Keith J. Hand

Inside Fight over the American Bar Association’s Tepid Condemnation of Beijing’s Crackdown on Lawyers and Activists

Foreign Policy  online

2015-11-23

In this context, would it have been better for the ABA to have issued a stronger statement — but one that might have jeopardized the good work ROLI, and the ABA in general, has done in Beijing? “The ABA’s programs and exchanges on death penalty procedures, exclusion of illegally obtained evidence, access to counsel, sentencing procedures, and other criminal procedure topics have enriched discourse and debate in China over the past decade,” Keith Hand, director of the East Asian Legal Studies program at the University of California, Hastings College of the Law, said in an email.

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China's Napoleon Complex

Foreign Affairs  online

2015-11-16

Article 33 of the Chinese Constitution states that all citizens are “equal before the law.” In reality, however, the Chinese Communist Party controls the courts and “rights,” such as freedom of speech, are mostly ignored. Discriminating practices largely go without criticism. Keith Hand, director of the East Asian legal studies program at the University of California, Hastings College of the Law states that, simply, there are “not effective legal remedies” against discrimination.

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Kinas Advokater Bag Tremmer [Chinese Lawyers Behind Bars]

Berlingske (Danish)  online

2015-07-29

»Budskabet er ikke til at tage fejl af: Partiet gør det klart, at det kun vil tolerere meget snævre rammer for fortalere for borgernes forfatningsmæssige og juridiske rettigheder. Det vil ikke tolerere rettighedsadvokaters uafhængige forsøg på at organisere netværk eller mobilisere den offentlige mening via internettet, sociale medier eller protester, der kan fremhæve forskellen mellem loven og den politiske virkelighed i Kina,« siger Keith Hand, juraprofessor ved Hastings College of the Law, University of California...

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China’s Crackdown on Lawyers Sparks Debate on Party’s Strength

McClatchy  online

2015-07-26

“We need to acknowledge the possibility of an alternative interpretation,” said Keith Hand, a specialist in Chinese legal reform at the University of California, Hastings College of Law. “It’s possible this is not a sign of fragility, but a sign that they feel very confident, both at home and on the international stage.” Hand points to Beijing’s recent aggressive actions in the South China Sea as one sign of an emboldened regime. Despite international criticism, China has pushed ahead in building artificial islands and military facilities in these disputed waters...

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China’s ‘Rule by Law’ Takes an Ugly Turn

Foreign Policy ChinaFile  online

2015-07-14

In my view, we should understand the wave of lawyer detentions this past weekend as the crescendo of a decade-long campaign by China’s leaders to contain the perceived threat posed by the rights defense movement...

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The Impact of China's New Crackdown on Civil Rights

Deutsche Welle  online

2015-07-24

In this context, Keith Hand, Director of the East Asian Legal Studies Program at the University of California, Hastings College of the Law, explained that China's Communist Party leaders had identified rights lawyers as a potential threat as early as the mid-2000s. "Chinese authorities have since worked to marginalize rights defense lawyers through harassment, the cancelation of law licenses, detentions, and questionable criminal charges. As the Party tightened its grip on the legal system and on political-legal discourse, even moderate rights lawyers who have tried to work within the system have found themselves targets."...

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At Least Six Missing after Clampdown on Human Rights Lawyers in China

The Guardian  online

2015-07-21

Keith Hand, an expert in Chinese law from the University of California, said: “Under [president Xi Jinping’s] leadership the party is showing a new determination to seize control of the ideological and political discourse in China and to marginalise any potential threats [to its power]. Rights lawyers are one of the few groups in civil society that could put pressure on the regime so I think they are basically trying to take away what little space is left for them.”...

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Chinese Authorities Detain More than 200 Human Rights Lawyers

Christianity Daily  online

2015-07-21

Since Chinese President Xi Jinping took power in November 2012, the government has been particularly aggressive toward dissenters like human rights lawyers, resulting in heightened oversight of social media and suppression of news organizations, universities, and underground churches, according to human rights lawyers and organizations. “Rights lawyers are one of the few groups in civil society that could put pressure on the regime so I think they are basically trying to take away what little space is left for them.” Keith Hand, an expert in Chinese law, told the Guardian...

