ABSTRACT
The emphasis on legal protection of the citizens’ legitimate rights and interests against official infringements is a recent phenomenon. Traditionally China was a state largely governed by rule of virtue (Dezhi) rather than rule of law; the power of the government, headed by the emperor, did not observe any limits as defined by law. The prevention against the misuse of power was primarily not by means of legal obligations, but by (mainly Confucian) moral education and institutional checks and balances. If a person’s interests were improperly infringed by an official action, he could complain and sought a political solution, yet judicial remedy was unknown. The systematic protection against official violations was made available only recently. Decisive progress was made in 1990, with the enactment of the Administrative Litigation Law (ALL), which allows a citizen to sue against the administrative organ for violation of his legal rights and interests. Yet the scope of judicial review has been limited to “concrete”administrative adjudications, leaving a variety of “abstract” administrative acts free from any effective control. Most important, the court is not empowered to interpret the Chinese Constitution and adjudicate accordingly. The 96most recent judicial developments has made it possible to transcend these fundamental limits, and to even accomplish a transition from limited administrative rule of law toward true constitutionalism.
Divided into several parts, this paper is a general survey of the recent progresses in the Chinese public law. First, it provides a brief history of the Chinese ideas about rule of law, and explain the “balance theory” as a prevailing public law doctrine today. Second, it focuses on the meaning of “law” (and thus of “legal interest” to be protected by the Constitution and the ALL) in the Chinese public law system, and discusses “laws” at different levels and their legal effects, as defined in the ALL and other major legislations. Third, it traces the major legislative developments in administrative law in the recent two decades, points out their deficiencies, and then moves to the recent judicial developments. The paper ends with a discussion on the latest case that arguably “judicializes” the Chinese Constitution and the future reforms that are necessary for more effective protection of the citizens’ rights.
