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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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slide4

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

who is the chief
Who is the Chief?

Party Chief

Military Chief

President of the PRC

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

-- Mao

relationships of the central and local governments
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?

name maters
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
international law as chinese law
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

court structure
Court Structure

Application and Enforcement of Laws

  • Court
  • Procuratorate
  • Public Security Bureau (PSB)—Police
under npc
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
court structure12
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)
slide13

Supreme Court

High Court

Inter. Court

Basic Court

Tribunal

court personnel
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.

jurisdiction
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.
process
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.
no jury but people s assessors
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
adjudication committee ac
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.

chief justice s role compared
Chief Justice’s Role Compared
  • Chief Justice in the U.S. (see handout)
judgments
Judgments
  • Limited authority
  • Mechanically apply the law
  • Cheng Kejie Case Vice NPC chairman sentenced to death on corruption charge. See handout.
adjudication supervision as reopen cases
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
procuratorate
Procuratorate
  • Has the same rank as a court
  • Supervisory role
party influence
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 )
judicial independence compared
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 

factors affecting judicial independence
Factors affecting Judicial Independence
  • Lawyers
  • Legal scholars
  • Officials, persons with connections to officials
  • Mediation committees
  • Neighborhood committees
  • Work Unites (Danwai)
enforcement of judgment
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.