 China ........................................... 25
4.2 Supremacy of Law ....................................... 32
4.2.1 Western Approach ................................. 32
4.2.2 Germany, France, and the United Kingdom .............. 33
4.2.3 Chinese Approach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.3 Protection of Human Rights ................................ 44
4.3.1 Western Approach ................................. 44
4.3.2 Germany, France, and the United Kingdom .............. 45
4.3.3 China ........................................... 48
vii
viii Contents
4.4 Legal Certainty: Mentality of Rule-Making .................... 52
4.4.1 Western Approach ................................. 52
4.4.2 Germany, France, and the United Kingdom .............. 53
4.4.3 China ........................................... 54
4.5 Independence of Courts and Judges .......................... 59
4.5.1 Western Approach ................................. 59
4.5.2 Germany, France, and the United Kingdom .............. 60
4.5.3 China ........................................... 67
References .................................................. 73
5 Conclusion ................................................. 77
5.1 Conclusion ............................................. 77
Reference ................................................... 80
Chapter 1
Introduction
1.1 Calls for Rule of Law
When looking into the younger history1 of China,2 many calls are found concern-
ing, in one way or another, the rule of law. The need to further improve the rule of
law was expressed not only by foreign entrepreneurs, especially by those from the
Western hemisphere, but also by other representatives of the so-called Western civ-
ilization (see Sect. 1.1.1). China officially called expressly or in other ways for
“rule of law,” too (see Sect. 1.1.2).
1.1.1 Western Calls
Since Deng Xiaoping started the policy of reform and opening up in 1978, several
Western institutions have urged China to adhere to the rule of law.
Two prominent policy papers published in 2012 may serve as example. One is
the “Business Confidence Survey” initiated and published by the European
Chamber of Commerce in China (EUCCC). It shows that the interviewees,
European entrepreneurs and companies, consider the “rule of law”3 as the most
important among five top drivers for China’s economic performance in the coming
years.4 The survey shows
The development of the rule of law and more transparent policy-making and implementa-
tion is rated as the most important driver for future Chinese economic growth.5
1 Starting in 1978.
2 P.R. China excluding Hong Kong, Macao, and Taiwan.
3 Followed by domestic consumption, labor costs, unfair competition and monopolies, and the
implementation of environmental regulations.
4 EUCCC (2012), 28.
5 EUCCC (2012), 5.
© The Author(s) 2015 1
K. Blasek, Rule of Law in China, SpringerBriefs in Law,
DOI 10.1007/978-3-662-44622-5_1
2 1 Introduction
Shortcomings of the rule of law6 in China are one of the reasons for nearly a quarter
of respondent companies to consider moving existing investments out of China.7
The other important policy paper “China 2030”8 has been issued jointly by the
World Bank and by the Development Center of the State Council of China (see
further Sect. 1.2). It heralds
China’s economic performance over the past 30 years has been remarkable. It is a unique
development success story, providing valuable lessons for other countries seeking to emu-
late this success9
But the same authors warn Chinese leaders that to continue the economic progress
and
to become a modern, harmonious, and creative high-income society by 2030… China
must change its policy and institutional framework.10
To achieve a sustainable development, the authors of “China 2030” propose six
targets for China’s new development strategy, one concerning the “rethinking of
the role of the state…in the economy.”11 More precisely, to achieve sustainable
growth
the government will need to transform itself into a lean, clean, transparent, and highly
efficient modern government that operates under the rule of law. 12
Both papers name the rule of law as a cornerstone for China’s future prospects.
Like many other policy papers, they do not come up with a definition of the rule of
law. They confine themselves for mentioning constituent elements of it, e.g., legal
certainty.13 These elements will be analyzed and evaluated from a legal point of
view at the respective section of this paper.
1.1.2 Chinese Calls
As shown, the World Bank and one body under State Council of China have
jointly expressed their opinion that sustainable economic development requires
a “government that operates under the rule of law.” Before that, Chinese leaders
themselves have called many times for development of the rule of law as a whole
6 Uncertainty and ambiguity of regulations when doing business in China.
7 EUCCC (2012), 5, 31.
8 The full name of the paper is: China 2030—Building a Modern, Harmonious, and Creative
High-Income Society.
9 World Bank (2012), vii.
10 World Bank (2012), viii.
11 World Bank (2012), 18.
12 World Bank (2012), 18.
13 E.g., World Bank (2012), 20.