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National treatment, transparency, and rule of law : evolving issues on the conformity of China’s legal.. Wang, Chao 2003

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N A T I O N A L TREATMENT, T R A N S P A R E N C Y , A N D R U L E OF L A W : E V O L V I N G ISSUES ON THE CONFORMITY OF CHINA'S L E G A L S Y S T E M WITH WTO'S PRINCIPLES by Chao Wang M.A., The University of British Columbia, 2003 L L . B . , Shanghai Institute of Foreign Trade, 2001 A THESIS SUBMITTED IN PARTIAL F U L F I L M E N T OF THE REQUIREMENTS FOR THE DEGREE OF M A S T E R OF L A W S in  THE F A C U L T Y OF G R A D U A T E STUDIES ( F A C U L T Y OF LAW) We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH C O L U M B I A August 2003 © Chao Wang, 2003  In p r e s e n t i n g  t h i s t h e s i s i n p a r t i a l f u l f i l l m e n t of the  requirements  f o r an advanced degree a t the U n i v e r s i t y of B r i t i s h Columbia, I agree t h a t the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e and I f u r t h e r agree t h a t p e r m i s s i o n f o r e x t e n s i v e f o r s c h o l a r l y purposes may  c o p y i n g of t h i s  be g r a n t e d by the head of my  by h i s o r her r e p r e s e n t a t i v e s .  thesis  department or  I t i s understood that copying or  p u b l i c a t i o n of t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l not be w i t h o u t my w r i t t e n p e r m i s s i o n .  Department of The U n i v e r s i t y of B r i t i s h Columbia Vancouver, Canada  study.  allowed  ABSTRACT  Following the trends of the Globalization, the principles of Nondiscrimination, Transparency and Rule of Law, are all becoming the core principles of globalized norms of economic regulation, which have always known to be associated with G A T T and the W o r l d Trade Organization ( W T O ) .  Following the accession of the People's Republic of China to the W T O , it is well understood that the requirements for the conformity of laws and regulations inside and outside of China to W T O are high, especially in terms of the conformity of China's regulatory system of economic regulations to W T O ' s Principles of national treatment, transparency, and rule of law.  This paper w i l l examine the conformity of W T O ' s Principles of National Treatment, Transparency, and Rule of L a w with China's regulatory system of economic regulation, especially with a focus on the compliance of globalized norms of economic regulation with China's local norms and local values, and the legal and political culture. A t the same time, this paper aims to discover the institutional approaches that protect and facilitate judicial independence. Attention is also paid to the influences of the institutions system on impartiality and accountability of judicial practice through facilitating judicial independence.  T A B L E OF CONTENTS  Abstract  ii  Table o f Contents  :  Acknowledgements  CHAPTER I  Introduction  A . W T O ' s National Treatment Requirement B. W T O ' s Principle of Transparency C. Rule of L a w and Judicial Independence in China  C H A P T E R II  iii iv  1 2 3 6  Legal Framework of China's Economic Regulation  10  A . National Treatment and Foreign Investment Laws B. Transparency and Access to Information and Judicial Review C. Rule of L a w and Judicial Independence  11 13 20  C H A P T E R m Performance Record and Functional Issues  26  A . Examining the Compliance of China's Legal System with Its W T O Obligation from the National Treatment Perspective: "Super National Treatment" and Foreign Investment Guidelines 26 B. Examining the Compliance of China's Legal System with Its W T O Obligation from the Transparency Perspective: Evolving Issues in the "Internal Documentations" and Judicial Review 41 C. W T O ' s Rule of L a w Principle of China's Judicial Reform 74  C H A P T E R IV  Bibliography  Conclusion  99  105  in  Acknowledgement I would like to express m y deepest gratitude to Professor Pitman Potter, who served as my supervisor for my two Master's programs at U B C , and w i l l remain so for m y forthcoming Ph.D. Program at U B C Faculty o f Law. I would like to thank Dr. Potter for his consistent encouragement and guidance during the period o f my study at U B C . I truly appreciate his guidance, research method and comments, which are always exceedingly helpful, and without which my thesis would not be possible. Special thanks to Dr. Ljiljana Biukovic, who graciously agreed to be m y second reader and provided me with valuable comments. I am very grateful for her academic guidance and appreciate her kindness. I would like to express m y gratitude to Professor Paul T . K . L i n C M . , the former U B C Senator, as well as to his wife, M r s . Eileen L i n , for the constantly spiritual and academic support they have been rendering to me since I came to Vancouver in 2001. I am deeply indebted to Dr. Kaiyuan Tao, the Associate C h i e f Justice o f Guangdong Province o f China and one o f China's leading scholars i n W T O research, for her valuable academic guidance and spiritual support during m y study at the L L . M . Program. I am certain that her academic guidance as well as her spiritual support w i l l accompany me for a life time. I owe great thanks to one o f my oldest friend and elementary schoolmate, Chenye Wang, who has constantly rendered assistance. He and his family reflect the essence o f true friendship. Finally, I would like to express m y gratitude and appreciation to m y family. I owe an immense debt o f gratitude to m y father, my mother, and m y sister. I am deeply indebted to m y Granduncle, Dr. L u Ping, who was China's top official in charge o f H o n g K o n g and Macao affairs from 1990 to 1997, and retired after H o n g K o n g ' s return to China. I also want to express m y sincere appreciations to m y Grandaunt, Professor L u Jie, Dean Emeritus o f Nanjing Normal University Faculty o f Education. I can not thank enough for the love and fondness my granduncle and grandaunt have been giving me during the course o f my growth. In addition, their determination, enthusiasm, and contributions to the country o f China as well as to the international community have been truly inspirational. M y sincere thanks to all o f you.  I. Introduction  International Economic Interdependence is now commonly recognized as a growing phenomenon. Economic events nowadays always have impacts, which occur very swiftly and profoundly, on neighboring nations, as well as on those on the other side of the global.  1  In the context o f economic regulation, the norms of Transparency and Rule o f Law are all becoming the core principles of globalized norms of economic regulation, which are associated with General Agreement on Tariffs and Trade ( G A T T ) and the W o r l d Trade Organization ( W T O ) . In addition, the national treatment norms concerning international economic matters should also be considered as globalized norms, which are included in the G A T T and W T O .  3  Following China's accession to the W T O , it is becoming increasingly important for China to make its laws and regulations conform to W T O requirements, especially in 4  See John H. Jackson, The Jurisprudence of GATT and the WTO: Insights on Treaty law and Economic Relations (Cambridge, U.K.: University of Cambridge Press,2000), 99. See generally The Asian Financial Crisis and the architecture of Global Finance (G. W. Noble & J. Ravenhill eds., 2000); Towards Recovery on Pacific Asia (George Segal & David S.G. Goodman eds., 2000). For discussion of the applicability of liberal models of financial regulation to developing economies, see Stephan Haggard & Chung H . Lee, Financial Systems and Economic Policy in Developing Countries (1995) and The Politics of Finance in Developing Countries (Stephen Haggard et al. eds., 1993). See also Pitman B. Potter, "Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms and Practices" Washington University Global Studies Law Review 2(2003) 121. See Jackson, supra note 1 at 57. See Donald C. Clarke, "China's Legal System and the WTO: Prospects for Compliance", Washington University Global Studies Law Review 2 (2003) p.97. 1  2  3 4  1  terms o f the conformity o f China's regulatory system of economic regulations with W T O ' s principles o f national treatment, transparency, and rule o f law.  A . W T O ' s Requirement of National Treatment  A s the embodiment of W T O ' s principle o f national treatment, the Article III o f the G A T T prescribes that,  "The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use." 5  Similarly, the Article X V I I o f the "General Agreement on Trade in Services" ( G A T S ) also prescribes that,  ".. .each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers" 6  In addition, W T O ' s Agreement on Trade-Related Investment Measures (TRIMs) also has similar provisions governing the national treatment requirement.  A s embodied both in G A T T and later in the W T O , the principle o f national treatment in international trade has been significant to the world trading system since W o r l d W a r II,  For text see World Trade Organization ed., The legal Texts: The results of the Uruguay Round of Multilateral Trade Negotiations, 424 (Cambridge University Press, 1999).  2  because it is based upon policies that are both economic and political in nature, and which appear to remain valid for today and the future.  7  I will examine in this paper the conformity o f China's legal system with W T O ' s national treatment requirement.  B. WTO's Principle of Transparency  W T O ' s principle o f transparency includes a broad range o f contents. In this paper, I w i l l focus on two aspects, one is the access to information, and the other is judicial review.  W T O ' s transparency requirement in access to information can be seen in a number o f its documents and multilateral agreement, namely The G A T T Articles X , XIII, X V I , X I X ; G A T S Article III, and TRIPs Article 63.  W T O ' s transparency requirement injudicial review can also be found in a number o f its documents and multilateral agreement, including The G A T T Articles X , G A T S Article V I , and TRIPs Articles 41-50, and 59.  For example, the G A T T Article X prescribes the requirement in access to information as follows,  For text see World Trade Organization ed., The legal Texts: The results of the Uruguay Round of Multilateral Trade Negotiations, (Cambridge University Press, 1999). See Jackson, supra note 1 at 68. 