Finding Chinese Law on the Internet
By Joan Liu
Joan Liu is an associate curator and head of the Acquisitions & Serials Department of the New York University School of Law Library. She received her LLM from the East China Institute of Politics and Law (1988) and her MLS from Rutgers University in New Jersey (1995). Before her career as a law librarian in the United States, Ms. Liu taught law in her Alma Mater from 1988 to 1989.
Ms. Liu's most recent article on Chinese legal information is "Beyond the Border: The Chinese Legal Information System in Cyberspace", International Journal of Legal Information, 29.1 (2001). Her latest translation of legal works is Freedom's Law: The Moral Reading of the American Constitution by Ronald Dworkin, Oxford Press (1996), Shanghai People's Press, (2001).
Ms. Liu is a member of both the American Law Library Association (AALL) and Association of American Law Schools (AALS).
*This article is excerpted from Roaming the Virtual Law Library: A Guide to Online Sources for Legal Researchers, edited by Joan Liu and Liying Yu, Law Press China (2004), with minor revisions.
Published February 2005
Table of Contents
Chapter 1: The Chinese Legal System and Legal Information System
Characteristics and Sources of Law
Legal Information System in China
Eastlaw vs. Westlaw: the Impact of the Internet on Chinese Legal Information
Chapter 2: Major Chinese or Bilingual Online Sources
Sources in English or Bilingual with Chinese
Sources in Chinese
Chapter 3: Features of Online Sources and Search Strategies
Evaluating Chinese Online Legal Resources
Strategies of Online Legal Research
Some Misconceptions of Online Resources
Researching Chinese Law on the Internet: A Sample Problem
Chapter 1: The Chinese Legal System and Legal Information System
Characteristics and Sources of Chinese Law
The Chinese legal system: an atypical example of the division of legal systems
A great deal of research has been done in recent years on the portrayal and evaluation of the Chinese legal system.[i][i] The legal scheme of the People's Republic of China seems to be a combination of traditional Chinese culture and the Soviet model, mixed with the characteristics of the civil law family.
The current legal order in China is completely new from an ideological point of view, coming into existence after the Kuomingtang (KMT) government was abolished, and its leader defeated by the Communist Party in 1949. However, certain traditional influences, for instance, the ethical nature of the law reflecting the teachings of Confucianism, a school of thought dating back over two thousand years ago in Chinese history, remain distinct features of the law of the PRC.
The present legal framework, which was officially established in 1949, was based on Marxism and Leninism.[ii][ii] Before the Chinese government adopted the Open Door Policy in 1978 to promote economic development within the country, a series of successive political disruptions had disturbed the formation and progression of the modern legal order. (Before the Criminal Code was enacted in 1979, the Constitution Law passed in 1954 was the only statute for 25 years!)
Massive legislation from the late 1980s, which emulated the legislative experiences and techniques of Western countries, was beyond the structure of the Soviet model.[iii][iii] Socialism, however, remained the foundation of the law, as did its ultimate goal of becoming an instrument of social order and control. Consequently, the law had no place for such ideals as justice and equity, which are often claimed by Western society.
As shown by its legal structure and form, the laws of the PRC share the same characteristics of the civil law system rather than those of common law. As concluded by Rene David, "Chinese law.can be ranked within the family of the laws deriving from the Romanist tradition".[iv][iv] As David stated, this can be partly attributed to Europeanization (which more specifically refers to the legal systems of Germany and Japan, not Britain and the United States), the movement which took place during the first wave of legal reform that started at the end of the Qing Dynasty.[v][v] However, China's own rich history of over two thousand years' worth of written law traditions, ranging from the Qin Code during the Qin Dynasty in 220 BC, to the most complete and mature Tang Code (Tanglue Shuyi) of the Tang Dynasty in the 7thcentury, to the GreatQing Code of the Qing Dynasty (the last monarchy of China during the 7th--20th centuries), to the Six Codes of the Republic of China before 1949), also contributed heavily to modern day Chinese law.
The two legal systems of the Hong Kong Special Administrative Region (HKSAR) and the Macao Special Administrative Region (Macao SAR), however, are the exceptions from the legal framework of the PRC. The two are responsible for adding many unconventional and unprecedented traits to the Chinese socialist system.