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Rule of Law—Why Now?

ChinaFile  online

2014-10-17

In a recent essay, “How China’s Leaders Will Rule on the Law,” Carl Minzner looks at the question of why China’s leaders have announced they will emphasize rule of law at the upcoming Chinese Communist Party plenum slated to take place in Beijing October 20-23. Why have Party leaders chosen now to discuss the law?...

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China Moves to Reinforce Rule of Law, With Caveats

The New York Times  online

2014-10-23

Even so, judges are still likely to bend rulings toward “local leaders and powerful local interests,” said Keith J. Hand, a professor at the University of California Hastings College of the Law...

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美国法律学者韩凯思建议中国设立宪法法院审查违宪行为 American Legal Scholar Keith Hand Recommends that China Establish a Constitutional Court to Review Unconstitutional Acts

Radio Free Asia  radio

2014-02-06

Discussing the detention of rights lawyer Xu Zhiyong and lack of enforcement of constitutional rights in China (Chinese).

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A Tussle in China over the Communist Party Bowing to the Constitution

The Christian Science Monitor  online

2013-05-24

“Everything is in flux,” says Keith Hand, an expert in Chinese law at the University of California, Hastings College of the Law in San Francisco. “There is great ferment and great debate in China over how you balance the party’s leadership with socialist rule of law and how you give some meaning to the rights set out in the Constitution. These are fundamental political questions that have not been resolved.”...

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谢勇会见美国客人 Xie Yong Meets American Guest

湖南日报Hunan Daily  online

2012-06-27

Discussing meeting between Professor Keith Hand and officials at the Hunan Provincial People's Congress. Mr. Xie Yong, Vice-Chairman of the Hunan Provincial People's Congress, and six officials responsible for Hunan's provincial filing and review system hosted Professor Hand for a discussion on legal issues.

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Citizen Rights, the Constitution, and the Courts

The Wall Street Journal, China Real Time Report  online

2011-09-26

The issue remains live, however, and scholars have noticed that the courts do sometimes refer to the Constitution even if they have not explicitly based decisions on its provisions. In another article, Kellogg and Keith Hand stated that reformers “keep a public spotlight on the deficiencies of the system and maintain pressure for institutional progress” and “are slowly raising public consciousness of constitutional issues.”...

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A Step Forward: New Law Expands Government Liability

The Wall Street Journal, China Real Time Report  online

2007-06-09

China adopted the SCL in 1994 when it joined a worldwide legal trend by establishing legal rules for compensating victims of injuries caused by governmental acts (see Keith Hand, “Watching the Watchdog: China’s State Compensation Law as a Remedy for Prosecutorial Misconduct,” Pacific Rim Law & Policy Journal, vol. 9, No.1, 2000). Even before the amendments became effective, wrongful convictions attracted considerable media attention. In one recent case, a farmer who was imprisoned for 11 years after being wrongly convicted of murder (he had been tortured into confessing), received 650,000 yuan ($97,500) from local courts and police in compensation...

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With New Law, China Reports Drop in Executions

The New York Times  online

2007-06-09

“The problem was that the High Court was serving both as the appeals court and the final review of the case,” said Keith Hand, a senior fellow with the China Law Center at Yale University. “The chance that a court would reverse itself was very small.”...

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Death Penalty Gets Tighter Scrutiny in China

The Christian Science Monitor  online

2006-11-07

If the new law sends a signal about government intentions, it is unclear what practical impact it will have, some observers caution. "How effective it will be in practice depends on the capacity they are able to build," says Keith Hand, a lawyer with the Yale Law Center in Beijing who has long followed China's death-penalty policy...

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China’s Message on Executions

TIME  online

2006-11-03

This week, China's legislature "cleaned up the law by bringing laws into synch with one another," says Keith Hand, a senior fellow at Yale Law School's China Law Center. The new amendment will, in effect, restore death-penalty review to the jurisdiction of the Supreme People's Court, where legal scholars say it always properly belonged. The court has bee preparing for this for more than a year, hiring new judges to handle the increased case load...

