On the basis of newly available court decisions, official documents and literature, the panel investigates different layers of the legal effects of the Chinese constitution. Although the Chinese Communist Party holds sovereign power to determine the meaning of the constitution in the one-party state, legal scholarship and court practice advance their distinctive approaches to develop...
Constitutional Review without Constitutionalism? Prospects and Limitations of a Constitutional Review Mechanism in China
The Chinese Communist Party has decided to “strengthen oversight to ensure compliance with the Constitution“, and, for the first time, “advance constitutionality review“. However, “constitutionalism“ has been branded “western“, “capitalistic“, and even become a taboo since 2012. The paper summarizes the recent official blueprint and scholarly proposals, trying to envisage the future picture of the...
Fundamental Rights as “Legal Rights and Interests“ in Chinese Administrative Litigation
Since the Qi Yuling case, the main focus of Chinese constitutional law has turned to the protection of fundamental rights. Doctrinal legal studies do not only cover abstract questions such as the third party effect of fundamental rights or the state‘s duty to protect, but also the analysis of specific fundamental rights. In addition, there...
The Application of Rule-of-Law Ideology in Chinese Judicial Practice
Although the Chinese constitution includes the notion of socialist rule of law, it is generally assumed that this is not a justiciable principle that courts can apply in practice. The meaning of the principle is determined in authoritative documents of the Chinese Communist Party. Based on newly available court decisions, the paper explores in what...
The Limits of Political Rights in China as Seen in Cases
Although the Chinese Constitution includes a comprehensive list of political rights, courts are prohibited from applying fundamental rights in judicial practice. However, this does not mean that judges do not cite fundamental rights in the reasoning part of court decisions. According to the Supreme People‘s Court open access court decision database courts have cited the...