Current PhD Projects
Chinese Courts as Lawmakers
Research Assistant, Institute of East Asian Studies, University of Cologne, pczoske(at)uni-koeln.de
This thesis argues that Chinese courts are an integral part of a political-legal system that is based on interacting cycles of varied forms of policy- and law-making and includes a wide range of political and legal actors. Through their various judicial activities, Chinese courts serve as both political actors and law-makers. When adopting reform plans, the Supreme People’s Court functions as a bridge between the Chinese Communist Party (CCP) and the National legislature by specifying party policies and providing a legal framework for the enactment of formal laws. When issuing judicial interpretations, judicial opinions or guiding cases, the courts act as quasi-legislators. The interpretations, opinions and guiding cases are general in nature and are sufficiently precise to allow direct application. In practice, they are applied as though they were legal norms enacted by competent legislative bodies. The courts also act as quasi-legislators when they jointly issue legal documents with other state or party institutions that are then applied as if they were regular legal norms. If such documents are classified as legal norms, law-making processes based on coalition-building among party and state institutions would characterize the interaction between politics and laws within China’s legal system. Operating under the assumption that Chinese courts function as both political and legal actors, this thesis attempts to investigate how the courts are shaping and organizing China’s constitutional and political-legal system through their diverse judicial activities. By issuing reform plans, building law-making coalitions with other state and party institutions and issuing their own judicial interpretations, opinions and guiding cases, the courts construct a framework for the operation of the constitutional political-legal system in China’s one-party state. They redefine the CCP’s role within this system by merging the CCP’s politics with laws and jurisprudence; however, they also specify other legal actors’ roles by interpreting and developing laws and regulations through coalition-building, judicial interpretations, opinions and guiding cases.
The Implementation of Fair Trial Rights in the Chinese Criminal Justice System
Over the past two decades, China’s criminal justice system experienced a great transformation. Recent legislation protects the rights of citizens of the People’s Republic of China and provides fair trial rights – fair trial rights or the right to a fair trial is one of the most important fundamental human rights. It can be divided into several basic rules and guarantees. One aspect of the right to a fair trial is the presumption of innocence. Whether the presumption of innocence implicit contains the right to silence is controversial. Yet, the right to silence is recognized by the international community. The presumption of innocence is also deeply interwoven with the right against self-incrimination. However, institutional arrangements and forces in China’s criminal justice system heavily influenced the impact of legal reforms to the extent that the current ‘implementation gap’ is evident. With an inquisitorial system in criminal proceedings prevailing over centuries, the presumption of innocence and therefore the idea of the right to silence was alien to China’s legal system. Therefore, legal scholars are sceptical if a simple adoption of legal principles, which contradict with societal values in China or current conditions, is generally possible. The continuing widespread use of illegal methods to obtain confessions or testimonies of witnesses indicates that the police ignore rights of criminal suspects during interrogation. Due to a lack of a comprehensive system of evidence law, prosecutors still rely on confessions to generate convictions. To ensure the right to defence, the Chinese government enhanced the role of lawyers. In practice, however, the legal profession is still regarded as a weak institution compared to the more powerful investigation and prosecution authorities. By analysing dynamics of institutional forces and applicable legislation and conducting expert interviews, this dissertation thesis examines causes for the lack of implementation of legal provisions providing fair trial rights. Furthermore, this thesis attempts to draft an individual approach and possible solutions for the implementation of legal reforms in China.
Chinese Positions on the Use of Force by States
Project Associate, International Affairs Division, Stiftung Mercator, alehrfel(at)smail.uni-koeln.de
In recent years, new and multifaceted challenges threatening regional and global security have emerged. The system of collective security with the UN Security Council at its core remains a permanent subject of criticism. Additionally, on-going violent breaches of regional and global peace by non-state actors not only means an immanent threat for the international community but also fuels the need for clarification by international law mechanisms. China’s state practice and theoretical positions of Chinese scholars on the use of force in international relations are the focus of this doctoral project. This includes topics such as the threat of using military force, the use of force by non-state actors and the issue of humanitarian intervention. Being a Permanent Member of the UN Security Council and one of the largest contributors to UN peacekeeping missions, the People’s Republic of China represents a major player in global security. Yet, while its economic outreach is high, China is far more cautious in allowing the use of force in international conflicts and rather refers to the pivotal pre-eminence of the principle of state sovereignty. Hence, as China’s rise affects the current US-led global order and poses a challenge for Western states, an in-depth understanding of Chinese positions on international law is vital. Facing an increasingly complex international security situation and China’s rising importance for global order, this doctoral project intends to close the academic void by contributing an analysis of Chinese positions on the use of force by states as an urgent issue in public international law.