The HKSAR and the Macao SAR were set up directly under Deng Xiaoping's (the former President of the PRC and a giant of the Party) theory of "one country, two systems." The National People's Congress (NPC) enacted both the Basic Law of the HKSAR (adopted on April 1990) and the Basic Law of the Macao SAR (adopted on March 1993) before the PRC resumed its exercise of sovereignty over both areas. (The Basic Law of the HKSAR can be found online in both Chinese and English, along with the Basic Law of the Macao SAR. This was done for the purpose of maintaining state dominion over the special economic positions of these two regions.
The two Basic Laws of the HKSAR and Macao SAR are national laws, not local laws. As such, no other laws, ordinances, administrative regulations, and normative documents of the HKSAR and the Macao SAR shall violate their Basic Laws. Furthermore, it is stated clearly in the Basic Laws of both regions that the existing capitalist system and the people's current way of life shall remain unchanged for the next 50 years. Laws previously in force are also kept and maintained. Hence, the legal systems in both regions have combined the characteristics of both civil and common laws, creating a political scheme that is a mixture of both capitalism and socialism.
Sources of the law of the PRC, HKSAR, and Macao SAR
As mentioned above, though the Chinese legal system claims to be distinct from all other legal systems, jurists of the PRC follow the rules of the civil law family. The legislation of the PRC reflects a structural similarity to countries of the Romano-Germanic family. Moreover, Chinese jurists value legal doctrines and hold written law in high esteem; concrete judicial decisions are not officially considered a source of law.
According to the Law of the People's Republic of China on Legislation (2001), the NPC and its Standing Committee pass the national statutes, including the Constitution Law, criminal substantial and procedural laws, civil principles and procedural laws. The NPC and the Standing Committee are the highest authority in the land.
In China, legal interpretations are commonly grouped into three categories: legislative, administrative, and judicial. The State Council is empowered to enact administrative regulations in accordance with national laws. Government agencies, ministries and commissions, which are under the State Council, are vested with the power to issue orders, measures, and directives in conformity with the State Council's regulations. Local congressional and government bodies enact local laws and administrative measures. The People's Congress of National Autonomous Regions is empowered to enact autonomous regulations. However, they cannot be in conflict with national statutes.[vi][vi]
Judicial decisions are not considered official sources of law. The judgments of the Supreme People's Court are, however, factually respected by the lower courts and used as guidelines when the provision of law is in obscurity.
The main sources of the laws in the HKSAR are: (1) Basic Law; (2) laws stipulated in the Basic Law, Article 8 (that is, the common law, rules of equity, ordinances, subordinate legislation, and customary law previously in force in Hong Kong); (3) laws enacted by the SAR; (4) laws enacted by the NPC or its Standing Committee (which are defense and foreign affaires related, and as stated in the Basic Law, Article 18).[vii][vii]
As a colonial region, Macao's legal order was based upon the Portuguese legal system, which belongs to the civil law family. The Macao Basic Law by the NPC became its constitutional law after she was returned to mainland China. However, Portuguese laws that were formerly applied to Macao, but not in conflict with the Macao Basic Law, still remain in force. Also, the laws enacted by the Macao SAR legislature and other administrative regulations passed by the government are still law in Macao.[viii][viii]
The Legal Information System in China
Although a tremendous amount of legal materials on Chinese law can be found on the Internet nowadays, an adequate information structure - a systematized information unit consisting of laws and regulations, case reports, law treatises, law reviews, and finding tools (such as an index and digest) - is still in the early stages of construction. Some components of the legal information system, such as finding tools, updating services, and citation standards, took years before they were forged into the Western systems. Without a comprehensive legal information system, which is the foundation of legal study and practice, legal research cannot be conducted accurately and efficiently.
In China, the major predicaments or challenges we face include the scarcity of legal information, the high difficulty of information access, the quality of legal publishing (which is below standard), the lack of a uniform system of subject classification, underdeveloped library facilities and services, and the shortage of information specialists.
Problems in accumulating and accessing legal information
Due to the absence of law for nearly three decades in China after the establishment of the PRC in 1949, the development and progress of legal scholarship had been bleak in the country. Of the minimal amount of research publications available, most are directly copied from the works of the former Soviet Union or simply political propaganda. Attention to and study of legal information access were almost zero and legal information professionals were few.[ix][ix] Moreover, few financial resources were available to legal education and research institutions, government agencies, and law enforcement and judicial institutions in the amassing of limited materials.
Law schools had no steady resources to establish a competent collection to support legal teaching and research. Textbooks that were rife with political preaching ideals and Soviet doctrines were the main teaching materials, and often the only materials available for certain subjects. As a result, law graduate students in the 1980s found themselves trapped between dual difficulties-the scarcity of legal materials and the lack of fundamental communication means for their theses. Consequently, a huge portion of their time was spent physically traveling around the country to collect information and data and visiting other law schools to exchange ideas and insights with their colleagues in person.