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Stram kurs mod pressen (The Press Tightens Up)

Jutland Post (Danish)  online

2006-08-26

Den kinesiske journalist og ansatte hos New York Times i Beijing, Zhao Yan, der i næsten to år har siddet fængslet uden rettergang blev fredag idømt tre års fængsel for bedrageri...

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Chinese Rights Activists Put the Law on Trial

Reuters  online

2006-08-24

"This movement had helped to spread ideas about human rights and government accountability deep into China's hinterland, said Keith Hand, a researcher at Yale University's China Law Centre. “You definitely see a rights consciousness flowing to different levels of society through these cases,” said Hand. “To the extent they've been able to adopt a more de-politicised strategy, they have had some room to operate.”

China's 2018 Constitutional Reforms: A New Era in Chinese Governance?

Association for Asian Scholars 2019 Annual Meeting  Denver

2019-03-10

Balancing Crime Control and Privacy: A Comparative Constitutional Perspective on Technological Information Gathering in Criminal Investigations

Beihang University Law School Lecture Series  Beijing

2018-11-19

Strong Forms and Weak Forms of Judicial Review: Do Chinese Courts Review Legislation in Practice?

Beihang University Law School Visiting Lecture Series  Beijing

2018-11-20

Understanding China’s System for Addressing Conflicts in Legislation: Capacity Challenges and Implications for Constitutional Review

PKU School of Transnational Law Faculty Colloquium  Shenzhen

2016-12-12

Understanding China’s System for Addressing Legislative Conflicts: Capacity Challenges and the Search for Legislative Harmony

9th Annual Conference of the European Chinese Law Studies Association  Hong Kong

2014-11-01

Understanding China’s System for Addressing Legislative Conflicts: Capacity Challenges and the Search for Legislative Harmony

Chinese University of Hong Kong  Hong Kong

2014-11-01

Elite Perspectives on the Rule of Law Panel

Invited Presentation, National Bureau of Asian Research: Contending Perspectives on the Rule of Law in China  Seattle, Washington

2013-11-01

Constitutional Review in China

National Committee on U.S.-China Relations Public Intellectual Program Conference  Washington, D.C.

2013-11-01

Dancing Handcuffed in a Minefield: China's Hidden Heroes in the Criminal Defense Bar

American Bar Association Annual Meeting  San Francisco, CA.

2013-08-01

Comparative Perspectives on the Resolution of Legislative Conflicts

Invited Presentation  Northeastern University, Shenyang, China

2012-06-01

Resolving Constitutional Disputes in Contemporary China

Law & Society Association  Seattle, Washington

2012-06-01

Foreign Perspectives on the Filing and Review System for Legislation (In Chinese)

Graduate Seminar in Public Law  Peking University

2012-03-01

Resolving Constitutional Disputes in Contemporary China (In Chinese)

Invited Presentation, Constitutionalism Workshop at Chinese University of Politics and Law  Beijing, China

2012-03-01

Legal Dimensions of the U.S.-China Relationship

2011 China Town Hall  University of California, Hastings

2011-11-01

Constitutional Dispute Resolution in China

Hastings International and Comparative Law Society  San Francisco, CA.

2011-11-01

Constitutional Disputes in China,” presented at a panel on “Rule of Law in China: Progress or Retreat?

Institute of East Asian Studies  University of California, Berkeley

2011-10-01

Legal Dimensions of the U.S.-China Relationship

Hastings International and Comparative Law Society  San Francisco, CA.

2011-04-01

China's Legal System at a Turning Point

UC Hastings Alumni Event at K&L Gates  San Francisco

2009-06-10

Western Efforts to Influence Chinese Legal Reform

University of California, Berkeley Law School, Seminar on China and the International Community  Berkeley, California

2009-04-22

Advancing Rule of Law in China

University of Political Science and Law J.D. Summer Program  Beijing, China

2009-06-15

Evolving Forms of Citizen Action in the People’s Republic of China

Yale University China Social Sciences Workshop  New Haven

2006-04-10

Conflict Over Forced Evictions in China

Invited Presentation, Yale Law School Chinese Law Colloquium  New Haven

2004-10-19

The Sun Zhigang Incident: Implications for Legal Reform and Citizen Action in China

Invited Presentation, Cornell University Law School  Ithaca, New York

2006-03-23

China’s Criminal Procedure Law Amendments: What Can We Expect?

