The Power of Judicial Review in the People’s Republic of China
China is a state with a unitary and centralized constitutional structure. The Constitution is a fundamental law and supreme legal authority, and the legislative branch, the judicial branch, and the procuratorate are the main governmental branches. However, the former dominates over the others. Executive power and judicial power are subordinated to the National People's Congress (NPC). It distinguishes China's political system from western ones.
Nowadays, Article 5 of the Constitution states that " [n]o law, administrative regulation or local regulation shall conflict with the Constitution." According to article 132 of the Constitution, the Supreme People's Court (SPC) is the highest judicial organ. Nevertheless, legislative organs of China have the right to supervise the work of courts of the appropriate level and appoint and remove judges. Though article 131 states that "[t]he people's courts shall independently exercise adjudicatory power, and shall not be subject to interference from any administrative organ, social organization or individual," article 133 provides that "[t]he Supreme People's Court shall be responsible to the National People's Congress and the National People's Congress Standing Committee [NPCSC]. Local people's courts at all levels shall be responsible to the state organs of power that created them."
Moreover, since the Chinese judiciary does not have an independent budget, courts are directly funded by corresponding level governments. It puts them in a subordinate situation. China adheres to the principle of "independent trial" instead of "judicial independence." It is deemed in China that Courts without supervision could abuse their powers, so their work should be supervised within the scope of the independent trial. Thus, the powers of the judiciary are limited. As mentioned above, the Supreme People's Court itself is responsible to both NPC and NPCSC.
Therefore, in contrast to American and European judicial review systems, where courts exercise all types of review, this role is shared by several organs in China. Article 67 of the Constitution empowers NPCSC to interpret the Constitution and other laws and oversee their enforcement. On the contrary, SPC does not possess the same power as NPCSC to interpret the Constitution and laws of China. Instead of giving the court the powers of judicial review, NPCSC created a new division of Legislative Affairs Commission (LAC), Office for Recording and Reviewing Regulations. This unique agency is authorized to review the recorded legislation.
Nevertheless, the processes of globalization did not avoid China, which nowadays is one of the most influential players in the international arena. China joined the World Trade Organization (WTO) on December 11, 2001. Article X of the General Agreement on Tariffs and Trade (GATT), which all WTO members should apply, calls for the necessity of "judicial, arbitral or administrative tribunals or procedures for the purpose, among other things, of the prompt review and correction of administrative action relating to customs matters." The Chinese government implemented several steps to fulfil the requirements under the WTO rules. In 2002, SPC issued Provisions of the Supreme People's Court on Several Issues Concerning the Hearing of International Trade Administrative Cases that gave persons a right to challenge the international trade administrative cases and empowered the people's courts to "make the legal examination of . . . specific administrative acts." In the same year, two other judicial interpretations were promoted.
On November 1, 2014, NPCSC promulgated the amended Administrative Litigation Law (ALL), which entered in force on May 1, 2015. The amendments eased the procedure of bringing administrative lawsuits and made it more efficient. First, the scope of administrative acts that can be challenged was sufficiently enlarged. Second, according to the revised law, courts are now empowered to examine the impropriety of the contents of administrative acts in addition to already existing powers to examine the correctness of application of the new law, insufficient evidence, procedural defects, etc. Article 1 emphasizes the purpose "to protect the lawful rights and interests of citizens, legal persons, and other organizations, and to supervise the exercise of administrative power." Thus, the legislator explicitly proclaims the aim of this law to limit and control the government powers. However, the 2017 amendment to the ALL excluded non-government organizations from brining public interest administrative litigation, granting this power exclusively to the procuratorate.
To conclude, the judiciary in China is more limited in powers than in Western countries. The current review mechanism in China is represented mainly by legislative and executive reviews. In contrast, the powers of judicial review are limited due to its narrow scope and lack of judicial independence. However, during the last several decades, China made impressive efforts to reform its judicial system. Such factors as the development of economy, public self-consciousness, and more active China's collaboration with foreign counties and international organizations also influenced this development. The ongoing judicial reforms show a positive dynamic of strengthening the Chinese judiciary. Nevertheless, there are different views on the actual scope of judicial review powers and their future prospects.