By Wyatt Smith ‘26

Introduction

To many in the United States, the Chinese government can seem like a mysterious, enigmatic, and vaguely authoritarian entity on the other side of the world. While most Americans are aware that China is under the rule of the Chinese Communist Party (CCP), few understand how CCP rule affects the Chinese legal system and the day-to-day lives of the Chinese people. This article aims to demystify the Chinese legal system from a bird’s-eye view, based on an evaluation of six topics in Chinese law: Chinese legal history, the role of the Chinese Constitution, the rights of Chinese citizens, the structure of China’s courts, civil law, and criminal procedure.

The History of Chinese Law

The earliest Chinese law codes were developed by China's first unitary dynasty, the Qin (pronounced “chin”). The Qin Dynasty, founded by Emperor Qin Shi Huang in 221 B.C., rooted its law codes in a philosophical concept called, unsurprisingly, Legalism. Chinese Legalist philosophy at the time held that human nature was brutish and unconstrained, demanding control from a higher authority figure, not unlike Hobbes’ leviathan. As a result, the first Chinese law code promulgated by the Qin was overwhelmingly penal by nature. The code focused on governmental control, and prescribed harsh punishments for the majority of offenses. However, the Qin Dynasty was short-lived, collapsing less than 20 years after its establishment.

Following a brief period of civil war, the Han Dynasty rose from the ashes of the Qin in 202 B.C. The Han Dynasty installed Confucian scholars to its legal offices, who began what is now known as the “Confucianization of Chinese Law”, an event which would define the Chinese legal framework until the early 20th century. This iteration of Chinese law placed a heavy emphasis on hierarchy and filial piety (honor and deference to one’s elders), a concept rooted in Confucius' five relationships. As such, Chinese law was differentially applied to its citizens all the way up until the collapse of the Qing Dynasty in 1912. In practice, this meant that the severity of a crime was evaluated based on who the perpetrator and victim were. If a father committed a crime against one of his children, it would have been punished less harshly than vice-versa. This unequal application of the law likely contributed to the social conditions that allowed communism to take root in mid-20th-century China. The core of this law code survived throughout all of the remaining Chinese dynasties, with most of the changes being statutory adjustments made in order to respond to a new event, social climate, or technology. 

In 1912, the Republic of China was established with the intention of implementing a European-style democracy, with a European-style civil law code. However, China at the time was teeming with war, poverty, and famine, and simply lacked the cohesion to implement such changes. World War II exacted a heavy toll on the fledgling Republic of China, with the Japanese invasion substantially weakening the Kuomintang (China’s then-ruling party). Shortly thereafter, the devastated Kuomintang were then defeated and forced to retreat to Taiwan by the CCP. Mao Zedong, China’s first communist leader, recognized the importance of having a legal system, but lacked personnel trained in socialist legal practices. As a substitute, early Communist China used Kuomintang judges in their judiciary, who quietly began to write Republican law back into the books. These actions aroused suspicion in China’s new leaders, who had many of the judges executed, exiled, or imprisoned. 

This purge was part of the larger “Cultural Revolution” and left China with less than 3,000 lawyers by the time Deng Xiaoping took power in the late 1970s. By then, China’s legal system was patchwork at best, and at worst, barely there. Xiaoping recognized this as a problem and began an ambitious reform campaign to build up the Chinese legal system. Under Xiaoping, China built over 600 law schools around the country, ratified a constitution in 1982, which is still in use today, and modernized China’s law codes to adapt to a market-based economy and support economic development. These reforms constitute the basis of contemporary Chinese law.

The Role of China’s Constitution

The current Constitution of China was ratified in 1982, and has been frequently amended since, mostly to reflect the personal philosophies of Chinese leaders. The Constitution declares China to be a socialist state under the leadership of the CCP, and outlines the role of the Communist Party as well as the rights and obligations of Chinese citizens.

While in the United States the Constitution is the supreme law of the land, in China, the Constitution must yield to two other entities in a hierarchical framework known as the “Three Supremes”. Articulated by Communist leader Hu Jintao in 2007, the Three Supremes resemble Asimov’s laws of robotics in that they create a priority ranking. The doctrine names the Constitution, the People, and the CCP as the supreme extant legal authorities, placing the Constitution at the bottom. The Constitution must defer to the “People of China”, and the people must ultimately defer to the Chinese Communist Party. In this way, the Chinese Constitution is not actually the supreme law of the land, and is only operative insofar as it does not conflict with the CCP.