US State Department Conference on Rule of Law Developments in China  Washington, DC

2005-11-08

Recent Wrongful Conviction Cases in China and Their Impact on Criminal Justice Reform

Invited Presentation, Yale Law School China Law Colloquium  New Haven

2005-10-11

Panelist: Human Rights and China Policy

US State Department Foreign Service Institute China Panel  Washington, DC

2005-01-18

Translator's Introduction to Liu Songshan, 1981: Embryonic but Inchoate Designs for a Constitutional Committee

2016-02-15

As Professor Liu Songshan of the East China University of Politics and Law explains in his article "1981: Embryonic but Inchoate Designs for a Constitutional Committee," proposals for a constitutional committee have a long history in China’s reform era. In 1982, China’s leaders revised the PRC Constitution as a foundational step in their effort to modernize the country and construct a socialist legal system. During the revision drafting process from late 1980 to 1982, the Secretariat of the PRC Committee on Constitutional Revision debated a range of constitutional reforms, including the creation of a specialized constitutional supervision organ. Professor Liu’s article offers one of the most comprehensive accounts to date of this key discussion on constitutional supervision at the dawn of the reform era. This paper provides an introduction to Professor Liu's article and discusses its relevance to current Chinese debates over constitutional supervision

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Translation of Liu Songshan, 1981: Embryonic but Inchoate Constitutional Committee Designs for a Constitutional Committee

2016-02-15

Translation of 刘松山, 1981年：胎动而未形的宪法委员会设计, available at人民大学中国宪政网.

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An Assessment of Socialist Constitutional Supervision Models and Prospects for a Constitutional Supervision Committee in China: the Constitution as Commander?

2016-01-31

Forthcoming in John Garrick and Yan Chang Bennett eds., China's Socialist Rule of Law Reforms Under Xi Jingping. The October 2014 decision issued by the Fourth Plenum of the 18th Central Committee of the Communist Party of China calls for the perfection of constitutional interpretation and supervision systems. The Fourth Plenum Decision and recent leadership statements have generated speculation that Chinese leaders may consider concrete institutional reforms to strengthen constitutional supervision. They are unlikely to turn to the courts. One alternative to judicial review is supervision by a constitutional supervision committee within the National People’s Congress structure. A range of models for constitutional committees that uphold the unity of state power in supreme people’s legislatures and one-party rule emerged in socialist legal systems. This experience could be applied in China. Arguably, a constitutional supervision committee would strengthen the Party’s narrative that it is building a socialist rule of law state and promote some current governance goals. However, the obstacles to such a committee in China, including leadership precedents, lessons derived from earlier stages of political-legal reform and the collapse of other communist regimes, problems of political sensitivity and capacity, and the importance of flexibility and adaptation in the Party’s governance posture, are significant. For a conservative Party leadership that places a premium on flexibility to maintain its leadership status and to address political-legal tensions in a rapidly changing system, the perceived risks of establishing a constitutional supervision committee are likely to outweigh the perceived benefits.

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Understanding China's System for Addressing Legislative Conflicts: Capacity Challenges and the Search for Legislative Harmony

2013-01-03

While the rapid adoption of legislation has played an important role in advancing China’s reform agenda, it has also produced a large number of legislative conflicts. This legislative disorder has posed challenges for China’s economic and legal modernization efforts. China addresses legislative conflicts primarily through a system of filing and review of legislation at different levels of government. Despite the severity of China’s legislative disorder, state organs with formal authority to annul or amend conflicting lower-level legislation rarely if ever exercise this authority. Citizens enjoy the right to raise proposals for the review of legislative conflicts, but central filing and review organs never respond to these proposals. On the other hand, the people’s courts, which have no formal authority to review legislation, engage in a form of limited judicial review when they choose the legislation to apply in individual cases. To explain such phenomena, we must recognize that the core problem shaping the design and operation of the filing and review system is a multidimensional problem of capacity. Legislative institutions have accommodated limited judicial review of legislation and empowered citizens to raise review proposals primarily because they lack the capacity to carry out their basic functions. These mechanisms should be understood as components of an integrated, multilayered system for supervising legislation. Understanding China’s system in this way reveals both likely limitations and opportunities in future reform efforts. Reforms are more likely to succeed if they acknowledge core capacity limitations, take account of existing patterns of institutional interaction, and effectively leverage the roles of courts and citizens to improve the capacity of the system as a whole. Specifically, reformers should explore ways to strengthen communication links between filing and review organs and people’s courts, encourage citizens to raise concerns about legislative conflicts during the legislation drafting stage, and focus first on addressing conflicts involving lower-level legislation rather than on the sensitive and politicized issue of constitutional review.

