Internet Law in China

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The Chinese legal system

Abstract:

This chapter provides an introduction and overview of China’s legal system, including the sources of law, the court system, and legal procedure. The sources of law include constitutional law, statutory law, administrative law, local law, and international law. The court system consists of the local courts, the special courts, and the Supreme Court. Legal procedure involves criminal procedure, civil procedure, and administrative procedure. In addition, this chapter provides a guide to finding Chinese law, both offline and online.

Key words

Chinese legal system

sources of law

court system

legal procedure

To understand a particular area of law, such as Internet law, we may need an introduction to the law in general. By definition, law refers to a set of rules that guide human conduct in order to protect the rights of individuals as well as to ensure public order. Although Chinese law is a complicated subject, this chapter describes its basics so that we will have a framework within which to place and understand Chinese Internet law. Specifically, this chapter explains the sources of law, the court system, and legal procedure in China. It also provides a guide to finding Chinese law both offline and online.

The sources of law

China is one of the world’s oldest civilizations and is also regarded as the oldest continuous civilization. For most of its history, China adopted a legal system that combined the Confucian philosophy of social control through moral education with the Legalist emphasis on codified law and criminal sanction. Following the revolution of 1911, which led to the overthrow of imperial rule, the Republic of China (ROC) brought in a largely German-influenced civil law system.¹ When the People’s Republic of China (PRC) was established in 1949, it abolished the ROC’s legal codes and introduced a more Soviet-influenced legal system. The current legal system dates from the early 1980s, a few years after the end of the Cultural Revolution. A mix of Chinese traditions and Western influences, this system has grown in size and complexity over the past decades. This is particularly reflected in the development of Internet law, which originates from five sources: constitutional law, statutory law, administrative law, local law, and international law.

Constitutional law

The current Constitution of the PRC, adopted in 1982, establishes the framework and principles of government and enumerates the fundamental rights and duties of Chinese citizens. It is the fundamental law of the state and has supreme legal authority, and no laws and regulations may contravene it. Three prior constitutions from 1954, 1975 and 1978 have partially contributed to the formation of the current Constitution.

Article 1 of the current Constitution prescribes that the PRC is a socialist state. Article 2 prescribes that all power in the country belongs to the people, and the National People’s Congress (NPC) and the local people’s congresses at various levels are the organs through which the people exercise state power. Article 3 prescribes that all administrative, judicial, and procuratorial organs of the state are created by, responsible for, and supervised by the people’s congresses, thus fundamentally differing from the separation of executive, legislative, and judicial powers in many Western countries. Article 3 also indicates that all power comes from the central government, and local governments have only such power as the central government chooses to delegate to them.

Important to understanding Chinese constitutional law is the concept of the NPC as the supreme organ of state power. The Constitution stipulates that the NPC has power to amend the Constitution by a two-thirds majority, supervise the enforcement of the Constitution, enact and amend basic laws, determine the budget, control social and economic planning, and decide on matters of war and peace. It also stipulates that the NPC has power to elect and remove highest-level officials, including the President and Vice-President of the State, Premier and Vice-Premier of the State Council, the Chairman of the Central Military Commission, and the Presidents of the Supreme People’s Court and the Supreme People’s Procuratorate. When the NPC is not in session, many of its functions and powers are delegated to and exercised by its Standing Committee.

The Constitution establishes that the NPC sits at the apex in the hierarchy of Chinese government structure. This national level is followed in descending order by the provincial, city, county, and township levels. At the county and township levels, the delegates to the people’s congresses are directly elected by their constituencies. At national, provincial, and municipal levels, however, delegates are elected by the people’s congresses at the next lower level. People’s congresses at all levels have a term of five years and hold a meeting annually.

The Constitution also lists the fundamental rights and duties of Chinese citizens. The rights include equality before the law; equality of all nationalities; freedom of speech, the press, religion, assembly, and petition; freedom and privacy of personal correspondence; the right to personal dignity; the right to criticize state organs; social and economic rights; cultural and education rights; and familial rights. However, these rights are connected to social duties, such as paying tax, serving in the military, observing the law and social ethics, and safeguarding the unity, security, honor, and interests of the country. Many of these provisions have a direct or indirect impact on the Internet activities of individuals and organizations.