Notably, there is no system for judicial review in China. Constitutional conflicts are instead resolved by the National People’s Congress, China’s legislative organ. The term “organ” is used here in lieu of “branch” because Chinese legal philosophers reject the separation of powers outright, claiming that to separate the branches of government is to separate the Chinese people from power. In 2013, there was a brief period of debate amongst Chinese intellectuals and officials around the idea of adopting a more constitutional system and establishing judicial review. Ultimately though, this movement was swiftly shut down by the CCP. Again, Chinese Communist thinkers argued that strict constitutional adherence would divest power from the Chinese People, and vest it in a separate entity. 

The Rights and Obligations of Chinese Citizens

The Chinese Constitution purports to guarantee many of the same rights enjoyed by U.S. citizens. Article 35 guarantees freedom of expression, assembly, and association, while Article 36 guarantees uninhibited freedom of religion, similar to the U.S. First Amendment. Article 37, like the U.S. Fourth Amendment, protects against unlawful searches, seizures, and arrests (but makes no mention of warrants). Article 41 of the Chinese Constitution enumerates the right to file complaints against state organs or officials, with the caveat that the state organ concerned is in charge of determining the facts. This article also makes it clear that fabricating or distorting information is a crime, which may provide an incentive for Chinese citizens to avoid exercising this right.

There are also rights in the Chinese Constitution that are not guaranteed in the U.S. For example, Chinese citizens have the right to material assistance if they are aged, ill, or have lost the capacity to work. Citizens also have a universal right to an education under Article 46. Education, both higher and lower, is typically free in China. Article 48 specifies that women are equal to men in all areas of the law, and are to be paid equally for equal work by both public and private enterprises. Article 49, concerning marriage and families, lays out an obligation for children to support their elderly parents, an artifact that harkens back to the days of Confucian law. Chinese citizens can also vote, but only for pre-approved CCP candidates in local elections. 

On paper, this seems like a fantastic and robust set of constitutional guarantees. In practice, however, the Constitution is not where the buck stops. Article 51 of the Chinese Constitution recognizes this, stating: “When exercising their freedoms and rights, citizens of the People’s Republic of China shall not undermine the interests of the state, society or collectives…”. Without a system of judicial review, and with the Constitution at the bottom of the Three Supremes pecking order, the Chinese government is free to make any calculation it pleases when it weighs its own interests against the legitimate interests of its citizens. Every right of the Chinese citizenry is limited when weighed against the interests of the state. 

Unfortunately, there is strong evidence to suggest that human rights violations take place in China on a considerable, systemic scale. According to a 2022 United Nations report, the Chinese government has likely moved tens to hundreds of thousands of Uyghur Muslims to internment camps without any sort of due process in the western province of Xinjiang. The rationale behind this action seems to be sinicization, an unofficial policy of the Chinese government to reinforce Han Chinese cultural norms at the expense of ethnic minorities. Reports of torture, re-education, and even forced abortions are not uncommon in Xinjiang.

The Chinese Court System

The People’s Courts of China are established in the Constitution under Articles 123-128, and are organized into four tiers. The Supreme People’s Court is the highest court and the final court of appeal. The High People’s Courts, which hold jurisdiction over provinces or autonomous regions like Xinjiang, handle major appeals and certain politically sensitive cases. Intermediate People’s Courts operate at the prefecture/municipality level, and handle serious criminal cases and appeals from the Basic People’s Courts, which are the lowest level of Chinese court and operate at the district level.

Inside a Chinese courtroom, the proceedings will differ noticeably from those of an American court. In the American adversarial system, attorneys representing either side of a case take turns presenting evidence to a jury or judge who will ultimately decide the trial. China, on the other hand, follows what’s called an inquisitorial system, meaning that lawyers do very little questioning and presentation of evidence; instead, lawyers mostly stick to handling the procedural end of affairs, while the judge examines witnesses, and reviews the evidence themself. There are no juries in China, with judges typically acting as the finders of fact. 

There are also certain special courts in China, such as the newly minted “Internet Courts.” These Internet Courts have jurisdiction in certain large cities, and handle cases involving online activity. Notably, citizens can file claims, submit evidence, and attend hearings of these Internet Courts entirely virtually. The Internet Courts use blockchain technology to verify evidence and the validity of filings.  