6  7  3  Laws, regulations, judicial decisions and administrative rulings of general application, made effective by any contracting party... shall be published promptly in such a manner as to enable governments and traders to become acquainted with them. Agreements affecting international trade policy which are in force between the government or a governmental agency of any contracting party and the government or governmental agency of any other contracting party shall also be published.  A t the same time, this article prescribes the requirement in judicial review as follows,  Each contracting party shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters.  Whereas the W T O rules has detailed description to the transparency requirements regarding the access to information and judicial review, a key element in China's accession to the W T O relates to the transparency of laws, regulations and other rules related to trade and investment.  Transparency issues always refer to two perspectives: accountability and participation. Accountability means that public officials are accountable for the government's behavior and are responsible to the entity from which they derive their authority. Accountability issues tend to undermine the government's credibility, which can affect its capacity to sustain economic and social development.  8  Participation always refers to issues in terms of when and how to publicize particular activities, policies, or practices and what to make public.  9  See generally Asian Development Bank: Development Management: Progress and Challenges in the People's Republic of China (Manila, Philippines: Asian Development Bank, 2003), p.68 & 69. Ibid. 9  4  In this context, judicial review as well as administrative law regime always reflects embodiments of accountability, while access to information is always the embodiment of the participation requirement.  The core of the definition of transparency is central to the nature and enforcement of a country's administrative law regime. A s Dr. Sylvia Ostry noted, administrative L a w establishes norms to control what government bureaucrats do and how they do it. It arose essentially because of the delegation of power from legislators to administrative bodies propelled by the expanded role of government. Under the Uruguay Round, a trading system has been created with the key feature of a vastly expanded concept of Transparency, which includes, as a central feature, the administrative law regime of any W T O member country.  10  A s a significant part of the administrative law regime, notions of judicial review of administrative action reflect increased attention to accountability. A s Dr. Pitman Potter noted, "... (Judicial review) suggests efforts by the government to control lower level administrators. Despite possible conflicts of purpose, administrative law reform offers an important glimpse into the Chinese government's efforts to manage the process of reform." 1  I will discuss in this paper with a focus on the consistency of China's administrative law system with W T O ' s transparency requirements.  See Sylvia Ostry, "China and the WTO: The Transparency Issue", U C L A Journal of International Law and Foreign Affairs 1 (1998) p.2,4,9,18. See Potter, supra note 2, at 126. 11  5  C. Rule of L a w and Judicial Independence in China  Judicial review is a useful protective mechanism to ensure administrative decisions comply with W T O rules. Therefore, a sound judicial system is central to a member country's implementation o f its commitment to the W T O . A s what we can find from the G A T T articles cited above, judicial review to be used as a protective mechanism is based on an independent tribunal, therefore, when we try to address issues in the consistency o f a member country's domestic legal system with W T O rules, the judicial independence o f the nation, which is a key feature o f the rule o f law, is worthy of discussing, and even have a more detailed analysis. Because o f the importance o f the judicial independence to the implementation o f China's W T O commitment, a judicial reform is becoming more and more critical for China to carry out with a purpose o f building an impartial and independent judiciary.  The G A T T and the W T O make no attempt to define its rule o f law principle. Therefore, for here, there is no need to define it either. However, the importance o f the judicial independence and the rule o f law may still be worthy of being addressed.  Rule o f law is the cornerstone o f every modern society, and it requires that disputes about the application o f the law be settled as impartially as possible. Since the end o f the W o r l d War II, the importance o f the judiciary relative to the other branches o f the state has increased, and people increasingly turn to the judiciary, hoping it can solve pressing  6  social problems. 12 Courts and judges thus play a large and valuable role in the operation to the rule of law, and the key of the judicial role is judicial independence.  Judicial independence is one of the mechanisms developed in rule-of-law countries to promote judicial impartiality. 13 That judge and the judiciary enjoy independence is the essential precondition to the protection of the constitution within the framework of a democracy. 14 This is because that judicial independence is the foundation of impartiality, through which justice and the rule of law are possible.  Generally, the purpose of the courts is to serve the public by resolving disputes. Four factors that enable judges to best fulfill their role are judicial independence, the practice o f conscious objectivity, grasp of fundamental values, and appropriate restraint balanced with appropriate legal development. A m o n g them, judicial independence is the first and most essential factor. 15  Judicial independence is the fundamental constitutional principle in China. In the late 1970s and early 1980s, China underwent dramatic changes injudicial institutions due to its embracing economic reform. Economic reform calls for the establishment of the rule of law. A s what has been pointed out through the decision made by Central Committee of the Chinese Communist Party,  Aharon Barak, " A Judge on Judging: The Role of a Supreme Court in a Democracy." Harvard Law Review 116(2002): 22. See Ian Greene, Carl Baar & Peter McCormick. "Law, Courts and Democracy in Canada" International Social Science Journal 49 (1997): 228. See Barak, supra note 12, at 55. See Beverley McLachlin, "The Supreme Court and the Public Interest" Saskatchewan Law Review 64(2001): 315. 12  13  14 15  7  "The economic reform and the national economic development, requires more and more economic relations, more and more principles and rules for and economic activities be presented in legal forms. The State legislature must take faster pace for economic legislation, the courts must reinforce the judgment on economic cases, the procurators must strengthen their duty to prosecute economic crimes, and the judicial organs must provide legal service for the economic construction". 16  The Constitutional Law of 1982 stresses the judicial independence in the way that the people's courts shall, in accordance with the provisions of the law, exercise judicial power independently and are not subject to interference by any administrative organ, public organization or individual. 17  Generally, judicial independence refers to procedures that are intended to insulate the outcome of a particular decision or class of decisions from and influence outside legitimate courtroom activity. It simply means that no one may attempt to interfere with impartial adjudication, no interference from other judges, impartiality, and complete freedom to decide. However, as a matter of fact, judges in China have confronted more and more interference with judicial independence as the judiciary is becoming more and more important in social activities.  Judicial independence is not just a principle on paper, but also a dynamic practice based on a set of well-established institutions. The Right Honorable Beverley M c L a c h l i n argues  See Zhonggong zhongyang guanyu jingji tizhi gaige de jueding ("Decision of the Central Committee of the Communist Party of China on the Reform in Economic System"), passed by the Third Plenum of the 12 CPC Central Committee in December 20, 1984, Available at: <http://www.people.com.cn/GB/shizheng/252/5089/5104/20010429/467457.html>. (last accessed: September 20, 2003). See Zhonghua Renmin Gongheguo Xianfa ("Constitution of the People's Republic of China") Art. 13, available at: <www.people.com.cn/item/faguiku/xf.html>, (last accessed: September 20, 2003). 16  th  17  8  that judicial independence is not only a state o f affairs, but also a practice; and although judicial independence is accepted and respected in Canada, to maintain it by practicing it and protecting it is still necessary, is To protect and facilitate judicial independence, institutionalizing the judiciary is necessary. In Canada, judicial independence is based on three essential conditions of institutional assurance: security o f judicial tenure, financial security forjudges, and the institutional independence o f tribunals on all matters directly affecting adjudication. 19  W i t h regard to China, judicial independence is not a practice that has been long or w e l l established in China's judiciary system. Only in 1995 did China enact the Judges L a w to enhance the quality o f judges and ensure the independence of the courts exercising judicial authority according to law by laying out some general principles to institutionalize the judiciary.20 In 2001, China revised the Judges L a w by setting up relatively detailed criteria of appointment for judges,2i and also establishing a national uniform judicial examination mechanism, all o f which are among the efforts o f professionalizing the judiciary. 22 However, due to the restriction o f the political system, the Chinese judicial system may need to be more advanced towards the judicial independence and rule o f law.  