Statutory law

The Chinese Constitution explicitly delegates the power to enact statutory laws to the NPC, the highest level of legislative authority in the country. First of all, the NPC has power to enact major legal codes, often referred to as basic laws, for the purpose of predicting or responding to problems affecting society at large. There are currently three sets of basic laws: the Criminal Law and the Criminal Procedure Law; the General Principles of Civil Law and the Civil Procedure Law; and the Administrative Procedure Law and the Administrative Penalty Law. Many provisions of these laws are closely related to the regulation of mediated communication and Internet activities. Taking the Criminal Law as an example, more than 20 criminal actions in this law can apply to speech and other activities in cyberspace, such as crimes of endangering national security, crimes of endangering public security, crimes of disrupting the order of the socialist market, and crimes of infringing upon citizens’ democratic and personal rights. Similarly, the General Principles of Civil Law can also apply to Internet activities, especially its provisions relating to defamation and intellectual property.

The Standing Committee of the NPC has power to enact and amend laws and regulations apart from basic laws. Compared to basic laws, these laws and regulations are more limited in scope, mainly responding to or predicting specific problems in society. The laws related to journalism and communication activities in general include the National Security Law, the Law on Guarding State Secrets, the Advertising Law, the Copyright Law, the Patent Law, the Trademark Law, the Minor Protection Law, the Consumer Protection Law, the Law against Unfair Competition, etc.² A considerable proportion of these laws can apply to Internet regulation. In addition, since the popularization of the Internet in 1994, the NPC has enacted a few laws that specifically address Internet problems, such as the Electronic Signature Law and the Decision of the NPC Standing Committee on Safeguarding Internet Security. However, so far there is no single statutory law that attempts to address Internet problems comprehensively.

Pursuant to the Legislation Law of the PRC,³ a legislative bill submitted to the NPC or its Standing Committee should go through repeated deliberation in the group discussions and plenary meetings of the NPC or its Standing Committee, respectively; if a consensus is reached at this stage, the bill will then be submitted to the NPC or its Standing Committee for a final vote at a plenary meeting, and will be publicized via the order of the President of the PRC when it has been adopted by more than a simple majority of the deputies. In addition, to enhance transparency and public participation, the NPC tries to legislate in an open fashion and has established some good practices. For example, during the law-making process it may distribute the bill to central and local government departments to solicit written opinions.⁴ It may also solicit opinions from society at large, through such means as holding public forums, expert panel meetings, and hearings.

Finally, according to the Decision of the NPC Standing Committee on the Strengthening of Legal Interpretation Work,⁵ the Supreme People’s Court has the right to make judicial interpretations on questions concerning the specific applications of laws and decrees in trial proceedings. Due to such delegation from the legislation, judicial interpretations by the Supreme Court may thus function as statutory laws. In practice, judicial interpretations have applied to both civil law and criminal law. In the field of civil law, there are at least two important judicial interpretations that may apply to Internet and other communication activities. They are the Interpretation of the Supreme People’s Court on Several Issues about the Trial of Cases Concerning the Right of Reputation and the Interpretation of the Supreme People’s Court on Several Issues on the Ascertainment of Compensation Liability for Emotional Damage in Civil Torts. In the field of criminal law, the Supreme Court and the Supreme Procuratorate jointly issued a judicial interpretation on crimes of spreading obscene content via the Internet, mobile WAP sites, or telephone information services in 2010, when China intensified its crackdown on online pornography. This judicial interpretation clarified crimes involving producing, replicating, publishing, selling, and spreading pornographic and vulgar information via or on the Internet.

Administrative law

The next tier of the Chinese legislative hierarchy is the State Council, the supreme administrative organ. It is empowered under Article 89 of the Constitution to adopt administrative measures, enact administrative regulations, and issue decisions and orders in accordance with the Constitution and other statutes. In addition, the ministries and commissions directly under the State Council are empowered under Article 90 of the Constitution to issue orders, directives and regulations within the jurisdiction of their respective departments and in accordance with law and the administrative regulations, decisions and orders issued by the State Council. As such, both the State Council and its departments possess inherent power to make legislation. This makes a stark contrast to the common law systems in the United States and England, where administrative authorities possess substantive power only by delegation from the legislation.⁶ By virtue of inherent power principle, the State Council and its departments possess both legislative and executive powers within their own jurisdictional authority. But there are some limits to their law-making power: they can neither change the nature of rights and obligations in the higher law nor create rights and obligations that have not been recognized by higher laws. If administrative bodies plan to create new regulations that involve rights or obligations that have never previously been touched upon by higher laws, they are required to seek the approval of and then report back to the NPC or its Standing Committee. In this case, the law-making power of administrative bodies can be viewed as conferred by higher state power organs.