The CCP commands nearly unlimited control over the People’s Courts via the Political-Legal Affairs Committee, or PLAC for short. The PLAC is not part of the Chinese government, but is instead an arm of the CCP that provides political and judicial oversight to Chinese courts. The PLAC exists at all levels of the People's Court, and can exercise authority by appointing judges, prosecutors, and police personnel, as well as issuing direct interventions in some politically sensitive cases. Outside of just political intervention, the PLAC also coordinates cross-departmental legal cases and facilitates communication between courts.

Civil Law In China

China operates under what is known as a civil law system. Simply put, that means all laws are to be written down in a civil code, and interpreted strictly based on the language used in that writing. In civil law systems, judges do not interpret the law; instead, in China, they act as the finders of fact in place of a jury. This differs from a common law system, where judges interpret and clarify laws and legal theories, which is the type of system used in the U.S.

China’s very first unitary civil law code was promulgated on January 1st, 2021, consolidating all of China’s formerly fragmented civil laws into one comprehensive framework, perhaps for the first time in the nation’s long history. This new code places a heavy emphasis on the modernization of contracts, with 19 different types of contracts specified as opposed to 15 before 2021. Good faith dealing is also a major topic in Chinese civil law, with the intentions and honesty of parties carefully evaluated by Chinese courts when dealing with contracts. This emphasis seeks to promote an easier, more accessible environment for doing business. 

Chinese citizens may also sue other citizens or entities in the court of law, and section seven of the 2021 code provides a framework for tort liability. Torts in China are, surprisingly, quite similar to torts in the U.S., with concepts like negligence, defamation, employer liability, and medical malpractice featuring prominently. Lawsuits are typically quite accessible to Chinese citizens, with filing fees being low and the process for submission of evidence being streamlined and speedy. Typical remedies include injunctive relief, compensatory damages, and court-mandated public apologies, which are common in defamation cases. Chinese tort law does not, however, have a provision for punitive damages; any financial compensation is limited strictly to actual or opportunity loss. 

Criminal Procedure In China

Chinese criminal procedure follows a somewhat different formula than criminal procedure in the U.S. It begins with an investigation, where authorities attempt to gather evidence relating to the crime, procure witnesses, and nominate suspects. The next phase is known as the “prosecution” phase, and is carried out by the People’s Procuratorate. The Procuratorate is a state organ, wholly distinct from the courts, that is responsible for legal supervision, prosecution, and evaluation of evidence. The decision to indict lies with the Procuratorate, and in China, an indictment is tantamount to a conviction. Once the Procuratorate has indicted a suspect, the conviction rate is an unbelievable 99.975% as of the latest statistics (compared to a conviction rate of 68% for accused felons in U.S. state courts, as of 2012). In 2022, out of approximately 1,430,000 criminal prosecutions, there were a mere 354 verdicts of “not guilty”. This is at least partially because the evidence evaluated by the Procuratorate will typically include a confession, as prisoners in China are often subject to harsh interrogation techniques. Allegations of torture and coercion are fairly commonplace. At this point, the trial is merely a formality. After the trial, citizens are allowed one appeal to a higher court as of right, but these appeals are almost never heard. 

Next comes the execution of punishment. Typical punishments for criminals include public surveillance, short-term criminal detention, imprisonment, fines, confiscation of property, and execution. Public surveillance is common for petty crimes and misdemeanors, and provides that the offender must report activities, relinquish certain rights, and face travel restrictions. Criminal detention, which differs from imprisonment, is typically short-term incarceration at a detention center (not a prison) for one to six months. This is common for petty theft, public order offenses, and small amounts of narcotics. Imprisonment is reserved for more severe crimes, such as distributing narcotics, aggravated assault, or “Inciting Subversion of State Power” (煽动颠覆国家政权). For example, legal scholar Xu Zhiyong was sentenced to 14 years in prison in 2023 for “subversion of state power” after writing and distributing pro-democracy essays. Execution, though not common, is still used for the most severe crimes in China, but has been subject to recent pushback from the Chinese Supreme People’s Court.

Despite the seemingly harsh laws and extraordinarily high conviction rate, China’s incarceration rate (as reported in 2019) is markedly lower than in the U.S., with a prison population of  ~1.7 million as opposed to the American 1.9 million in 2024. This is especially true if you take into account the incarceration rates per 100,000 people, which are 629 and 119 in the U.S. and China, respectively. Of course, it is always a possibility that China underreports its prison population. Chinese criminals also generally spend less time in prison than U.S. convicts who have committed the same crime. 

