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Central Government. US Government Structure . CCP in perspective. Mr. Hu, Secretary General Central Politburo (Standing Committee) Central Committee National Party Congress The Chinese Communist Party (CCP). NPC and its Standing Committee. Other Institutions . Who is the Chief? .

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CCP in perspective

  • Mr. Hu, Secretary General

  • Central Politburo (Standing Committee)

  • Central Committee

  • National Party CongressThe Chinese Communist Party (CCP)

NPC and its Standing Committee

Other Institutions


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Who is the Chief?

Party Chief

Military Chief

President of the PRC

“Political power grows out of the barrel of a gun.”

-- Mao


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The 10th NPC that elected the New Central Government, March 2003


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Relationships of the Central and Local Governments

Principle: Democratic Centralism

  • The individual is subordinate to the group;

  • The Minority is subordinate to the majority;

  • The Lower is subordinate to the higher level;

  • The Local is subordinate to the central.

    Any problem with this principle?


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Name maters

  • NPC ---Basic Laws

  • NPC (NPCSC)---Other Laws

  • State Council---Admin. Regulations

    • Ministries---Ministerial Rules

  • Local NPC---Local Regulations

  • Local Gov---Local Admin. Rules

    • Local Dept.---Local Dept. Rules


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International law as Chinese law

  • Self Executing

  • None Self Executing

    • International Covenant on Economic, Social and Cultural Rights

      China U.S.

      Signature: 10/27/1997 10/5/1977

      Ratification: 3/27/2001 NO

    • International Covenant on Civil and Political Rights

      Signature: 10/5/1998 10/5/1977

      Ratification: NO 6/8/1992


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Court Structure

Application and Enforcement of Laws

  • Court

  • Procuratorate

  • Public Security Bureau (PSB)—Police


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Under NPC

  • Cont. 126: judicial independence blue p.174

  • Cont. 128: Court reports to NPC

  • Cont. 62 (7), 63 (4): NPC appoints or removes judges.

  • Cont. 124: 5 yr Term, no tenure


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Court Structure

  • Four levels:

    • Supreme People’s Court (SPC)

    • High People’s Court (HPC)

    • Intermediate People’s Court (IPC)

    • Basic People’s Court (BPC)

      • People’s tribunals

  • Divisions within a court

    • Criminal

    • Civil

    • Economic

    • Administrative

    • IP (some courts)


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Supreme Court

High Court

Inter. Court

Basic Court

Tribunal


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Court Personnel

  • President (appointed)

  • Vice president (civil servant)

  • Chief judges (civil servant)

  • Deputy chief judges (civil servant)

  • Assistant judges (civil servant)

    The qualification for being judges is low.

    Paid less.

    Limited authorities as compared with U.S. judges.


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Jurisdiction

  • Basic People’s Courts

  • Intermediate People’s Courts, among others---

    • Death penalty

    • Cases with foreign elements

  • High People’s Courts

  • Supreme People’s Courts

    • Discretion

    • Theoretically can be court of first instance, but rare in practice.


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Process

  • Two trials to complete a case

  • Collegiate bench of three or more judges

    • Criminal cases: 1-1.5 months

    • Civil Cases: 6 months, or 3 months in expedited process

    • Procuratorate can protest court judgment.


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No Jury, but People’s Assessors

  • Appointed and paid by the Court

  • Five years appointment

  • Qualifications: upholding con. Good health, college degree, good ethics, no criminal record, not holding government office

  • Training

  • Equal voting rights with judges

  • Cases with great impact, or as requested by parties


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Adjudication Committee (AC)

  • OLPC Art. 11

  • Judgments of a court are not valid without the final approval of the president or the chief judge of a division of the court.

  • AC consists of the president, chief judges and senior judges.

  • The purpose of AC is to review difficult cases.

    AC may decide a case without reviewing files; AC may decide a case that should be heard at the lower court.


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Chief Justice’s Role Compared

  • Chief Justice in the U.S. (see handout)


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Judgments

  • Limited authority

  • Mechanically apply the law

  • Cheng Kejie Case Vice NPC chairman sentenced to death on corruption charge. See handout.


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Adjudication Supervision (AS)-Reopen Cases

  • Not normal appeal process

    • Normal appeal

      • Civil—judgment 15; order 10

      • difference between judgment and order see: CPL art 138 blue 75

      • Criminal-judgment 10; order 5

  • Who can plea for AS?

    • Parties

    • President of the Ct.

    • S. Ct.

    • Procuratorate

  • Criminal P.L. art. 203-205 blue p. 282

  • Civil P.L. art. 177-188 blue p. 81


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Procuratorate

  • Has the same rank as a court

  • Supervisory role


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Party Influence

  • Political-Legal Committee consists of the president of court, the president of procuratorate, and the head of PCB.

  • Influence weakened?

  • Through normative documents, which clearly override law (eg. Tuojiang Pollution Accident )


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Judicial Independence Compared

  • Court budget

    http://www.npr.org/templates/story/story.php?storyId=4598172 (Audio Clip)

    Supreme Court, Congress Clash on Rulings

    by Nina Totenberg 


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Factors affecting Judicial Independence

  • Lawyers

  • Legal scholars

  • Officials, persons with connections to officials

  • Mediation committees

  • Neighborhood committees

  • Work Unites (Danwai)


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Enforcement of Judgment

  • Court in charge of enforcement

  • Low rate: 40 %

  • Local Protectionism

    • Guangdong company sought enforcement of a $900,000 judgment against a Hainan company in 1996. Hainan court suspended the judgment with out explanation.

  • Judgment on Sale, jailed for seeking enforcement, etc.


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