Beverley McLachlin, "The Supreme Court and the Public Interest" Saskatchewan Law Review 64 (2001): 315-6. These three essential conditions were set up in a 1985 decision (Valente) of the Supreme Court of Canada. See Greene, Baar & McCormick, supra note 13, at 228. See Zhonghua Renmin Gongheguo Faguan Fa ("The Judges Law of the People's Republic of China"), art. 1, available at: <www.legaldaily.com.cn/gb/content/ 2001-07/05/content_20335.htm>, (last accessed: September 20, 2003). "Judges Law of PRC", supra note 20, art. 12. See China Internet Information Center: "Establishment and Enforcement of the National Uniform Judicial Examination", available at: <http://www.china.org.cn/e-news/news02-02-7.htm>. (last accessed: September 20, 2003). 19  20  2 1 22  9  r  II. Legal Framework of China's Economic Regulation Associated with WTO's Principles  Following China's accession to the W T O , rules on foreign investment have gradually been liberalized. The Chinese government has embarked on this strategy for its own sake, because the W T O membership w i l l not only open more markets to Chinese products, but also give the country extra leverage to force through difficult changes in the domestic economic system. Therefore, China's accession to the W T O is part o f a larger strategy o f massive and fundamental economic reform.  23  According to the report o f the Ministry o f Foreign Trade and Economic Cooperation ( M O F T E C ) , by the end o f 2000, China has achieved the review o f over 1400 laws, regulations, and similar documents, including six statutes (of which five were revised), 164 State Council regulations (of which 114 were to be repealed and 25 amended), 887 o f its own ministry regulations (of which 459 were to be repealed and 95 amended), 191 bilateral trade agreements, 72 bilateral investment treaties, and 93 tax treaties. In the first two months o f 2001, the various ministries and commissions o f the State Council reportedly reviewed some 2300 laws and regulations, o f which 830 were identified as in need o f repeal and 325 as in need o f revision.  24  See Clarke, supra note 4 at 97. See Nan Xianghong, "WTO: Fa de Chongxin Goujia" [WTO: The Restructuring of Law], N A N F A N G ZHOUMO [SOUTHERN WEEKEND], Internet edition, Oct. 25, 2001; see also Clarke, supra note 4 at 104. 24  10  A l l of these works are among the efforts that the Chinese government had made to ensure that the legal system be in accordance with W T O ' s legal regime.  A . China's Regulatory Framework Associated with the Principle of National Treatment—Foreign Investment Laws  A s I mentioned, the G A T T Article III, G A T S Article X V I I , and the T R I M s as well, are the embodiment of W T O ' s requirement in national treatment, especially the T R I M s , which provide a detailed illustrative list to prohibit the barriers like local content, export performance requirements, and quantitative restriction.  Since late 1978, following the open-door policy pursued by the Chinese Communist Party, the National People's Congress and the State Council have promulgated and issued a series of laws and regulations concerning the establishment, operation, termination and liquidation of foreign-invested enterprises. The main laws and regulations include the three basic laws  "The Law of the People's Republic of China on Chinese-Foreign  Equity Joint Ventures", "The Law of the People's Republic of China on Chinese-Foreign Contractual Joint Ventures", and "The Law of the People's Republic of China on W h o l l y Foreign-Owned Enterprises"; detailed rules for the implementation of the three basic laws; "The Company Law of the People's Republic of C h i n a " ; "The Income Tax Law of the People's Republic of China for Enterprises with Foreign Investment and Foreign Enterprises"; as well as the "Catalogue Guiding Foreign Investment in Industry".  11  However, before China's accession, most of these domestic economic regulations governing foreign investment were not compatible with W T O ' s national treatment requirements. For example, the three basic foreign investment laws, which are "The Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures", "The Law of the People's Republic of China on Chinese-Foreign Contractual Joint Ventures" and "The Law of the People's Republic of China on W h o l l y Foreign-Owned Enterprises", had provisions that included quite a number of restrictions on local content, export performance requirements, and quantitative restriction, inconsistent with W T O rules.  In order to be in compliance with W T O rules, a great amount of work has been done by the country in identifying, revising or abolishing the existing laws and regulations inconsistent with its commitment to the W T O . For instance, O n October 31, 2000, the National People's Congress Standing Committee ( N P C S C ) approved the amendment of "The Law of the People's Republic of China on Chinese-Foreign Contractual Joint Ventures" and "The L a w of the People's Republic of China on W h o l l y Foreign-Owned Enterprises", and eliminated all the restrictions, including local content, export performance requirements, and quantitative restriction, which are prohibited by the T R I M s . O n March 14, 2001, "The L a w of the People's Republic of China on ChineseForeign Equity Joint Ventures" was also revised by the National People's Congress ( N P C ) according to W T O ' s National Treatment requirement.  12  B . China's Regulatory Framework Associated with the Principle of Transparency— Access to Information and Judicial Review  A s I noted before, a central feature of the principle of transparency is the administrative law regime of any W T O member country. A s the embodiment of the Principle of Transparency, G A T T Article X prescribes the rules for Publication and administration of laws, regulations, the mode of administration in tradable services, and also to investment regimes. A t the same time, independent tribunals and judicial review are also required. Moreover, the Agreement on Trade-Related-Intellectual Property (TRIPs) underlines the transparency issue; the word is used as a heading in article 63. The agreement establishes a separate council, the Council for TRIPs, to monitor compliance. Countries must provide notification of all regulations and administrative arrangements to the c o u n c i l .  25  In this context, now we w i l l look at the Chinese administrative law with a focus on the publication of the laws and regulation, and the judicial review.  1. Access to Information— Publication of the Laws and Administrative Regulations  a. W T O ' s Requirements in Access to Information  A s the embodiment of W T O ' s Transparency requirements on access to information, G A T T Article X , G A T S Article III, and TRIPs article 63 require the member country that all of its domestic laws, regulations, judicial decisions and administrative rulings of  13  general application, and international agreements, all of which pertaining the relevant matters as prescribed, shall be published promptly in such a manner as to enable governments and traders to become acquainted with them.26  b. Domestic Laws of China Regarding to Access to Information  Article 52 and 62 of the Legislation Law, which has been promulgated by the National People's Congress on March 15th, 2000 and which is before China's accession, prescribe that, after a law or administrative regulation is signed and promulgated, it shall be published in a timely fashion in the Bulletin of the Standing Committee of the National People's Congress (for laws) or in the State Council Bulletin (for administrative regulations) and in nationally-circulated newspapers. Article 70 of the Legislation Law prescribes that, after a local regulation or autonomous regulation or special rule is promulgated, it shall be published in a timely fashion in the Bulletin of the standing committee of the People's Congress of the region and the newspapers circulated within the jurisdiction. Article 77 o f the Legislation L a w prescribes that, after an administrative rule is signed and promulgated, it shall be published in a timely manner in the Bulletin of the State Council or o f the organ and nationally circulated newspapers. After a local rule is signed and promulgated, it shall be published in a timely manner in the bulletin o f the local people's government and newspapers circulated within the jurisdiction.  27  25  See generally Ostry, supra note 10 at p. 5,9,10,11. For text see World Trade Organization ed., The legal Texts: The results of the Uruguay Round of Multilateral Trade Negotiations, (Cambridge University Press, 1999) see also "General Agreement on Trade and Tariffs" (GATT) (1947), supra note 5, art. 10, and also World Trade Organization: General Agreement on Trade in Services" (GATS), supra note 6, art.3. See Zhonghua Renmin Gongheguo Lifa Fa (The Legislation Law of the People's Republic of China) (2000), arts. 52, 62, 70, & 77, available at: 2 6  27  14  2. Judicial Review—Administrative L a w  a. W T O ' s Transparency Requirements in Judicial Review  A s the embodiment o f W T O ' s Transparency requirements on Judicial Review, G A T T Article X requires that each member country shall maintain, or institute judicial, arbitral or administrative tribunals or procedures for the purpose of the prompt review and correction o f administrative action relating to customs matters, and such tribunals or procedures shall be independent.28  Moreover, in a similar fashion, the G A T S Article V I prescribes that each Member shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide for the prompt review o f administrative decisions affecting trade in services.29  Compared to the articles o f G A T T and G A T S , the TRIPs have provided much more detailed provisions to prescribe the requirement o f judicial review. Those provisions can be seen from Articles 41 through 50, and article 59 as well, which prescribe that, procedures concerning the enforcement of intellectual property rights shall be fair and  <http://www.cnlawservice.coiri/chinese/law&regulation/flcx/a003.htm>, (last accessed: September 20, 2003). 28  See World Trade Organization: "General Agreement on Trade and Tariffs" (GATT) (1947), supra note 5, art. 10. 29  See World Trade Organization: General Agreement on Trade in Services" (GATS), supra note 6, Art. 6. 15  equitable; parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in a Member's law concerning the importance of a case, of at least the legal aspects o f initial judicial decisions on the merits of a case; decisions on the merits of a case shall preferably be in writing and reasoned, and shall be made available at least to the parties to the proceeding without undue delay.  