As implied in the Constitution, there are two types of administrative law in China: one is enacted by the State Council and the other by the ministries and commissions directly under the State Council. The regulations by the State Council respond to problems that are fundamental and commonplace in certain administrative jurisdictions. These regulations are important legal resources for the courts in handling administrative trials. In terms of the Internet, the major administrative regulations include the Telecommunications Regulation, the Regulation on the Protection of the Right to Network Dissemination of Information, the Administrative Measures for Internet Information Service, the Regulation for Safety Protection of Computer Information Systems, the Interim Provisions on the Administration of International Connection of Computer Information Network, and the Administrative Provisions on Foreign-Funded Telecommunications Enterprises.⁷

The regulations and rules enacted by the departments directly under the State Council mainly respond to specific problems in certain administrative jurisdictions. The regulations enacted by the departments have lower legal authority than those enacted by the State Council, and are used only as a reference in administrative trials by the courts. Among numerous Internet regulations enacted by the departments of the State Council, the major ones include the Administrative Provisions on Electronic Bulletin Services on the Internet (by the Ministry of Industry and Information Technology), the Interim Provisions on the Administration of the Engagement of Internet Sites in the Business of News Publication (jointly by the State Council Information Office and the Ministry of Industry and Information Technology), the Interim Provisions on the Administration of Internet Publication (by the General Administration of Press and Publication), the Administrative Provisions on Internet Audio-Visual Program Service (jointly by the State Administration of Radio Film and Television and the Ministry of Industry and Information Technology), etc. These regulations and rules play a critical role in the administration of various cyberspace problems in China.

Local law

Used as a broad term in this book, local law refers to all regulations and rules established by local people’s congresses and local people’s governments. In China, there are four levels of local administration— provincial, city, county, and township. Only the people’s congresses and people’s governments of provinces, provincial capitals, and quite large citiespossess powers to enacttheirownlocal regulations, which, however, must not contravene the Constitution and statutory laws or the administrative regulations promulgated by the State Council and its departments. Also, the provincial regulations have higher legal authority than the regulations of the provincial capital and of the quite large cities in the province. The regulations of the local people’s congress have higher legal authority than the regulations of the local people’s government at the same level.

Local regulations generally fall into three categories—regulations to implement the laws of the central government; regulations promulgated to supplement broad national laws that lack detail; and regulations that deal strictly with local issues not covered by national legislation.⁸ All must be enacted in the light of the specific conditions and actual needs of the local administrative jurisdiction, and in most cases they are valid only in that jurisdiction. In the case of local Internet regulations, most of them emerged after 1998, when the Internet began to expand around the country. Exemplary local regulations include the Interim Measures of Beijing Municipality for the Administration of Internet Advertising, the Regulation of Hangzhou Municipality for Safety Protection of Computer Information Networks, and the Regulation of Shandong Province for Safety Protection of Computer Information Networks.

International law

International law refers to treaties and agreements that govern formal relationships between independent nations, establishing policies for how states can interact with each other politically and economically. Under the Chinese Constitution, the State Council exercises the power to conclude treaties and agreements with foreign states, the NPC Standing Committee exercises the power to decide on the ratification or abrogation of such treaties and agreements, and the President of the PRC, pursuant to the decisions of the Standing Committee of the NPC, exercises the power to ratify or abrogate such treaties and agreements. Furthermore, the Law of the PRC on the Procedure for the Conclusion of Treaties specifies that there are six types of treaties and agreements that shall go through the above concluding procedure. They include: (1) treaties of friendship and cooperation, treaties of peace, and other treaties of a political nature; (2) treaties and agreements concerning territory and the delimitation of boundary lines; (3) treaties and agreements relating to judicial assistance and extradition; (4) treaties and agreements which contain stipulations inconsistent with Chinese laws; (5) treaties and agreements which are subject to ratification as agreed by the contracting parties; and (6) other treaties and agreements subject to ratification.