Establishment of a Unified Property Management System in China – Possibilities and Limitations of Legal Transfers
Anna Sarah Malis
Project Manager, China Central Consultants GmbH, email@example.com
A specific feature of Chinese Law is the separation of land ownership and ownership in buildings and the registration of the rights relating to them at separate authorities. The missing connection of those authorities has led, for example, to multiple registrations of the same property or building, because the points of time of the registration often differ greatly. In order to implement an improved property protection, the real property law was adopted in 2007. The Chinese legislator heavily relied on the German legal systems while drafting this law. Furthermore English and US-American influences can be found. As the legislator chose to adopt rules and principles from different legal traditions, the real property law does not indicate clearly what kind of property registration system would be the most suitable one. By using the example of the unification of the register authorities in China, the study answers the question to what extent law from other jurisdictions can be transferred into Chinese law. Based on legal-historical observations, the German land registration system and thus the continental-European legal system may serve as a model of building a property registration system. However, the Chinese legislature could also use the Torrens-system for orientation, which is used, amongst others, in England and Australia. However, a more pluralistic approach to legal transfers could also lead to a model of its own kind.
Courts and the Public in China
Public participation in court trials acts as an important element of the justice system in many national legislations: Especially in the area of criminal law the public participates in the ruling of courts, for example as a jury. The courts on the other hand try to win the public over to their side, for example through public relations work. The description of the relationship of courts and public in China is the objective of this work. In a first step, the historical dimension of the topic will be examined: What was the role of the public in the justice system in the past, for example under the Qing dynasty, during the Republic of China or under Mao? Following this chapter, a closer look will be taken on the current situation of public participation in court trials, where different forms of participation are observable: The criminal procedure law requires witnesses to assist the authorities when enforcing the law. Other elements shaping the relationship between courts and public consist of participation in juvenile trials, where the principle of publicity generally does not apply due to the protection of minors. Local experiments with juries in court trials pose yet another research item in the dynamic field of public participation in the justice system. There are, however, other, arguably more informal channels the public can use to participate in court trials, e.g. petitions or pressure from the media. Lastly, the courts in China also take measures to influence the public opinion towards a more positive view when it comes to the justice system. By examining the relationship between courts and public the work aims to deliver another element to complete the picture of the environment Chinese courts exist in.
The Legal Framework for Skilled Migration to China
Eva Lena Richter
Beginning with China’s accession to the WTO in 2001, the numbers of foreigners coming to China have risen. The scattered and rudimentary legal framework that dated back to the 1980s was increasingly seen as the major obstacle for controllable foreign immigration. The legal revision process started in 2012 with the adoption of a new Exit-Entry Law. Building on it, the Chinese government has revised many processes and regulations concerning foreigners’ stay and work conditions, starting with the new Exit-Entry Law and arriving at a categorisation approach towards foreign workers in 2016. One can expect further additions to the framework in the near future, most prominently a guiding catalogue for labour market demand concerning foreign migrants. The categorisation of foreign work migrants introduced in 2016 stresses attracting “highly skilled foreigners” while it aims to control “regular foreigners” and restricts entry and work of “low skilled foreigners“. As the legal framework evolves and the implementation proceeds, the complexity of the legal framework for foreigners wishing to or working in China increases since presently there are several different laws that govern foreign workers in China.
This dissertation project has the objective to present the current legal framework for skilled migration to China and its implementation, including different skilled migrant groups as well as general and specific regulations for them. By this, the dissertation project provides a concise overview of the legal regulations and laws concerning skilled migrants and shows how the implementation is progressing. Furthermore, it attempts to critically analyse the major profiteers as well as the losers of the new framework.
Judicial Control of Administrative Actions under the Revised Administrative Litigation Law in China
Nina Rotermund, M.A., LL.M., LL.M.
Fellow of the Konrad-Adenauer-Foundation
The Administrative Litigation Law (ALL) in China was revised in 2015 to solve the problems with case registration, adjudication and enforcement. The ALL gives citizens a remedy to sue the state, but ever since its initial enactment in 1990, an effective implementation has been impeded due to a weak position of Chinese judges being dependent on local governments in terms of salary, promotion, and funding. However, the new administrative litigation law seems promising as it provides some means of control for judges to encounter noncompliance and resistance by local authorities and plaintiffs. These means can be differentiated in those that affect the pre-trial phase of case registration, the trial process with the hearing and the post-trial phase of the enforcement of the judgment. At pre-trial stage, basic people's courts face external interference from local authorities. That is why in the revised ALL, the jurisdiction of intermediate people's courts was considerably broadened in first instance trials. During the hearing, the new regulations now demand that the heads of the administrative departments are present and if they do not show up, the judge is free to publish the officials’ misbehaviour. This also applies if local authorities refuse to enforce the judgment. The judges' strategies to encounter noncompliance and resistance by local authorities and plaintiffs are the main focus of this project.