I w i l l give a detailed discussion in the next chapter together with analysis of the amendment of China's Patent Law and Trademark Law.  b. Provisions in the "Administrative Litigation L a w " ( A L L )  The "Administrative Litigation Law of the People's Republic of C h i n a " ( A L L ) formalized the authority of the People's Courts to review of administrative agency 30  decisions.  The Administrative Litigation Law gives the courts power to review the  lawfulness of administrative acts and permits challenges against individual officials abusing their power to elicit bribes. A s Dr. Pitman Potter noted, 31  "The basic tenet of the A L L supports judicial supervision over administrative action, as the courts are empowered to quash illegal administrative decisions and to revise administrative penalties which are obviously unfair. The A L L supports expanded judicial review through provisions on the scope of cases accepted, the types of parties that may bring suit or that may be compelled to appear as defendants, trial procedures and enforcement provisions, and provisions for tort damage remedies. See The Administrative Litigation Law of the PRC, 24 L. & G O V ' T 22 (1991) (English translation of Administrative Litigation Law) [hereinafter Administration Litigation Law]; Pitman B. Potter, Judicial Review and Bureaucratic Reform: The Administrative Litigation Law of the PRC, in Domestic Law Reforms in Post-Mao China 270 (Pitman B. Potter ed., 1994). See also J. Fa & S. Leng, Judicial Review ofAdministration in the People's Republic of China, 1 OCCASIONAL PAPERS/REPRINTS SERIES IN CONTEMPORARY ASIAN STUDIES (1992). See generally Ostry, supra note 10 at 17. 31  16  The broad scope of administrative conduct subject to review under the A L L is intended to curb bureaucratism and prevent abuses of power by administrative officials who impose their will without reference to or support from regulatory rules." 32  For instance, the Article 5 o f the "Administrative Litigation L a w " prescribes that, "In handling administrative cases, the people's courts shall examine the legality of specific administrative actions." However, on the other hand, the Article 12 o f the "Administrative Litigation L a w " , Prescribes that "the people's courts shall not accept suits brought by citizens, legal persons or other organizations against administrative rules and regulations, regulations, or decisions and orders with general binding force formulated and announced by administrative organs; or, specific administrative acts that shall, as provided for by law, be finally decided by an administrative organ."  33  c. Provisions in the Regulations on the Procedure for Enacting Administrative Laws and Regulations  Efforts to restrain bureaucratic power have extended to administrative rulemaking. This can be seen in the "Provisional Regulations on the Procedure for Enacting Administrative Laws and Regulations", which rein in the rulemaking powers o f the bureaucracy by establishing limits on the rulemaking authority o f administrative  See generally Potter, supra note 2, at 137. Zhonghua Renmin Gongheguo Xingzheng Susong Fa ("Administrative Litigation Law of the PRC"), art.5, available at: <http://www.com-law.net/fagui/susong/mingsul.htm>, (last accessed: September 20, 2003).  33  17  government agencies based on their relative rank in the bureaucratic hierarchy. Furthermore, on November 2001, this Provisional Regulation was replaced by the formal Regulations, which is so called "Regulations on the Procedure for Enacting Administrative Regulations".  35  For instance, the Article 17 of the "Regulations on the Procedure for Enacting Administrative Laws and Regulations" prescribes that; the legislative organ of the State Council shall be responsible for the review of the submitted drafts of administrative regulations to the State Council. The legislative organ of the State Council shall review the submitted drafts of administrative regulations mainly at the following aspects: Whether they accord with the provisions of the Constitution, laws, guidelines and policies of the state; Whether they harmonize and link up with relevant administrative regulations; Whether they properly deal with the opinions on the major issues of the submitted drafts from relevant agencies, organizations and citizens.  36  d. Provisions in the Administrative Supervision L a w ( A S L )  According to the "Administrative Supervision L a w " ( A S L ) which was promulgated on 1997, superior level agencies are authorized by the law to require subordinate units to amend or annul their regulations where inconsistent with superior laws and regulations.  See Xingzheng Fagui Zhiding Chengxu Zanxing Tiaoli ["Provisional Regulations on the Procedures for Enacting Administrative Laws and Regulations"] (1987), available at: <www.sdinfo.net.cn/hiinfo/law/database/envlaw/h008.htm >, (last accessed: September 20, 2003), See also Potter, supra note 2, at 140. See Xingzheng Fagui Zhiding Chengxu Tiaoli ["Regulations on the Procedures for Enacting Administrative Regulations"] (2001) Available at: <http://www.chinaiprlaw.com/flfg/flfg103.htm>, (last accessed: September 20, 2003). 34  35  18  However, this supervision power was only confined to the authority o f superior level 37  governments,  and such supervision power is not authorized to the judicial organs by the  law.  For instance, the Article 17 of the A S L prescribes that a supervisory organ at a higher level may handle matters o f supervision that are under the supervision o f a supervisory organ at a lower level and may, when necessary, handle such matters that are under the jurisdiction o f the supervisory organs at the various lower levels.  38  In addition, the A S L prescribes that, a supervisory organ shall perform the duties i n order to fulfill its function o f supervision including: (1) to inspect the problems of the administrative organs o f the State that occur in the course o f their observing and enforcing laws and rules and regulations as well as government decisions and decrees; (2) to accept and handle accusations and expositions against administrative organs or public servants o f the State or other persons appointed by such organs that violate rules o f administrative discipline; (3) to investigate and handle violations o f rules o f administrative discipline committed by administrative organs or public servants o f the State or other persons appointed by such organs.  39  Ibid, art. 17. See Zhonghua Renmin Gonghe Guo Xingzheng Jiancha Fa [Administrative Supervision Law of the People's Republic of China] (May 9, 1997), available at: <www.people.coni.cn/item/faguiku/xzhf/F1010.html>, (last accessed: September 20, 2003), see also Potter, supra note 2, at 140 M  3 7  38 3 9  "Administrative Supervision Law of the People's Republic of China", supra note 38, art.17. "Administrative Supervision Law of the People's Republic of China", supra note 38, art. 18. 19  A s Dr. Pitman Potter noted, the administrative law system in China is intended primarily to ensure that subordinate institutions comply with directives from their superiors. Moreover, this also reflects China's policies aimed at restraining bureaucratic behavior through the vehicle of judicial review and external supervision. I will provide detailed 40  analysis in the next chapter on the above mentioned provisions which reflects the dominancy of the administrative power.  C. China's Regulatory System Associated with the Principle of Rule of Law— Judicial Independence  According to G A T T Article X , G A T S Article V I , and TRIPs Article 41, all of these provisions emphasize the importance of an independent judicial tribunal.  While the qualification of a judge is critical to the capacity of Chinese courts to handle with cases, the procedure for appointment as a judge is the key feature of the judicial independence and accountability. A s Donald Clarke noted, "The key issues in court reform, from the standpoint of China's fellow WTO members, are the qualifications of judges, the willingness and capacity of courts to render fair judgments free of corruption and pressure from local government, and the ability of courts to execute those judgments once rendered." 41  Therefore, I w i l l focus on the qualification as well as the appointment procedures of judges to examining the judicial independence issue as well as the issue of the capacity of China's courts to handle with international investment and trade cases.  40 41  See generally Potter, supra note 2, at 141, 142. See Clarke, supra note 4 at 108.  20  1. Provisions on the Qualification for Appointment as a Judge  While the eligibility for appointment as a federal or provincial judge in Canada focuses on candidate's legal training, practice, and experience, however, such qualification requirement in China is a slightly different story. Qualifications in China include that of nationality, age, political attitude, quality of profession, good conduct, good health together with educational background and legal work experience. The key requirement is legal background.  In addition to other requirements, China enhanced the legal threshold for judicial eligibility. In China, a judge must "have engaged in the legal work for at least two years in the case of graduates of law major of colleges or universities or from non-law majors of colleges or universities but possessing the professional knowledge of law, and among whom those to assume the posts of judges of superior People's Courts and o f the Supreme People's Court shall have engaged in the legal work for at least three years; or to have engaged in the legal work for at least one year in the case of those who have Master's Degree o f L a w or Doctor's Degree of Law, or those who have Master's Degree or Doctor's Degree of non-law majors but possess the professional knowledge of law, and among whom those to assume the posts of judges of superior People's Courts and o f the Supreme People's Court shall have engaged in the legal work for at least two years."  42  This enhanced threshold of judicial qualification came into force after the amendment to the Judges L a w in 2001.  