At the end of the 1980s, the renaissance of legal research resulted in the flourishing of the legal publishing industry.[x][x] However, the collection of legal materials is not well balanced. Unlike those major law schools in big cities (which were supplied with more governmental and other funds), small to medium-sized law schools in the hinterland and judicial institutions have been struggling with the lack of basic legal materials.[xi][xi]
Paradox of legal publishing and classification of the law
The proliferation of legal publishing since the 1980s[xii][xii] did not automatically form a solid legal information structure to serve legal research. Instead, problems from legal publishing still impede the development of a strong system supporting legal research.
The major problem is the utilitarian and pragmatist approach of the legal publishers, which are mostly owned by the state. These publishers are the ones who determine the publishing scheme, and they pay little attention to adopt commonly accepted techniques (such as providing an index, digest, and standardized or unified citation). Moreover, law classification is primitive and not uniform, two factors that play important roles in restraining the development of a competent legal information system in China.
Instead of a well-balanced scholarly and practitioner-oriented publishing scheme for primary and secondary sources (seen by West Publishing as the base of the information pyramid[xiii][xiii]), publishers are driven more or less by the idea of profit making. The utilitarian values adopted by legal publishers have resulted in the repetitive publishing of practical materials, popular legal readings (such as law or regulation compilations), and all sorts of legal handbooks. This pragmatic tendency has squandered precious resources, hindering the production of research tools that are really needed. For example, the legal periodical index, which is the most fundamental finding tool in legal research, only came out in 2001, while the "Reprint of Newspaper and Journals" by the People's University has been continually published over the decades. The "China Academic Journals" by Tsinghua University, another powerful secondary source for various subjects, including law, has only recently been released onto the Internet. Before these major research tools were available, the frustration experienced by legal researchers from China and elsewhere cannot be described appropriately to give it justice.
Some legal publishers, however, have started to emulate the format and method of Western publishing styles-for instance, the Laws of the People's Republic of China, a loose-leaf service by the Legal Affairs Committee of the Standing Committee of the NPC. This 16-volume loose-leaf set follows, to a large degree, the structure of the Commerce Clearing House (CCH), a savvy loose-leaf producer. Furthermore, each volume of the set comes with a very comprehensive index.[xiv][xiv]
However, the majority of legal publications have not yet adopted the standard rules and techniques of information management. Without these standards and techniques, information retrieval becomes problematic. Law compilation under various titles is a typical example of the above. After roughly browsing a law bookstore or an online catalog, one can find hundreds of different kinds of law compilations amassed by different agencies and published by different publishers.[xv][xv] Such compilations are commonly put together chronologically according to when the laws were enacted and then grouped by different subjects. They are usually published as multiple volumes, and the table of content only appears in the first volume. Because of the lack of indices, if one is clueless as to the title of the document or its citation, one has to read through the whole set to locate specific documents.
Moreover, since systematic updating services are not yet available, researchers sometimes have to "shepardize" the laws themselves to make sure that the information they have is current and up to date. The Criminal Code can be used as an example. This Code had not been comprehensively amended until 1997, after it was initially enacted in 1979. Over the years, the NPC has released over twenty amendments or supplemental decisions, published individually, but not consolidated with the Code itself. Therefore, researchers not only have to read through the whole Code, but also all supplemental materials.[xvi][xvi]
Among the several classification systems, there are three major ones: the People's University Library Classification, the Beijing Library Classification, and the Science Academy Library Classification. The Beijing Library Classification system, the recommended standard classification schedule, is widely used by academic libraries, including law libraries. The dissonance generated by the multiple classification systems and the primitiveness found in subject classification affect information retrieval and sharing.[xvii][xvii]
Predicaments of law libraries
Due to the indifference shown to those who pursue law scholarship, the law librarian is considered as one of the less favorable professions in China. This has resulted in an underdeveloped legal information system and a shortage of legal information specialists. After the economic and political reforms of the 1980s, there was a great demand to learn more about the other legal systems of the world and also how to access legal information. When Chinese legal scholars were finally given the opportunity to study in the West, they were amazed and impressed by the sophistication of the Western legal information system. Learning not only the substantial laws, but also the methods and techniques of conducting legal research, this group of legal scholars returned to China with expectations of a corresponding legal information system. Consequently, they became the first library constituency in law schools who pushed for progress on a legal information system in China.