The Guiding Cases System of the Chinese Supreme People’s Court
The guiding cases system was first brought up in the Second-Five Year Reform Programme for the People’s Court of 2005. It is aiming to “unify the legal applicable standards, to guide the work of lower courts, to enrich and develop legal theory”. Guiding cases are selected and edited by the Supreme People’s Court (SPC). They process a standard form, including title, keywords, main points of adjudication, related legal rules, basic facts of the case, results of adjudication and reasons for adjudication. According to the Notice of the Supreme People’s Court on Issuing the Provisions on Case Guidance of 2010, the lower courts shall consult the guiding cases when they decide the similar cases. Before the guiding cases system, the SPC has already used “typical cases” to emphasize its opinions on certain type of cases. Since 1985, the SPC has published cases on the Supreme People’s Court Gazette in order to introduce judicial work and legal system to the public. However, the SPC does not intend to vest binding effect de facto or de jure in typical cases. Although the SPC indicates that the guiding cases shall be consulted, the guiding cases have so far not come to the expectation of unifying the application of law. Due to a lack of supporting measures to carry out provisions of guiding cases system, many judges in lower courts do not use guiding cases to reach a verdict. The procedure of the adoption of guiding cases is different from the Anglo-american case law. The SPC establishes an office in charge of the guiding cases selection. The lower courts can also submit the recommendations of cases. Moreover, deputies of National People’s Congress (NPC), members of Chinese People's Political Consultative Conference (CPPCC), experts, lawyers and others concerning the judicial issues can recommend cases to the original courts. All the selected guiding cases should be already legally effective judgement. In order to have a profound influence of the judicial practice, there should be a number of guiding cases covering various fields of law. Nevertheless, the reform of guiding cases still faces many resistances from different aspects. Unlike judicial interpretations, the SPC can directly release guiding cases without seeking for opinions of NPC, which can be considered as a threat to the legislator power. The dissertation thesis focuses on the development of the guiding cases system, its legal status in the Chinese legal system, the procedure for adopting guiding cases, the resistance to the guiding cases system reform, the implications for the politics of the SPC in relation to other state organs as well as the effects of guiding cases on the development of various fields of law.
The Chinese Social Credit System and the Protection of Personal Data
Li Xu 李旭
The Chinese Social Credit System (‘SCS’) already emerged in the 1990s. At that time, it was intended to serve as a powerful instrument to drive Chinese market-economic reforms, and its structure resembled that of Western social credit systems. Its direct function was to solve trust problems in commercial transactions, and to develop the modern credit economy. However, as of 2014, the SCS has witnessed profound changes in its implication and has become a state-dominated social project with ‘Chinese characteristics’. Its core idea is to improve the integrity/credit level of the Chinese society; its concrete goal is to ensure that people can comply with generalized social norms, such as business contracts, legal regulations, moral rules, political policies etc. The modified SCS therefore aims at evaluating and regulating Chinese peoples’ behavior by combining personal data and one general incentive mechanism, which largely relies on modern information technology and miscellaneous punishment measures. From the beginning of the 21st century on, personal data protection is increasingly gaining attention from Chinese legal scholars and the national legislator. Yet, to the present day, there exists no unified national law, but rather scattered, outdated legal provisions that are inefficient in judicial practice. This dissertation will examine the nature and the development of the SCS, the reason for its emergence and acceptance, as well as the motive behind its implementation. It will analyze legal issues on personal data protection arising from the SCS, and provide concepts related to problems on personal data and individual rights protection, such as the right to privacy and the right to know. It will also reflect the SCS as an approach for social governance from a constitutional perspective.
