China’s Legal System and the Fourth Plenum

As the Chinese Communist Party (CCP) Central Committee’s first meeting specifically devoted to the legal system, the Fourth Plenum, held in October 2014, attracted a lot of attention from those interested in Chinese law. Anyone expecting the official Decision of the Fourth Plenum (subsequently referred to as the Decision) to show a Pauline conversion to the ideology of rule of law, however, would have been disappointed. Even if the leadership were to desire the system of accountability and institutionalized restraint on government that is generally understood by the term “rule of law,” it could not be accomplished anytime soon and would require changes in entrenched features of the current political and administrative system. But what about rule by law—a system of largely predictable and rule-governed behavior by lower-level government administrators, even if those giving the orders are not ultimately accountable or constrained? In this essay I will argue that the Fourth Plenum Decision represents modest progress toward that goal.

The big-picture summary is that the Decision contemplates no fundamental reform in the relationship between the legal system and the CCP. It is clear that, institutionally speaking, the party will remain above the law. At the same time, the Decision does contemplate some genuinely meaningful (and, in my opinion, positive) reforms. It also includes many things that might look meaningful but are not.

This essay will proceed by discussing first the continuing primacy of the CCP. It will then analyze in turn some major and then some minor, yet still meaningful, reforms to the legal system. It will conclude with a discussion of an important reform that was not made: a reform in the system under which local officials administer rules but do not make them. This system inevitably results in the highly discretionary application of rules and makes it difficult—perhaps impossible—to develop truly rule-based government.

Party First, Law Second

In general, whenever the party and the law appear in the same sentence in the Decision, the party comes first. Certainly, it comes first in some important places. For example, section one of the Decision lists several important principles that must be upheld in order to achieve the goal of ruling the state according to law. The first is leadership of the party.

Section six states that judges should be loyal to four things: the party, the state, the people, and the law. Notice which comes last. There is no reason, of course, why this sentence could not be interpreted as giving all elements equal value; in any list something must come first. But in a document like this, nothing—not even a comma—is accidental. The elements of this list come in the order they do for a reason. The “Three Supremes” (sange zhi shang), long associated with former Supreme People’s Court (SPC) president Wang Shengjun (on whose CV not a single day of legal education appears), are resurrected in the same section. Legal system personnel should give highest priority to the cause of the party, the interests of the people, and the constitution and laws—again, listed in that order. Lawyers must support the party’s leadership, and party cells in law firms should step up their activities.

In addition, obedience of officials to law is presented throughout as a kind of internal party policy goal: this is something that party members should do, and officials will even be scored on it (section 7, subsection 3). Those who have a special privilege mentality will be criticized and educated (piping jiaoyu), and if necessary removed from office. But because the Decision contemplates no changes in the relationship between the legal system and the party, the system in which powerful officials can override law if they wish remains comfortably in place. The Decision just wants them to wish to override it less often.

Major Meaningful Reforms

Management of judicial personnel

The Decision calls for significant reforms in the system of managing judges. It proposes to establish essentially a career civil-service model for the judiciary. Junior judges should be selected by provincial-level courts and should start their...