Conclusion

The Chinese legal system is unique and at times paradoxical as it is both vast in scope, yet limited in function. The Chinese Constitution enumerates a long and comprehensive list of rights afforded to its citizens, and yet allows those rights to be limited whenever and to whatever extent is expedient for the CCP. China’s criminal courts hear over a million cases per year, but 99.975% of them seem to be a foregone conclusion. China’s “Three Supremes” doctrine declares three inalienable sources of law, and yet at the same time, ranks them so as to annul one another. Chinese socialist philosophy eschews inequality in all forms, and yet the Confucian concept of filial piety is written into China’s very Constitution. Full of contradictions and vast beyond reckoning, China’s legal system is simultaneously an unparalleled defender of state power, and a surprisingly modern framework for the promotion of economic development and civil society.

Wyatt Smith is a senior majoring in operations and supply chain management.

Sources

Alford, W. P. (October 22, 2014) Chinese Law. Encyclopedia Britannica. https://www.britannica.com/topic/Chinese-law/additional-info#history 

Asia Society Policy Institute. (n.d.) Decoding Chinese Politics. Asia Society. Retrieved March 30, 2025 from https://asiasociety.org/policy-institute/decoding-chinese-politics?policy=party-center&group=organizations&size=rank&connection=personal 

Bandurski, D. (n.d.) Freedom of Speech. Decoding China. https://decodingchina.eu/freedom-of-speech/ 

Bureau of Justice Statistics. (April 19, 2012). What is the probability of conviction for felony defendants? Bureau of Justice Statistics.https://web.archive.org/web/20200118111741/https://www.bjs.gov/index.cfm?ty=qa&iid=403 

Data Pandas. (September 18, 2024). Incarceration rates by country. Data Pandas. https://www.datapandas.org/ranking/incarceration-rates-by-country 

Davidson, H. (April 15, 2024) China continues to persecute family of dissidents unlawfully, finds report. The Guardian. /www.theguardian.com/world/2024/apr/15/china-continues-to-unlawfully-persecute-family-of-dissidents-finds-report 

Gan, N. (April 11, 2023). ‘A democratic China must be realized in our time’: Beijing jails two prominent legal activists for subversion. CNN. https://www.cnn.com/2023/04/10/china/china-lawyers-xu-zhiyong-ding-jiaxi-sentences-intl-hnk/index.html 

Human Rights Watch. (2009). World Report 2010: China. Human Rights Watch. https://www.hrw.org/world-report/2010/country-chapters/china-and-tibet 

Institute for Crime and Justice Policy Research. (June 6, 2019). World Prison Brief: China. Institute for Crime and Justice Policy Research. https://www.prisonstudies.org/country/china 

Kwan, C. H. (2013). The Debate over Constitutionalism: Political reforms at a crossroads. Research Institute of Economy, Trade, and Industry. https://www.rieti.go.jp/en/china/13070302.html 

Liu, T. Y. (June 29 2021). Chinese court system: internet courts. Lexology. https://www.lexology.com/library/detail.aspx?g=5edd15b5-7236-4df5-9a5c-0aff97461fff& 

Office of the United Nations High Commissioner for Human Rights. (2022, August 31). Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China. https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/22-08-31-final-assesment.pdf

Reed Smith LLP. (June 20, 2020). The adoption of the Chinese Civil Code and its implications on contracts relating to China. Reed Smith. https://www.reedsmith.com/en/perspectives/2020/06/the-adoption-of-the-chinese-civil-code-and-its-implications-on-contracts 

Safeguard Defenders. (July 24, 2023). China’s judiciary 2022. Safeguard Defenders https://safeguarddefenders.com/en/blog/chinas-judiciary-2022 

State Council of the People's Republic of China. (1982, December 4). Constitution of the People's Republic of China. https://english.www.gov.cn/archive/lawsregulations/201911/20/content_WS5ed8856ec6d0b3f0e9499913.html

U.S. State Department. (2023). China 2023 Human Rights Report. U.S. State Department. https://www.state.gov/wp-content/uploads/2024/02/528267_CHINA-2023-HUMAN-RIGHTS-REPORT.pdf