One critical issue regarding international treaties is how the member state applies or implements a treaty at the domestic level. In China, many signed international treaties have been automatically incorporated into Chinese domestic law, and they are superior to the relevant stipulations of the latter. This is reflected particularly in Article 142 of the General Principles of the Civil Law, which clearly stipulates that if any international treaty concluded or acceded to by China contains provisions differing from those in Chinese domestic law, the provisions of the international treaty shall apply, unless the provisions are ones on which China has announced reservations. For instance, when joining the WIPO⁹ Performances and Phonograms Treaty in 2006, China announced that the country is specifically exempt from restrictions of Article 15(1) of the treaty.¹⁰ In cases of this kind, international treaties are directly incorporated into domestic law, even though the country applies reservations to certain provisions of a treaty. In some cases, however, China may adopt an indirect application approach to international treaties. For example, responding to the Vienna Convention on Diplomatic Relations, China enacted the Regulation on Diplomatic Privileges and Immunities to transform the Vienna Convention into domestic law for enforcement purposes. Another example is that, in order to facilitate China’s entry into the World Trade Organization (WTO), the country has fundamentally changed its commercial legal system through such measures as invalidation, amendment, and enactment of relevant laws.

The court system

According to the Chinese Constitution, the people’s courts represent the judicial organs of the state. The task of the people’s courts is to try criminal and civil cases and to punish criminals and settle civil disputes through judicial means. Specifically, the judicial authority of the state is exercised by the following types of courts: local people’s courts at various levels, military courts and other special people’s courts, and the Supreme People’s Court (SPC). Local people’s courts are set up in accordance with the administrative jurisdictions, while special people’s courts are established out of necessity. Both local courts and special courts are subject to the supervision of the Supreme Court.

Local people’s courts

Under the Law on the Organization of the People’s Courts, local people’s courts are divided into three levels: primary, intermediate, and higher. Primary people’s courts consist of tribunals in counties/autonomous counties, the administrative districts of cities, and cities without administrative districts. The main responsibility of primary courts is to adjudicate criminal and civil cases of first instance, except where otherwise provided for by law. If a primary court deems the case to be of major importance, it may request the transfer of the case to a higher court. Besides trying cases, a primary court also handles civil disputes and misdemeanors that do not need trials, and directs the work of people’s mediation committees. To facilitate lawsuits, primary people’s courts may set up a number of tribunals according to the conditions of the locality, population, and cases involved.¹¹ Although these tribunals are not trial units, they are responsible for hearing general civil cases and misdemeanors. The judgments and orders of the tribunals represent those of the primary people’s courts.

Intermediate people’s courts are established in the prefectures of a province or autonomous region, cities directly under the jurisdiction of a province or autonomous region, and districts in the four municipalities directly under the central government. Their responsibilities include trying criminal, civil, and administrative cases of first instance assigned by law to their jurisdiction, cases of first instance transferred by primary courts, and cases appealing or protesting the verdicts and decisions of primary courts. First-hearing criminal cases under the jurisdiction of intermediate courts include those involving national security, life imprisonment, the death penalty, foreign citizens, or Chinese citizens violating the legal rights and interests of foreigners. Civil cases heard by intermediate courts include those related to foreign people or organizations, those that have a major impact on the area under their jurisdiction, and those as determined by the Supreme Court to be under the jurisdiction of intermediate courts. In addition, intermediate courts have the right to hear the following administrative cases: confirmation of patent rights, cases handled by the customs, suits against administrative actions undertaken by the departments under the State Council or by provincial-level governments, and other grave and complicated cases. When an intermediate court considers that the criminal or civil case it is handling is of major importance, it may request that the case be transferred to a superior court for trial.

Higher people’s courts are established in provinces, autonomous regions, and municipalities directly under the central government. They are responsible for handling cases of first instance assigned by laws and decrees to their jurisdiction, cases of first instance transferred from lower courts, appeals and protests lodged against judgments and orders of lower courts, and protests lodged by prosecutors in accordance with trial-monitoring procedures. The first type of case may need to be further clarified: it refers to a situation in which a higher court functions as the court of first instance over criminal, civil, and administrative cases that have a major impact on its jurisdiction, though the cases of major importance are not specifically enumerated. In addition, for verdicts or judgments passed by lower courts that have been found to contain errors, higher courts are authorized to hear or to ask lower courts to re-examine the