Laws of The People's Republic of China - Sources of Law

Sources of Law

The highest and ultimate source of legal norms in the PRC is the Constitution of the People's Republic of China. It establishes the framework and principles of government, and lists the fundamental rights and duties of Chinese citizens.

Unlike some civil law jurisdictions such as Germany, China does not systematically lay down general principles in its constitution which all administrative regulations and rules must follow. The principles of legislation and the validity and priority of law, rule and administrative regulations are instead listed in the Legislation Law, constitutional provisions, basic laws and laws enacted by the National People's Congress and its standing committee, regulations issued by the State Council and its departments, local laws and regulations, autonomous-zone regulations, legal explanations and treaty norms are all in theory incorporated into domestic law immediately upon promulgation.

Signed international treaties are in practice automatically incorporated into PRC law, and they are superior to the relevant stipulations of PRC laws. However, the PRC reserves the right to make reservations regarding provisions of a treaty.

Unlike common law jurisdictions, there is no strict precedential concept for case law and no principle of stare decisis. In addition, there is no case or controversy requirement that would require the Supreme People's Court to limit its decisions to actual cases, and the SPC does issue general interpretations of the law. In practice, lower people's court judges attempt to follow the interpretations of the laws decided by the Supreme People's Court. In addition, unlike common law jurisdictions, higher courts have the power of supervision and guidance, which means that on their own initiative they can reopen a case that has been decided at a lower level.

Courts in the PRC do not have a general power of judicial review which enables them to strike down legislation. However under the Administrative Procedure Law of the People's Republic of China, they do have authority to invalidate specific acts of the government. In cases where there is a conflict of laws, the process to resolve this conflict is outlined in the Legislation Law of the People's Republic of China, in which an interpretation is requested by the legislative body that is responsible for the law. This process has been criticized both by Western and Chinese legal scholars for being unwieldy and for not allowing for judicial independence and separation of powers. At the same time, the counterargument has been made that resolving legal conflicts is primarily a legislative activity and not a judicial one.

Finally courts outside of the special autonomous regions including the Supreme People's Court do not have jurisdiction over the Hong Kong and Macau SAR's, although the Standing Committee of the National People's Congress does have and has used its authority to interpret the Basic Law of Hong Kong.