The Judges L a w of 1995 just requires that a judge should "have worked for at least two years in the case of graduates from law specialties of colleges or universities or from nonlaw specialties of colleges or universities but possessing the professional knowledge of law; or to have worked for at least one year in the case of Bachelors of L a w ; those who have Master's Degree of Law or Doctor's Degree of L a w may be not subject to the abovementioned requirements for the number of years set for work."  43  Compared with the Judge Law of 1995, the 2001 amendment makes some important improvements on eligibility requirements, mainly as follows:  Firstly, the amendment raises the requirement of the education background. A l l the applicants should at least possess a bachelor's degree. However, the qualifications for becoming a judge is also open to those have possess a degree of non-law majors. In the meanwhile, the amendment has an exception for those who do not possess the qualifications prior to the implementation o f this law and to places where it is really difficult to obtain academic qualification.  44  In these exceptional cases, judicial personnel  who did not satisfy the qualifications prior to the implementation of the Judges L a w should receive training to achieve the qualifications, and for the places that can not acquire the academic qualification of a bachelor degree (most of them are remote countryside and underdeveloped areas), the academic qualification for the judges may be  ^ "Judges Law of PRC", supra note 20, art.9. Ibid. Under the first circumstance, these persons are required to receive a special training which ensures their quality is equivalent to the qualification after the training; under the second circumstance, the academic qualification forjudges may be eased for a specific period as two-year graduates of law major of colleges and universities subject to the examination and determination by the Supreme People's Court. 4 3  4 4  22  eased for a specific period for two-year graduates of law major of colleges and universities. Most important of all, these exceptions to judicial qualification are subject to the control of the Supreme Court. A n d the Supreme Court's involvement in judicial institutions w i l l certainly facilitate judicial independence.  Secondly, the amendment emphasizes the " l e g a l " work experience o f the applicants instead of general work experience in the 1995's Judges Law. Finally, the amendment extends the period of legal work experience to two years, with some leeway for extra or reduced requirements.  2.  Provisions on the Appointment of Judges  Pursuant to Article 11 of the Judges L a w of China, A judge shall be appointed in accordance with the limit of authority for, and procedures of, appointment as prescribed by the Constitution and laws. The details are as follows:  a. The Election and Appointment of Judges of the Supreme Court  The President of the Supreme People's Court shall be elected by the National People's 45  Congress. The vice-presidents , members of the judicial committee, 46  47  48  chief judges and  This position is equivalent to the Chief Justice of the Supreme Court of Canada. "Constitution of the PRC", supra note 17, art. 62(7). These positions are equivalent to the puisne justices of the Supreme Court of Canada. The judicial committee at all levels of the courts is a special organization with the task of summing up judicial experience and discussing important or difficult cases and other issues relating to the judicial work. The presidents of the courts preside over meetings of judicial committees of the courts at all levels. There'is no legal requirement on the composition of the Committee, the general practice 4 5  4 6  4 7  4 8  23  associate chief judges o f divisions and judges of the Supreme People's Court shall be appointed by the Standing Committee o f the National People's Congress upon the recommendation o f the President o f the Supreme People's Court.  4 9  b. The Election and Appointment o f Judges of the Judges o f the Local Courts  The presidents o f the local People's Courts at various levels shall be elected by the local 50  51  People's Congresses at various levels.  52  The vice-presidents , members o f the judicial  committees, chief judges and associate chief judges of divisions and judges o f the local People's Courts at various levels shall be appointed by the standing committees o f the people's congresses at the corresponding levels upon the recommendation o f the presidents o f those courts.  53  of the composition of the committee is: all the vice presidents, chief judges and associate chief judges of divisions and some senior and experienced judges. See "Zhonghua Renmin Gongheguo Renmin Fayuan Zuzhi Fa" (the Organic Law of the People's Courts of the People's Republic of China) (1983), art. 11, available at: <http://www.iingmen.gov.cn/flfg/tiaowen/nnfyzz.htm>, (last accessed: September 20, 2003). "Constitution of the PRC", supra note 17, art. 67(11). The presidents here include Chief Justices of the High Courts, Chief Judges of the Mediate Courts and Grassroots Courts. "Constitution of the PRC", supra note 17, art. 101(2), and see also Zhonghua Renmin Gongheguo Difang Geji Renmin Daibiao Dahui he Difang Geji Renmin Zhengfu Zuzhi Fa ("Organic Law of the Local People's Congresses and Local People's Governments of the People's Republic of China") (1995), art. 8(6), available at: <http://www.spcsc.sh.cn/xjzl/zuzhifa.html>, (last accessed: September 20, 2003). 4 9  5 0  51  52  The vice presidents here include Associate Chief Justices of the High Courts, associate Chief Judges of the Mediate Courts and Grassroots Courts.  24  c. The Appointment of Judges o f Some Special Intermediate Courts  The appointment o f the presidents  54  o f the intermediate People's Courts set up in  prefectures o f the provinces or autonomous regions or set up in the municipalities directly under the Central Government shall be decided on by the standing committees o f the people's congresses o f the provinces, autonomous regions or municipalities directly under the Central Government on the basis o f the nominations made by the respective councils of chairmen. The vice- presidents, members o f the judicial committees, chief judges 55  56  and associate chief judges of divisions and judges shall be appointed by the standing committees of the people's congresses o f the provinces, autonomous regions or municipalities directly under the Central Government upon the recommendations o f the presidents o f the higher People's Courts.  Generally speaking, in terms o f being qualified to be a judge, the requirements o f the legal education background set by the Judge's L a w is still quite loose and leaves a lot o f room for people who never have legal education to be judges, and also the length o f time of legal working experience is not enough to ensure a qualified legal professional. This illustrates the interim characteristics o f Chinese legal reform.  ' "Organic Law of the Local People's Congresses and Local People's Governments of the People's Republic of China", supra note 52, art. 44 (11). This position is equivalent to the Chief Judge of the Provincial Court of Canada. "Organic Law of the Local People's Congresses and Local People's Governments of the People's Republic of China", supra note 52, art. 25. These positions are equivalent to the Associate Chief Judge of the provincial court of Canada. 5 4 5 5  5 6  25  III. Performance Record and Functional Issues on the Conformity of China's Regulatory System with W T O ' s Principles  A . Examining the Compliance of China's Legal System with Its W T O Obligation from the National Treatment Perspective: "Super National Treatment" and Foreign Investment Guidelines  1. "Super National Treatment"—China's Preferential Policies for Foreign Investment with its W T O Obligation  In order to attract foreign investments, in the early 1980's, China established several Special Economic Zones that offered various kinds o f preferential treatment to foreign companies. The Chinese government made preferential policies and regulations for foreign investment mainly by means o f the lower taxation rates on enterprises with foreign investment, and preferential tax policies are offered to the sectors and regions where investment is encouraged by the state.  According to the "Income Tax Law o f the People's Republic o f China for Enterprises with Foreign Investment and Foreign Enterprises", which has been implemented on J u l y l , 1991, the income tax on enterprises with foreign investment established in Special Economic Zones, foreign enterprises which have establishments or places i n Special Economic Zones engaged in production or business operations, and on enterprises with  26  foreign investment o f a production nature in Economic and Technological Development Zones, shall be levied at the reduced rate o f 1 5 % .  57  The income tax on enterprises with foreign investment o f a production nature established in coastal economic open zones or in the old urban districts o f cities where the Special Economic Zones or the Economic and Technological Development Zones are located, shall be levied at the reduced rate o f 24%. The income tax on enterprises with foreign investment in coastal economic open zones, in the old urban districts o f cities where the Special Economic Zones or the Economic and Technological Development Zones are located or in other regions defined b y the State Council, within the scope o f energy, communications, or other projects encouraged by the State, may be levied at the reduced rate o f 15%. However, at the same time, the tax rate for domestic enterprises is 33%.  According to the "Schedule o f Specific Commitments on Services resulting from the negotiations between the People's Republic o f China and W T O Members", which is annexed to the Protocol o f Accession o f China, it prescribes that, "In China, foreign invested enterprises include foreign capital enterprises (also referred to as wholly foreign-owned enterprises) and joint venture enterprises. There are two types of joint venture enterprises: equity joint ventures and contractual joint ventures. The proportion of foreign investment in an equity joint venture shall be no less than 25 per cent of the registered capital of the joint venture."59  See Zhong hua Renmin Gongheguo Waishang Touzi Qiye he Wai Guo Qiye Suode Shui Fa ("The Income Tax Law of the People's Republic of China for Enterprises with Foreign Investment and Foreign Enterprises"), available at: <www.china.org.cn/chinese/zhuanti/241023.htm >, (last accessed: September 20, 2003). see also generally the introduction of the statute in English version at <http://www.chinagate.com.cn/english/index.htm>, (last accessed: September 20, 2003). See generally "The Income Tax Law of the People's Republic of China for Enterprises with Foreign Investment and Foreign Enterprises", supra note 58. 