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1、Finding Chinese Law on the InternetBy Joan LiuJoan 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
2、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. Lius most recent article on Chinese legal information is Beyond the Border: The Chinese Legal Information System in Cyberspace, International Journal of Legal Informat
3、ion, 29.1 (2001). Her latest translation of legal works is Freedoms Law: The Moral Reading of the American Constitution by Ronald Dworkin, Oxford Press (1996), Shanghai Peoples Press, (2001).Ms. Liu is a member of both the American Law Library Association (AALL) and Association of American Law Schoo
4、ls (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 ContentsChapter 1: The Chinese Legal System and Legal Informatio
5、n SystemCharacteristics and Sources of LawLegal Information System in China Eastlaw vs. Westlaw: the Impact of the Internet on Chinese Legal InformationChapter 2: Major Chinese or Bilingual Online SourcesSources in English or Bilingual with ChineseSources in ChineseChapter 3: Features of Online Sour
6、ces and Search StrategiesEvaluating Chinese Online Legal ResourcesStrategies of Online Legal ResearchSome Misconceptions of Online ResourcesResearching Chinese Law on the Internet: A Sample ProblemChapter 1: The Chinese Legal System and Legal Information SystemCharacteristics and Sources of Chinese
7、LawThe Chinese legal system: an atypical example of the division of legal systemsA great deal of research has been done in recent years on the portrayal and evaluation of the Chinese legal system.i Unlike the dry and eight-part-essay-ish (stereotypical) style used by Chinese legal scholars in the ad
8、vent of legal reform in the 1980s, recent research offers a more trustworthy analysis from a neutral, reasonable, and objective perspective on the history and status quo of the Chinese legal system. Some examples are: Xin, Chunying, Chinese Legal System & Current Legal Reform. Beijing: Law Press (19
9、99); Hsu, C. Stephen, Understanding Chinas Legal System, New York University Press (2003); Chen, J. Chinese Law: Towards an Understanding of Chinese Law, Its Nature and Development, Kluwer Law International (1999).i The legal scheme of the Peoples Republic of China seems to be a combination of tradi
10、tional 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 Communi
11、st 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
12、, which was officially established in 1949, was based on Marxism and Leninism.ii See Amendment to the Constitution of the Peoples Republic of China (March 15, 1999), in the Preamble of the Constitution, Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping Thought are established as the guidance fo
13、r all political and legal activities. (See isinolaw at )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. (Befor
14、e 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 In the legislativ
15、e process, relevant foreign laws are studied and researched, and foreign legal experts invited for consultation. Professor Jerry Cohen of New York University Law School, a prominent Chinese law expert, had assisted the Ministry of Finance in its work on international taxation law in 1979 when he was
16、 a professor at Harvard Law School. See Hsus Understanding Chinas Legal System, supra note 1. His colleague at NYU, Professor Richard Steward, was also invited by the Environmental Protection Committee of the Standing Committee of the Peoples Congress as a foreign expert. See http:/www.law.nyu.edu/f
17、aculty/profiles/bios/stwartr_bio.html. Unlike the legal reform of the Qing Dynasty during the late 19th century, which used Germany and Japan, members of the civil law family, as models of modernization to Chinese law, current legislation emphasizes more on legislative ideal and techniques. It is, h
18、owever, not restricted to any particular law family.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
19、 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 David, Rene, Majo
20、r Legal System in the World Today: An Introduction to the Comparative Study of Law.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
21、the first wave of legal reform that started at the end of the Qing Dynasty.v See Chen, J., Chinese Law: Towards an Understanding of Chinese Law, Its Nature and Development. Kluwer law International, 1999. The author makes concise remarks on the legal reforms between the end of the Qing dynasty to th
22、e beginning of the Republic of China.v However, Chinas 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 7th century, to the Gre
23、at Qing 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 A
24、dministrative 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 Xiaopings (the former Preside
25、nt of the PRC and a giant of the Party) theory of one country, two systems. The National Peoples 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 area
26、s. (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 l
27、aws, 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 peoples current
28、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.So
29、urces of the law of the PRC, HKSAR, and Macao SARAs 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
30、-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 Peoples Republic of China on Legislation (2001), the NPC and its Standing Committee pass the na
31、tional 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, administ
32、rative, 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 St
33、ate Councils regulations. Local congressional and government bodies enact local laws and administrative measures. The Peoples Congress of National Autonomous Regions is empowered to enact autonomous regulations. However, they cannot be in conflict with national statutes.vi See The Law of the Peoples
34、 Republic of China on Legislation (July 1, 2000), article 7, 56, 63 through 66, isinolaw ().vi Judicial decisions are not considered official sources of law. The judgments of the Supreme Peoples Court are, however, factually respected by the lower courts and used as guidelines when the provision of
35、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) law
36、s 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 See Dobinson, Ian and Derk Roebuck, Introduction to Law in the Hong Kong SAR. 2nd ed. Sweet & Maxwell Asia, 2001.viiAs a colonial region, Macaos legal order
37、 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
38、 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 See the Basic Law of Macao SAR at http:/www.dsi.gov.mo/documents/law_basic_law_index_c.html.viiiThe Legal Information System in ChinaAlthoug
39、h 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
40、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 stud
41、y 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
42、 system of subject classification, underdeveloped library facilities and services, and the shortage of information specialists.Problems in accumulating and accessing legal informationDue to the absence of law for nearly three decades in China after the establishment of the PRC in 1949, the developme
43、nt 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 leg
44、al information professionals were few.ix According to Zhongguo Chu Ban Nian Jian (Yearbook of Chinese Publishing) by Shang Wu Yin Shu Guan, 1980-, from 1975 to 1979, 79 law books were published; from 1980 to 1989, the number has jumped up to 3446 titles in 10 years; from 1990 to 1999, it increased f
45、ivefold from the previous ten years up to 15433, 1540 per year; and in 2000, 2051 law books were published in one year alone.ix Moreover, few financial resources were available to legal education and research institutions, government agencies, and law enforcement and judicial institutions in the ama
46、ssing 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 certai
47、n 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 countr
48、y 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 See id.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 h
