Number 3

SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA Professor Larry Catá Backer organized a superb symposium on Constitutional Review in the People’s Republic of China for the Suffolk University Law Review. The topic is clearly an important one not just in China, but throughout the world, which witnessed a flowering of constitutionalism in the latter part of the twentieth century. Although constitutionalism in the United States remains curiously and stubbornly different from the norm around the globe, the ideas born in the forge of the American Revolution have clearly played a role in shaping constitutionalism around the world. The title of the symposium—“Constitutional Review in China”—provides the key to understanding the participants’ contributions. Although constitutional judicial review has become the norm throughout the world’s [...]

SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA There are great shifts in constitutional thinking taking place today in China among elite Chinese constitutional scholars. Among this group of influential constitutional law scholars, Hu Jintao’s concept of scientific development (科学发展观) has taken a concrete turn in the advancement of theories of Chinese constitutionalism under its current normative framework.  One of the more highly debated issues within Chinese constitutional law circles is constitutional review. The debate centers on the viability of transposing some version of the current parliamentary model of constitutional review into the Chinese constitutional system.  Western models of constitutional review seem to insist on the necessity of an independent judiciary with a constitutionally sanctioned supervisory role over administrative and political organs as a [...]

SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA A general perception exists that constitutional review is not a part of modern Chinese jurisprudence. That view is mistaken. The aim of this essay is to show that, while substantial constitutional change has not yet been established, it is arguable that a unique Chinese brand of constitutionalism has taken root and is evolving. A classic understanding of the concept of judicial review is “a court’s power to review the actions of other branches or levels of government,” including a court’s “power to invalidate legislative and executive actions as being unconstitutional.”  Judicial review has become an established part of contemporary constitutionalism in Western jurisprudence. Constitutional review, another expression of judicial review closely associated with the discussion [...]

SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA   Nulla poena sine lege is a fundamental principle of criminal law. Its application is closely related to a basic understanding of criminal justice and separation of powers. The 1997 Chinese Criminal Law adopts a modified version of this principle. This modified version includes a negative and a positive dimension, and appears to be more rigid on the surface than the classic conception of the doctrine. However, in view of China’s penal statutes, the rigidity of the Chinese nulla poena doctrine has been offset by broad sentence ranges, vague criteria for offense classes, unconstrained sentence mitigation and multi-functional sentencing circumstances. . .

SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA On July 24, 2001, the Supreme People’s Court of China (SPC or the Supreme Court) promulgated a new judicial interpretation. This interpretation, commonly referred to as the “Reply to Qi Yuling’s Case” took effect on August 13, 2001.  On December 18, 2008, however, the Supreme Court annulled twenty-seven judicial interpretations at once, including the Reply to Qi Yuling’s Case. The reason given for the annulment of the Reply was that it was “no longer applicable.”  From its birth to its demise, the Reply survived seven years, four months, and five days in China’s legal system. Although it was never actually applied to a single case after Qi Yuling’s Case, there were disputes regarding the Reply [...]

SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA The Communist Party of China (CPC or the Party) is the absolute power center in Chinese politics. Deng Xiaoping made the Four Cardinal Principles paramount in Chinese politics: upholding the socialist path; the people’s democratic dictatorship; the leadership of the CPC; and the Marxism-Leninism-Mao Zedong Thought.  Thus the Party stands aloof, assumes general oversight and coordinates all sides of the executive agencies, the National People’s Congress (NPC), the Chinese People’s Political Consultative Conference (CPPCC), and other mass organizations. If the latter is the flesh, and the armed forces the bones, of the Chinese political body, the Party is undoubtedly its brain, main nerves and tendons. The Party leads and controls all other political (and not [...]