Suing the Sovereign Observed from the Chinese Perspective:The Idea and Practice of State Compensation in China
王锡锌
【全文】
Suing the Sovereign Observed from the Chinese Perspective:
The Idea and Practice of State Compensation in China
Xixin Wang*
I. Introduction
Unlike in the United States and other Western democratic societies, the Chinese Constitution of 1982 (Constitution) has not adopted separation of powers as a fundamental principle of setting up the structure of state powers. Instead, the Chinese Constitution embraces the National People’s Congress System, which looks like the British parliamentary system to some extent. Under the people’s congress system, people’s congresses at national level and sub-national levels are sources of state powers, which means both the executive power and the judicial power derive from the people’s congress at corresponding levels and are subject to its control.
Because of the people’s congress system, a constitutional provision guaranteeing judicial independence such as Article III of the U.S. Constitution does not exist. Although the Chinese Constitution declares that the courts shall be independent of any person, organization or government agency,
the courts lack independence for political, legal, personnel, institutional, and financial reasons. For example, the people’s congress or its standing committee at a corresponding level must select or approve all court judges, subject to removal. In addition, local people’s governments designate—based on administrative regional divisions—and finance the local courts. Subsequently, local governments subject local courts to financial and political control. All these institutional arrangements have resulted in serious problems in terms of judicial independence, particularly in the context of suing the government.
Structurally, two categories divide the Chinese courts: namely, courts of general jurisdiction and courts of special jurisdiction. Four levels establish the courts of general jurisdiction. The lowest level is the county level. Each county has a court, resulting in more than 2,200 county courts across the country. At the next level are intermediate courts, which exist in every major city. At the provincial level, there are thirty-two high courts. The Supreme People’s Court is the highest judicial organ in the country. Courts of special jurisdiction include the Military Court, Maritime Court, and Railway Court, all of which are subordinate to the Supreme Court. In 2001 statistics showed that there were over 300,000 judges (including assistant judges and law clerks) in the court system.