The Legal Conscience of a Rising Power – Chinese International Lawyers Between Post-Colonialism and Nationalism: 1979-Present
Research Assistant, Institute of East Asian Studies, University of Cologne
Current accounts of China’s rise in international law seem to alternate between two sharply contradicting views: one of China as an apologetical objector to the post-Cold-War international legal order, constantly condemned for its allegedly negative human rights record, its supposedly ‘conservative’ and ‘formalistic’ stance on matters of international law-making and dispute resolution; or, more recently, for its expansive policy along its maritime borders – and one of an essentially peace-loving developing state and natural leader of the Third World. Both views, I claim, are one-sided if not analyzed in historical perspective. This thesis argues that one can only understand the current stance and professional identity of Chinese international lawyers if the two conflicting traditions of international law scholarship in post-Mao China and their inherent tension are accounted for: an affirmative, post-colonial internationalism on the one hand; and an inward-looking form of Chinese exceptionalism on the other. However, the origins of this chasm must not be sought after, as is the case in recent research, in a deep-historical fashion which claims a continuity of Chinese attitudes toward international law since the 19th century. Rather, it is the result of a fundamental shift of the international legal order itself since the watershed year of 1989. This change, as characterized by a turn from the centrality of state sovereignty to the criticism thereof, constituted a sharp break with the post-colonial legal order of the late Cold War era. An era, that is, which was formative for the current Chinese discipline of international law both institutionally, personally, and conceptually – and an era which calls for a comprehensive re-appraisal as the constitutive phase of the Chinese discipline. A critical, non-Eurocentric account of China’s international law scholarship surely needs to appreciate the progressive and internationalist elements inherent in this ‘post-colonial legacy’. Insofar as China grows out of its acquired role as a developing Third World state, however, it becomes increasingly questionable if it still exhibits such internationalist sentiments. One must therefore further ask how far this post-colonial identity of Chinese international lawyers can serve as a ‘legal conscience’ to a rising China.
The Application of International Law by Courts in Greater China
Borui van Oosterhout
Under the current trend of globalization, the scope of domestic courts in accepting transnational or foreign-related cases is expanding, to include such areas as international trade and investment, human rights, environmental protection, and criminal and administrative cases. With the penetration of international law into the domestic legal system, the extent to which domestic judges can apply international law as a basis for judgment in the trial of domestic cases also has become an issue warranting discussion. On the one hand, acceptance of transnational cases by domestic courts, especially those involving national sovereignty interests, is not only a matter of international law but a sensitive international political issue. Thus, domestic courts face considerable problems and challenges in the acceptance of such transnational cases, particularly in terms of balancing issues of state immunity, principles of state conduct, and national sovereignty. On the other hand, when attempting to apply international law in domestic courts, the relationship between the two systems of law may not always be clear: there may be ambiguity concerning the hierarchy of international law in the domestic legal system and the legal effect of international law in domestic judgements. As far as the available literature is concerned, commentators typically analyze the relationship between domestic law and international law, and the application of international law in Greater China (including Mainland China, Hong Kong, Macau, and Taiwan) at the theoretical level. This dissertation attempts to conduct an in-depth research in the issue of how contemporary courts actually apply international law, and the approaches taken in real terms in domestic application of international law in Greater China, based on current case law in four regions across the Taiwan Straits. This will provide a relevant and significant perspective for analysis of the approaches proposed by scholars, and of whether they are in reality achievable. Furthermore, the research would address the attitude and role of Hong Kong, Macau, and Taiwan with respect to international law, as special regions in the international community. By investigating these regions, the proposed research will also convey, and reflect on, the practical development of international law in such regions, as non-state actors in the international community. The four regions selected across the Taiwan Straits have the same origins, and similar languages, but different legal traditions. Thus, they are connected and influenced by each other. Through this research, it is hoped the practical experience of the four regions might be pooled in mutual learning, to promote improvements and development of the domestic legal systems.
Developing Judicial Autonomy in Recent Chinese Court Reforms
The recent judicial reforms in China, beginning in 2013, is expected to radically change the way the courts are functioning. Specifically, the goal is that courts can protect the judicial integrity by adjudicating independently according to the law. The issue of judicial independence is then discussed by scholars repeatedly. However, in the PRC political environment, which has been fundamentally influenced by Soviet Leninism, judicial independence has lost the original meaning of “checks and balances”. It is then appropriate to use “judicial autonomy” to describe the goal of the judicial reform. In the PRC political environment, the judicial autonomy or the court autonomy is faced with certain institutional challenges, including the impending need for the reform of judicial budget and the de-administration in the whole court system. Theorists have revealed the major problems of the judicial budget faced by most lower level courts. More than half of the judicial resources come from local government, which means that the courts must rely on the local administration to survive. The bureaucratic system in the Chinese courts is another frequently discussed issue that challenges the judicial autonomy. Each judge belongs to a certain administrative ranking, which means judges are managed in the same way as the public servants. Since the PRC constitution emphasizes the “independent adjudication” of the court rather than the judges, the adjudication is then easily influenced by the higher-ranking judges.
The overall objective of the dissertation project is to find out the possible way of developing judicial autonomy in the recent judicial reform. The study intends to clarify the concept of judicial autonomy in the PRC context. The way of developing both the court autonomy and the adjudication autonomy is expected to be found out through the analysis of the institutional factors of the judicial system.