58  27  A s I noted, generally, in China, foreign invested enterprises (FIEs) are enjoying a lot of benefits, such as taxation, foreign exchange control, export and import, etc. The laws governing FIEs are quite different from those governing normal companies. In the Jointventure law, it is stipulated that only those enterprises with more than 2 5 % foreign investment can be recognized as a F I E .  However, according to the newly promulgated "Notice of China Securities Regulatory Commission, Ministry of Finance and State Economic and Trade Commission on Issues Relating to Transfer of State-Owned Shares and Legal Person Shares to Foreign Investors", which prescribes that "after the transfer of state-owned shares and legal person shares of listed companies to foreign investors, the companies shall still follow the original policies without treatment as foreign invested companies". From my view, the purpose o f the regulatory regime to make such legislation is to protect other listed SOEs, which are not purchased by foreign investment. This is because that the issue of the insolvency of state owned enterprises is becoming increasingly serious and critical. Whereas most of the FIEs in China are profitable, however, on the other hand, there are more and more S O E s facing the insolvency problem. The insolvency issue of the S O E s comes with the issue of the laid off workers, and it thus becomes a huge and critical unemployment problem. For that reason, the Chinese government has to adopt several policies to protect SOEs from insolvency. However, this article seems unfair for the SOEs purchased by the foreign investment, since compared to FIEs, they could not enjoy  World Trade Organization: "Report of the working party on the accession of CHINA", Addendum: Schedule CLII-The PRC Part II, available at: <http://www.moftec.gov.cn/table/wto/04.doc>, (last accessed: September 20, 2003).  28  a lot privileges assigned only for FIEs, especially in taxation and foreign exchange control.  A t the same time, some companies in China have less than 2 5 % of foreign investment. To name a few, for example, Bank of Shanghai, N e w China L i f e Insurance, Ping An Insurance, etc. For those companies, although they are financial institutions and are thus regulated by several special rules like "Regulations on Administration of Foreign-funded Financial Institutions" at the same time, however, they are still applied to the three basic foreign investment enterprises laws which prescribe the forms of their establishment, and the taxation. Furthermore, the "Regulations on Administration of Foreign-funded Financial Institutions" is a kind of administrative Regulations which are made by the Sate Council to prescribe the matters which are not prescribed by the laws, whereas the three basic laws are fundamental and promulgated by the National People's Congress. Therefore, it is still a question for those foreign financial institutions and other such FIEs that whether or not they shall be applied to FIE laws or normal laws? A r e they entitled with beneficial treatments for FIEs? Are they subject to M O F T E C ' s control? So far the treatment to those companies is vague, and this w i l l remain a legal issue for the foreign investment that only purchase less than 2 5 % stakes in a S O E or other Chinese companies.  Taxation is the most important beneficial treatment and privileges for FIEs. A s I mentioned before, for some Chinese companies part of their stakes have been purchased by foreign investment through mergers and acquisitions. Ping A n Insurance Company, for instance, is a share-holding insurance company based in Shenzhen, one of the Special  29  Economic Zones. Morgan Stanley and Goldman Sachs have purchased some stakes o f the company via mergers and Acquisitions. But the total percentage of foreign investment is less than 25%, and this company is still considered as a foreign investment company, since it is based in a Special Economic Zone. Therefore, this company enjoys the income tax rate of 15%. However, not all enterprises like P I N G A N Insurance, of which foreign investments hold less than 2 5 % of stakes, can be categorized as a foreign investment company. For another example, in 1999, the Hong K o n g and Shanghai Banking Group ( H S B C ) has purchased 10% stakes in the Bank of Shanghai, yet the Bank of Shanghai can not enjoy any privileges as a FIE.  In the Article 3 of W T O ' s "Protocol on the Accession of the People's Republic of China", it prescribes the Non-discrimination rules for China as follows:  "Except as otherwise provided for in this Protocol, foreign individuals and enterprises and foreign-funded enterprises shall be accorded treatment no less favorable than that accorded to other individuals and enterprises in respect of: (a) the procurement of inputs and goods and services necessary for production and the conditions under which their goods are produced, marketed or sold, in the domestic market and for export; and (b) the prices and availability of goods and services supplied by national and sub-national authorities and public or state enterprises, in areas including transportation, energy, basic telecommunications, other utilities and factors of production."60  What we may conclude from the above provision is that, the Preferential Policies made by China to attract the foreign investment are not inconsistent with W T O ' s National Treatment obligations. A s what we can find from G A T T Article III, G A T S Article X V I I , and TRIPs Article 3, which are the embodiment of the W T O ' s National  30  Treatment Principle, all of these W T O agreements use the term of "no less favorable than", which means W T O rules do not prohibit a member country to give foreign investors the treatment which is more than given to the domestic investors. However, it was said that the Chinese government was making a rule that can be implemented in future so that the taxation rates for domestic enterprises and FIEs w i l l be combined to the same rate. If so, both the foreign invested companies and domestic companies can be treated equally in terms of taxation.  2. Foreign Investment Guidelines—Catalogue Guiding Foreign Investment in Industry  To direct foreign investment to go along with the development scenario o f Chinese industries, and to avoid blind investment, the Chinese government promulgated in June 1995 the Interim Catalogue Guiding Foreign Investment in Industry. The industrial projects in the catalogue are divided into four categories  the encouraged, permitted,  restricted, and prohibited. In late 1997, the Chinese government revised the abovementioned catalogue in line with the development of the national economy. The revised catalogue reflects expansion in the investment scope encouraged by the state and highlights priority industries. It embodies the principles of compliance with structural readjustment, of being conducive to the introduction of advanced technology, and encouragement of foreign investment in China's central and western areas.  World Trade Organization: "Protocol on the Accession of the People's Republic of China", (2001) Part I, Section 3, available at <http://www.moftec.gov.cn/table/wto/law02.doc>, (last accessed:  31  The items in the catalogue encouraged for foreign investment mainly include: new agriculture technologies, comprehensive development of agriculture, energy resources, communications, important raw materials, new and high technologies, export-oriented and foreign-currency-earning projects, comprehensive utilization and regeneration of resources, prevention of environmental pollution, and those that give play to the advantages of China's mid-west areas. Meanwhile, foreign investment is directed to the technological upgrading of traditional industries and old industrial bases, and to the continued development o f labor-intensive projects that comply with the state's industrial policies.  Foreign investment is prohibited in projects that endanger the state security and bring damages to public interest; that cause pollution o f the environment and damage natural resources and public health; that use large farmland and are unfavorable to the protection and development of land resources; and that endanger the security and normal function of military facilities.  61  In order to be compatible with China's W T O obligations, on A p r i l 1, 2002, the new Catalogue Guiding Foreign Investment in Industry with a four-tier classification system for foreign investment has been implemented. The new investment rules are set to replace the current regulations, which have been in place since 1995 that would not be compatible with China's W T O commitments.  September 20, 2003). See generally Waishang touzi chanye zhidao mulu ("Catalogue Guiding Foreign Investment in Industry"), available at <http://www.cnii.com.cn/20020808/ca93803.htm>, (last accessed: September 20, 2003). 61  32  This new system divides foreign investments into four categories: encouraged, permitted, restricted, and banned. Foreign-backed projects that fall into the category of encouraged investments w i l l enjoy the benefits o f more relaxed legal and administrative requirements. Foreign-invested projects already in China producing goods for export w i l l automatically be put into the encouraged investment category. M o r e than 300 industries are grouped by these categorizations, which guide approval authorities in deciding whether to authorize a new wholly foreign-owned enterprise or joint venture. The categorization may also confer benefits or impose restrictions. "Encouraged" projects, for example, may be approved by a local examination or an approval authority (Shen Pi Ji Gou). If needed, encouraged projects may be required to obtain approval by Ministry o f Foreign Trade and Economic Cooperation ( M O F T E C ) ; "Restricted" projects may have limits on the maximum percentage o f foreign ownership; and " B a n n e d " industries are barred to foreign investment altogether.62  Some regulations, such as the Foreign-Invested Enterprise Investment Provisions (FIE Investment Provisions) and the Regulations on the Merger and Division o f ForeignInvested Enterprises ( M & D Regulations) ensure that the guidelines cannot be circumvented through a merger or acquisition. If foreign investment is limited in a particular sector, the total equity held, directly or indirectly by foreign investors may not exceed that limit as a result o f a merger under the M & D Regulations. A l o n g the same  See Patrick M Norton & Howard Chao: "Mergers and Acquisitions in China," O'Melveny & Myers Topics in Chinese Law, available at: <http://www.omm.com/webcode/webdata/content/publications/Topics 2001 02.pdf>, (last accessed: September 20,2003). 