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Exploring Constitutional Reforms in the Wake of the Bo Xilai Affair

2012-05-11

n recent years, China’s commitment to “rule in accordance with law” has been called into question as Chinese Communist Party (CCP) leaders have intensified the politicization of legal institutions, de-emphasized judicial professionalism and formal adjudication, and suppressed rights defenders . . .

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Constitutionalizing Wukan: The Value of the Constitution Outside the Courtroom

2012-02-03

Starting last September, a protest in Wukan village made world headlines. After months of tension, thousands of villagers angry over the seizure of their land, inadequate compensation and the death of a villager in police custody expelled village officials and occupied the public square. Provincial party officials eventually diffused the collective dispute with a compromise settlement that authorities have taken some steps to implement . . .

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Resolving Constitutional Disputes in Contemporary China

2011-11-22

Beginning in 1999, a series of events generated speculation that the Chinese Party-state might be prepared to breathe new life into the country’s long dormant constitution. In recent years, as the Party-state has strictly limited constitutional adjudication and moved aggressively to contain some citizen constitutional activism, this early speculation has turned to pessimism about China’s constitutional trajectory. Such pessimism obscures recognition of alternative or hybrid pathways for resolving constitutional disputes in China. Despite recent developments, Chinese citizens have continued to constitutionalize a broad range of political-legal disputes and advance constitutional arguments in a variety of forums. This article argues that by shifting focus from the individual legal to the collective political dimension of constitutional law, a dimension dominant in China’s transitional one-party state, we can better understand the significance of the constitution in China and identify patterns of bargaining, consultation, and mediation across a range of both intrastate and citizen-state constitutional disputes. Administrative reconciliation and “grand mediation,” dispute resolution models at the core of recent political-legal shifts in China, emphasize such consultative practices. This zone of convergence reveals a potential transitional path for resolving constitutional disputes. Specifically, the Party-state could choose to adapt and apply the grand mediation model in the context of constitutional disputes. Grand mediation involves a multilevel, Party-state political consultation that preserves a limited but meaningful role for the judiciary. An adaptation of the grand mediation framework would provide an indigenous dispute resolution model for resolving constitutional disputes, regularize informal constitutional dispute resolution practices, and bring judges to the constitutional interpretation table. At the same time, it would take account of the realities of China’s current political environment. Chinese reformers could use such a mechanism (or existing informal dispute resolution practices) to advance their long-term goals of facilitating citizen-state consultation, reform concessions, and the diffusion of constitutional norms through the Chinese polity.

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The NPCSC: The Vanguard of China’s Constitution

2008-02-04

With Thomas E. Kellogg (co-author) The opening line was short but dramatic: “With Rule of Law Day fast approaching, we renew our call: abolish the reeducation through labor system.” So wrote a group of nearly seventy prominent scholars, lawyers, activists and public intellectuals in a constitutional review proposal issued in November 2007. Addressed to the Standing Committee of the National People’s Congress (NPCSC), the proposal laid out a number of reasons why—in the view of its signatories—the reeducation through labor system (laodong jiaoyang) should be scrapped . . .

