The rule of law or rule by law? : legal reform versus the power of the party-state in the People's Republic of China, 1978-2002

• Main Author: Li, Jiefen
• Published: University of Edinburgh 2005
• Subjects: 340
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.653873

The present research is devoted to a study of the ongoing legal reform in contemporary China with special reference to its rule of law (<i>fazhi ROL)</i> project. The aim of the reform is to build China into a modern state with a legal system suitable for a market economy, and the key to this reform is to get the party-state power under control. Within the current political framework, however, a socialist rule-of-law system with Chinese characteristics, which is designed to strengthen the party-state power rather than weaken it, is no other than a legalist rule by law (<i>fazhi, </i>the legal system) with the Party-state remaining above the law. This is the fundamental cause for the frustration and constraint for implementing the rule of law. This thesis is divided into six chapters with the first one serving as a general introduction to legal reform from the late 1970s up to 2002 and the debates about the model of the rule of law. The second chapter concentrates on China’s administrative legal regime with focus on the following three issues: administrative power, principles of administrative rule of law and the judicial control of administrative power. The following two chapters are devoted to a critical review of the abuse of administrative power by Party and government officials, based on a case study of the frequent infringement of fundamental human rights in China. Chapter five examines the problems with the Chinese judiciary under the PRC political system, with a view to exploring various reasons for its inability to prevent arbitrary action by the Party-state, to safeguard the rights and interests of the individual and enterprises, to readdress social injustice, and to resolve disputes arising from market economic activities. Chapter six echoes Chapter one in that an investigation is conducted of Chinese legal culture and tradition and their influence upon legal environment in contemporary China. Finally, a conclusion will be made on the dilemma of Chinese legal reform through a summary of problems with China’s legal reform.