Preface

Courts as fruit of political and social culture

The People's Republic of China has not only the fastest growing economy in the world, but is also a country in the process of undergoing the most rapid changes in economic and social structures. Alongside with introduction and implementation of Socialistic Market Economy and especially after China's recent accession to the World Trade Organization, numerous laws, regulations and interpretations have been enacted that become more and more influential for the manifold relationships existing and developing in a changing society. From a political point of view, in a country governed by the Rule of Law, laws and regulations are the most important means to implement political decisions. As for social and economic aspects, laws guarantee public peace and certainty of legal rights and duties, both necessary preconditions for a nation's successful and lasting transformation into a modern economy. But to unfold its important functions, law requires general acceptance, possibility of enforcement and appropriate, competent further development. Courts can play a major part to fulfil these requirements since based on the law they can provide access to courts, predictable and convincing decisions and their enforcement. When deciding cases the legislator has not foreseen, court decisions can even serve to supplement incomplete legal provisions or take into consideration developments faster than possible in the process of legislation. For that, an efficient institutional structure and personal competence of the court personnel are necessary. From the key role judicial authority can play follows that its shape and powers in the course of history until nowadays always strongly depended on the respective political and social powers and convictions. The same is true for the persons who were and are appointed to exercise the court's functions, especially the judges, whose personal opinions again have influence on the application of law. Therefore, the court system always is a product, reflection and at a same time motor of political and social convictions, decisions and developments.

Both, the importance of an effective, functioning and independent court system for the success of a nation's political and social structures as well as the numerous influences, interests and changes the judiciary system is subject to during its existence are illustrated by the present study. The book examines the development of the court system in the younger Chinese past beginning with the establishment of the People's Republic after the liberation 1949 which generated a court system as "product of revolution, not evolution", describes and analyses its current structure, achievements and difficulties of its reform, and gives an outlook as what kind of courts China will need in the new century. The author, who is an experienced, well-known scholar and practitioner, has founded knowledge of China's legal system in past and presence and analyses the development of judicial organs in all detail, using a vivid language and showing much insight into the events and decisions which led to the current system. She gives a comprehensive and critical description of the court system's present state and the multiple aspects of which reform achievements were already or still have to be made. Finally, the importance of future structural reforms for meeting the challenges of the 21st century is convincingly pointed out. Hereby, the book provides the reader with an understanding of the complex political and social factors that influence the Chinese judicial system and vice versa are influenced by it, as well as of the tasks China already underwent and still has to undergo in her unique transformation process.

On behalf of the Konrad Adenauer Foundation I would like to express my sincere gratitude and high respect to the author, Prof. Xin Chunying, Member of the Standing Committee of the National People's Congress. As former vice–director of the Institute of Law of Chinese Academy of Social Sciences the Konrad Adenauer Foundation cooperated with her several times in a series of research projects and international seminars all focused on the needs of reforming different areas of Chinese law, especially administrative law. Her actual book is another valuable initiative in that sense and without any doubt a highlight. It is an important contribution to China's efforts of building up a state governed by the Rule of Law.

Mr. Winfried Jung

Resident Representative

Konrad Adenauer Foundation

Gliederung

Forward by KAS & Acknowledgement

Preface: Court as Fruit of A Political and Sozial Culture

Chapter 1 Establishment of the Court Systen in PRC

Chapter 2 Evolution and Interruptions

Chapter 3 Court System during Culture Revolution

Chapter 4 Reform since Late 1970`s and Regeneration of Courts

Chapter 5 Current Court Structure and Procedure

Chapter 6 Problems and Reform Directions

Chapter 7 Court-related Alternative Disputes Resolution Mechanism

Chapter 8 Case Study: Dispute Resolution Process in Specific Cases

Chapter 9 What Kind of Courts Does China Need for the 21th Century

Appendix 1 The Code of Judicial Ethics for Judges of The People´s Republic of China

Appendix 2 A Five-year Reform Programm for The People´s Court

References