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Citizens Engage the Constitution: The Sun Zhigang Incident and Constitutional Review Proposals in the People's Republic of China

2009-01-01

In Stephanie Balme and Michael Dowdle eds., Building Constitutionalism in China Shortly after assuming leadership of the Chinese Communist Party (the CCP) in the fall of 2002, Hu Jintao proclaimed that China’s “broad masses” should view the Constitution as a “legal weapon for safeguarding citizen rights” (Zhongguo xinwen wang 2002). In recent years, citizen activists have tested the limits of this rhetoric by advancing constitutional claims in different legal fora. Some of these efforts have focused on the people’s courts. Other citizens have focused on an alternative legal mechanism that the government has explicitly recognized as a legitimate forum for constitutional complaints: the constitutional review procedure established under Article 90(2) of China’s Law on Legislation (Zhonghua Renmin Gongheguo Lifa Fa 2000). This provision grants Chinese citizens the right to propose ( jianyi ) that the National People’s Congress Standing Committee (NPCSC) review administrative regulations and local laws that they deem to be inconsistent with national law or the Constitution. (This citizen proposal right should be contrasted with the right granted to state organs such as the State Council, the Supreme People’s Procuratorate, and provincial people congresses in Article 90(1) of the same law to demand (yaoqiu ) NPCSC review of such legal conflicts.) Subsequent National People’s Congress (NPC) procedures.

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Can Citizens Vitalize China's Constitution

2007-01-01

Over the past year, senior Chinese leaders have published speeches that were widely interpreted as signals that the Communist Party intends to tighten its grip on legal reform. Indeed, in the run-up to the 17th Party Congress scheduled for October 2007, the Party has targeted legal institutions with a “socialist rule of law” rectification campaign, a number of rights defense lawyers have been imprisoned, and controls over mass media appear to have grown stronger.These trends are cause for concern. But they may also lead to erroneous conclusions about China’s constitutional development. Behind this repressive façade, citizens and the government are engaged in struggles — in many cases over rights to material resources — in which both sides are relying on the law to secure public support. In the course of these struggles, citizens are shaping government action with legal and constitutional arguments and strengthening expectations that state action must have a legal and constitutional basis. Three recent citizen legal claims — two involving tax and compensation issues, and a third involving the well-known constitutional challenge to the Property-Rights Law — illustrate this dynamic. The subtle shifts these cases highlight are no assurance of future progress on constitutional enforcement. But they demonstrate ways in which citizen legal activism is advancing China’s constitutional development, and are worthy of attention.

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Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen Action in the People’s Republic of China

2006-01-01

The Chinese government’s rule of law campaign has created greater awareness of legal issues and generated bottom-up pressure for legal change. This dynamic was highlighted in April 2003, when Chinese media reports on the death of a young man named Sun Zhigang while in police custody sparked a public outcry. This public pressure, coupled with a groundbreaking citizen legal challenge, eventually prompted China’s State Council to dismantle a controversial form of administrative detention called “custody and repatriation.” The Sun Zhigang incident demonstrated that by leveraging a wave of media coverage and public opinion in a case of mass concern, co-opting laws and official rule of law rhetoric, formulating a technical, well-grounded legal appeal within the system, and focusing on modest legal reform goals that did not challenge fundamental state or Party interests, lawyers could successfully accelerate legal reform without triggering the type of damaging backlash directed against other, more politicized citizen actions. Although reformers failed in their secondary goal of creating a precedent for National People’s Congress annulment of an administrative regulation, their efforts had broad impacts in promoting the development of constitutionalism, generating political pressure for law enforcement reforms, creating an enhanced sense of citizen empowerment, and providing a refined model for law-based citizen rights actions. Legal activists have successfully applied similar moderate legal strategies in some subsequent cases, while more aggressive, politicized tactics have prompted negative state responses. Overall, the citizen action strategies refined in the Sun Zhigang incident have provided legal reformers with one path forward for promoting modest but meaningful legal reform in China. Recent government efforts to control the scope and potential impact of some citizen initiatives will provide a key test of the degree to which this reform model is sustainable in the near-term.