62  33  lines, the local examination and approval authority, rather than the local registration authority, must approve an investment in a "restricted" industry under the FIE Investment Provisions. Further, much more documentation w i l l be submitted with the approval application than investments in "encouraged" or "permitted" sectors. The investment guidelines (Catalogue) have been revised to reflect the trend in China to minimize direct State control of certain elements of the economy.  On June 12, 2002, the British "Financial T i m e s " reported that the French retailer had been forced by the Chinese government to reduce and sell at least 3 5 % stakes of its wholly owned hypermarkets to a Chinese company, although the retail business is in the catalogue of "encouraged", however, according to China's regulations, the maximum 63  percentage of foreign ownership in the retail hypermarket is 65%. The question here is that whether or not this action complies with China's commitment to the W T O .  6 4  To  answer this question, we may take a look at China's commitment to the W T O pertaining such matters.  According to the "Schedule of Specific Commitments on Services resulting from the negotiations between the People's Republic of China and W T O Members", which is annexed to the Protocol of Accession of China, in Article 4, "Distribution Services", Section C . "Retailing Services", Foreign Service suppliers may supply services only in  See "Catalogue Guiding Foreign Investment in Industry", supra note 62, art. 7, "wholesale, retail, and logistics for and distribution of, general merchandise" is in the "Catalogue of Industries in Which Foreign Investment is encouraged". See Huangrong, "Yingguo Meiti Baodao Zhongguo Leling Jialefu Chushou Liang Chaoshi Bufen Guquan" (British media reports that China orders Carreford to sale part of its stakes in two of its fully owned hypermarkets), Guoji Jinrong Bao, (International Financial Daily), July 13 , 2002. 63  64  th  34  the form o f joint ventures in several specified cities. Therefore, the act committed by the Chinese government does not break its commitment upon its acceptation to the W T O .  W h i l e wholesale and retail is in the catalogue o f "encouraged" and the stake limit for foreign investment is 65%, the motor vehicles manufacture seems like a quite different case. Whereas the motor vehicles manufacture seems have quite similar or maybe even worse policy restrictions in the "catalogue" than the retail service, however, the situation of some motor vehicles manufacture is de facto better than that o f retail service.  According to the "Catalogue", the motor vehicles manufacture is also in the catalogue o f "encouraged", but foreign investment ratio in the Manufacture o f assembled motor vehicles and motorcycles may not exceed 5 0 % .  65  However, on late 2002, Japan's second-largest automaker, Honda received approval from the Chinese government to set up the first Sino-foreign joint venture to make cars solely for export. Honda could own 65 percent o f the venture, marking the first time that China has allowed a foreign company to own a controlling stake in an auto-making tie-up.  66  A l l of the vehicles made by the joint venture w i l l be for export and mainly targeted at the European and Asian market. Analysts, like M r . Jia Xingguang, an expert with the China National Automotive Industry Research Institute, sees the project as a strong sign that the  See Waishang Touzi Chanye Zhidao Mulu Fujian, ("Annex to the Foreign Investment Industrial Guidance Catalogue") (2002), supra note 62, Part I, art. 5. See "Honda gets China approval for car export venture", Reuters, November 22th, 2002, available at: <http://wardsauto.com/ar/transportation honda gets china/>, (last accessed: September 20, 2003).  65  66  35  central government w i l l further relax its control on the equity structure o f Sino-foreign auto joint ventures. However, I would argue that the government is unlikely to allow other foreign automakers to control a stake o f more than 50 percent in their joint ventures in China, unless all of the vehicles produced are exported, as is the case with the Honda project. Moreover, it seems that the Chinese government w i l l continue to use the equity structure control to protect Chinese manufacturers following the nation's entry into the W o r l d Trade Organization and lowering o f tariffs on auto imports. It is clear that the government has given the green light to the Honda project, because its export-orientated cars w i l l not directly compete with those made in C h i n a .  67  The above case implies that China may loose its control or be more flexible with foreign investment restriction only i f all the products made by FIEs or J V s are exported. Otherwise it seems unlikely that it could loose its control. Similar provisions could also be found in the "Foreign Investment Industrial Guidance Catalogue", which prescribes that "Foreign-funded projects in Permitted Categories that directly export all o f their products" are in the Catalogue o f "Encouraged".  A s mentioned above, the "Encouraged" foreign invested projects could enjoy quite a lot of privileges, therefore, such "Foreign-funded projects in Permitted Categories that directly export all o f their products" enjoy these privileges due to its exportation.  See "Honda the First One to Dominates Auto JV", available at: <http://www.china.com.cn/english/BAT/49577.htm>, (last accessed: September 20, 2003).  36  The Article 2 of the Illustrative List of the Annex of the Agreement on Trade-related Investment Measures (TRIMs) reads:  "TRIMs that are inconsistent with the obligation of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which restrict: the exportation or sale for export by an enterprise of products, whether specified in terms of particular products, in terms of volume or value of products, or in tenris of a proportion of volume or value of its local production." 69  However, "Foreign-funded projects in Permitted Categories that directly export all of their products", according to the "Catalogue", are eligible to enjoy the privileges which should be enjoyed by the "encouraged" projects. This definitely means, they can "obtain an advantage" i f they export all of their products directly.  Concluded from above, it is still a question whether China's newly promulgated foreign investment guidelines are compliant with China's W T O obligation.  3. Monopoly Behavior of the S O E s with governmental functions  China's new investment catalogue is among the efforts by the Chinese government to comply with the norms that govern W T O . These new investment rules are set to replace the current regulations, which have been in place since 1995 that would not be compatible with China's W T O commitments of reducing trade and investment barriers.  See "Foreign Investment Industrial Guidance Catalogue", "Encouraged section", supra note 62, art. 13.  68  37  Although the new investment catalogue has been made to comply with China's commitment to the W T O , we may still find some inconsistencies, such as the preferential treatment enjoyed by the automobile company that exports all o f its products. This, from my point o f view, is not due to bad faith o f the government, and is not a huge problem for the Chinese government to improve. However, on the other hand, there is a much more serious issue must be addressed in terms o f National Treatment, which is the monopoly behavior o f a lot o f state owned enterprises (SOEs) with governmental functions in a broad range o f sectors.  Although foreign investors could enjoy quite a number o f preferential policies that do not apply to domestic enterprises, and are given a "super national treatment", some S O E s are still given a lot o f privileges unfair to other enterprises in the same sector. Such S O E s with monopoly privileges can be categorized into two kinds, one is the S O E s with government functions, and the other is the SOEs under the local protection.  First o f all, there are quite a number o f SOEs which have governmental functions. These companies are reformed from government agencies still w i h governmental functions. For example, the Electronics Products Company o f Shanghai is the former Electronics Products Bureau o f Shanghai. Such companies not only have a function o f enterprise, but also have an administrative function, including the relevant policy making, and even the enacting o f some "Normative Documents". The Presidents o f such companies are still government officials and thus then it could get a lot o f internal information from the  World Trade Organization: The Agreement on Trade-related Investment Measures (TRIMs), Annex, the Illustrative List, art.2 available at <http://www.wto.org/english/docs e/legal e/18-trims e.htm>, (last 6 9  38  government which are not to be released to the public. This can also be seen in some service sectors, such as postal and courier services and telecom.  Secondly, some local SOEs are still given some local protection. For example, the Cherry Automobile Company located in the City of Wuhu, the Chair o f the board of that company is the Secretary of the local C C P Committee, as a consequence, all the taxies in that city were made by that company, and taxis made by other manufacturers can not be registered in that city. O n the other hand, some local private entrepreneurs, who could make profit for the local government, were appointed as a member, or even an executive 70  member of the local party committee.  Obviously, such enterprises can without question  enjoy a lot of privileges which are not entitled to others.  The monopoly behaviors o f those SOEs are de facto becoming barriers and having infringement to foreign investments. Such behaviors, like SOEs have governmental and administrative function, were generated during the course of the transition of the planning economy to the market economy, and therefore, it can only be entirely resolved with institutional reform, which w i l l take quite a long time to carry out. For that reason, at this point, it may be necessary to find a "short-cut" to break such barriers. From my point of view, I think the Administrative Litigation Law ( A L L ) may offer remedy by granting the power to the people's courts to disable the governmental functions of such SOEs and invalidate any of the "Normative Documents" made by such SOEs. For that reason, in order to protect the national treatment to foreign investment and other private firms, the  accessed: September 20, 2003).  