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Watching the Watchdog: China’s State Compensation Law as a Remedy for Procuratorial Misconduct

2000-03-01

Abstract: In 1994, China enacted a comprehensive State Compensation Law ("SCL"). The SCL provides individuals and legal entities with the right to compensation in a limited number of situations in which they are harmed by illegal government acts. The purpose of the law is twofold: (1) to guarantee the rights of individuals and legal entities to obtain compensation and (2) to encourage state officials to exercise their powers lawfully. In theory, the SCL provides an important check on the conduct of procurators and other government officials. China's procurators serve dual roles as criminal prosecutors and as supervisors of the legal process. As supervisors of the legal process, procurators are largely responsible for policing themselves and preventing procuratorial misconduct. There are few external controls on procurators, and the controls that exist are weak and seldom applied in practice. This Comment examines the issue of whether the SCL will provide an adequate citizen-based check on procuratorial power. It argues that while the SCL should be considered a positive step towards promoting greater official accountability and protecting individual rights in China, limitations on the scope of the law, flaws in the procedures for state compensation, the limited liability of individual procurators for compensation expenses, and official resistance to the SCL's implementation severely limit the utility of the law as a remedy for procuratorial and other official misconduct.

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Translation of Wang Liming, An Inquiry into Several Difficult Problems in Enacting China’s Uniform Contract Law

1999-01-01

Translation of 王利明, 同一合同法制定中的若干疑难问题的探讨, 政法论坛 , No. 4, 1996, at 52-60.

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Constitutional Supervision in China after the 2018 Amendment of the PRC Constitution: Refining the Narrative of Constitutional Supremacy in a Socialist Legal System

Keith Hand

2019-08-21

Since the drafting of the 1982 PRC Constitution, constitutional supervision has been a key topic of discussion in China’s political-legal reform process. In 2018, the Chinese Party-state took steps to address this unresolved reform issue. While the 2018 constitutional amendments attracted widespread attention outside of China, foreign commentators focused on provisions covering presidential term limits, new anti-corruption organs, and the constitutional status of the Party and “Xi Jinping Thought.” Another, largely overlooked, amendment reconstituted one of the National People’s Congress (NPC) special committees as the “Constitution and Law Committee,” and a subsequent NPC Standing Committee (NPCSC) decision tasked this Committee with detailed constitutional functions. In a related step, new official reports enhanced transparency in the system for filing and review of legislation. This paper provides an introduction to these recent reforms and assesses their significance. It argues that the reforms should be understood as components of a broader constitutional rationalization intended to refine the Party’s narrative of constitutional supremacy, strengthen the legal system as an instrument to discipline China’s bureaucracy, and marginalize citizen constitutional activism. The reforms demonstrate the Party’s confidence that its grip on China’s political-legal system is sufficiently strong that it can reap the legitimacy and governance benefits of building new constitutional supervision infrastructure without incurring material risks that citizens might leverage it to challenge Party authority.

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Chinese Law and Legal Institutions

This course provides an introduction to the legal system of the People’s Republic of China. Students explore the historical foundations of law in China; contemporary Chinese legal institutions and the lawmaking process; the role of the legal system in China’s political, economic, and social reforms; and legal aspects of China’s international relations. The course provides an overview of selected fields of substantive and procedural law, including constitutional law, property law, contract law, administrative law, foreign investment law, arbitration law, and criminal law and procedure. It also includes skills exercises on joint venture contract drafting and client communications.

China and the International Legal Order

China’s rapid economic growth and growing influence on the world stage pose both opportunities and challenges for international legal institutions. This course examines the legal dimensions of China’s rise and its integration into the international community. Topics examined include Chinese conceptions of international law; China’s behavior in the United Nations; China and the international human rights regime; China’s behavior in the WTO; cross-border investment related to China; and Western influences on China’s legal reform process.

Contracts

This course introduces and explores the function of contracts in a free enterprise economy. It covers the evolution and application of common law doctrines and, where applicable, those provisions of the Uniform Commercial Code governing the contracts process, including mutual assent, consideration, reliance, conditions, interpretation of contract language, performance and breach, remedies, impossibility and frustration, beneficiaries, and assignments.

Legal Reform in East Asia

This course is a comparative study of the role of law and legal institutions in the transitions of South Korea, Taiwan, and Mainland China. It is divided into two parts. In the first part of the course, students discuss East Asian legal traditions and perspectives on “rule of law,” examine the East Asian development model, and undertake a general survey of legal reform in each of the three jurisdictions. In the second part of the course, students examine the relationship between law and economic development, the role of law and legal institutions in political transitions in South Korea and Taiwan, and the relevance of experience in South Korea and Taiwan to Mainland China.