39  Administrative Litigation Law needs to be revised to enable the people's courts to review the case against the SOEs with governmental functions, and it thus brings out some other issues, including judicial review and judicial independence. I w i l l discuss in the following part the details on judicial review.  Lu Ning, Shuji shangrenyu shangren shuji (Secretary Businessman and Businessman Secretary), Zhongguo Qinnian Bao (China Youth Daily), June 1 9 , 2003.  40  •B. Examining the Compliance of China's Legal System with Its W T O Obligation from the Transparency Perspective: Access to Information and Judicial Review  1. Evolving Issues in Access to Information  a. W T O ' s Requirements o f Access to Information and China's Regulatory Reform to Meet with W T O ' s Requirements  According to G A T S Article III,  "Each Member shall respond promptly to all requests by any other Member for specific information on any of its measures of general application or international agreements.. .Each Member shall also establish one or more enquiry points to provide specific information to other Members, upon request, on all such matters as well as those subject to the notification requirement..." 71  Similarly, under the article 63 of TRIPs, "Each Member shall be prepared to supply, in response to a written request from another Member, information.. .A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements." 72  Similarly, such requirements can also be seen in G A T T Articles X , XIII, X V I , and X I X .  World Trade Organization: "General Agreement on Trade in Services" (GATS), supra note 6, art.3. World Trade Organization: "Agreement on Trade-Related Aspects of Intellectual Property Rights" (TRIPs), supra note 26, art.63. 7 2  41  a l . The Establishment of "Inquiry Point" by the Ministry of Commerce and the Gazette of the M O F T E C  In order to comply with China's commitment with W T O , in addition to the M O F T E C Gazette, following China's accession to the W T O , the Ministry of Foreign Trade and Economic Cooperation (and now the Ministry of Commerce) established the "Department of W T O Affairs" (Shi Jie Mao Yi Zu Zhi Si), which also serves as the " W T O Notification and Enquiry Center of the Chinese Government". This measure was taken to meet with China's W T O obligation in establishing "Inquiry Point".  This Inquiry point is open to the governments of the W T O member countries, foreign or domestic firms and individuals. Through its website,  73  inquirers could get access to all  the laws, administrative and local regulations and rules which are related to trade of goods, trade o f services, trade-related intellectual property, and foreign exchange control.  74  The inquirer could fill in the " C h i n a W T O Enquiry Application F o r m " , which 75  can be downloaded from the website,  and then submit the form to the Department of  W T O Affairs as well as the " W T O Notification and Enquiry Center of the Chinese Government" by fax or by mail. The Department/Center should reply the enquirer within 30 days after receipt of the Enquiry Application Form. Under some special circumstances, the Department/ Center may reply the enquirer within 45 days after receipt of the Enquiry Application Form, but they must explain to the Enquirer about the reason of such delay. 73 7 4 7 5 7 6  See See See See  76  http://www.chinawto. gov.cn/ http://www.chinawto.gov.cn/article/articleview/183/ http://www.chinawto.gov.en/article/articleview/216/ http://www.chinawto.gov.cn/article/articleview/183/  42  The reply from the Department / Center should specify the laws, regulations and rules, which are related to the issue that inquired by the enquirer, and should specify the name of the central or local government agencies which are responsible for implementing such measures. Such reply represents the official opinion o f the Chinese government, but it can not be used as applicable rules for defense during the court adjudication, and which 77  means only the official legal opinion made by the department directly to the people's courts is applicable.  To some extent, there is currently not only one "inquiry point" i n China. In addition, several other departments in Ministry o f Commerce, and some other government agencies under State Council also provide inquiry points for inquirers. For example, the "Bureau o f Fair Trade for Import and Export" (Jinchukou Gongping Maoyi Ju) under the Ministry o f Commerce provides inquiry point for queries on anti-dumping, countervailing, and safeguard measures. However, such inquiry point is only open to the litigants and parties involved in such cases.  Similarly, some other government agencies under the State Council could also accept corresponding queries. For instance, queries on products quality inspection and quarantine can be submitted to the "State Administration for Quality Supervision, Inspection, and Quarantine" ( A Q S I Q ) . However, such inquiry point may not be as efficient as the " W T O Notification and Enquiry Center", which has definite and clear rules on how to handle the queries.  43  In addition to the establishment of the inquiry point, the Ministry of Foreign Trade and Economic Cooperation of China has already begun to publish the "Gazette of the Ministry of Foreign Trade and Economic cooperation", which promulgates all the W T O related laws, regulations, decrees and policies. This may suggest China's effort and willingness to change its policy-making process in accordance with W T O ' s principle of transparency. However, the gazette "does not include state and local laws and, of course, excludes normative documents. Thus, there is really no "single inquiry point" that provides comprehensive coverage of all the legislation and regulations in China. Such 78  access, however, is required by the W T O . "  In this case, I do not hold the same point on  this. Article X of the G A T T contains requirements respecting transparency and the impartial administration of law, but these apply only to a limited subset of China's laws: those affecting trade in goods. Similarly, the corresponding provision of the G A T S applies only to scheduled sectors.  Therefore, I totally agree that China need to ensure  the publication of all its published statutes and internal rules regarding to the matters prescribed by W T O , not all of them, but are those pertaining to the matters prescribed by the W T O .  Generally speaking, the establishment of inquiry points and the Gazette o f the M O F T E C reflect the efforts made by the Chinese Government to comply with its W T O obligations. However, it is still a question that i f Internal Documents, which related to the queries, and  44  whatever made by central or local governments, can be published through the Gazette or accessed by the public through the inquiry point.  a2. Regulatory Reform at the Local Level to Comply with W T O ' s Requirements of Access to Information  Whereas the establishment of the inquiry points by the Ministry of Commerce reflects the efforts made by the Central government to comply with China's W T O ' s obligations in access to information, Local governments in China have also participated in such movements to struggle with "Internal Documents". For instance, we may take a look at the "Provisions of Guangzhou Municipality on Publicizing Governmental Information", which was enacted by the Guangzhou Municipal Government and took in effect from the beginning of 2003. According to this local rule, the people's government at all levels and their functional departments and the organizations exercising administrative powers in accordance with the law shall be the obligors for publicity, and shall perform the obligation of publicizing governmental information in accordance with the law. Individuals and organizations shall be the obligees for publicity, and shall have the right to obtain governmental information in accordance with the law. According to this rule, the government shall voluntarily publicize the governmental information including rules, regulatory documents and other policies and measures; and the government's institutional structure, functions and basis of establishment. The government shall publicize the  See Clarke, supra note 4 at 112.  45  governmental information to the public, including: basis of administrative acts; procedure of administrative acts; time limit of administrative acts.  80  Such rules made by the local government reflect the progress of the local authority to carry out an institutional reform aiming for transparency. Although in some areas like Guangzhou, local governments have carried out reforms to make the governmental information open to the public. However, in most of the local governments, internal document is still a serious issue which undermines China's reform in transparency. I w i l l discuss below the internal documents issue as a limit to the accession to information.  b. The Limit of Access to Information  b l . Case Study  1). W T O ' s Relevant Rules Prescribed in the Agreement on Trade-related Investment Measures (TRIMs)  The Article 1 of the Illustrative List of the Annex of the Agreement on Trade-related Investment Measures (TRIMs) reads:  "TRIMs that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which require: 80  Provisions of Guangzhou Municipality on Publicizing Governmental Information, supra note 115, arts. 9&10. 46  (a) the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether specified in terms of particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its local production;..." 81  2). The Relevant Provisions Prescribed in China's Newly-amended F I E Laws in Compliance with T R I M s  In order to make China's F I E Laws compliance with the W T O rules, especially the provisions of T R I M s mentioned above, on March 15, 2001, The Fourth Session of the Ninth National People's Congress has decided to make amendments to the Law of the People's Republic of China on Chinese-foreign Equity Joint Ventures. In this amendment, the second paragraph of Article 9 in the original is changed into the first paragraph o f Article 10, which prescribes that, "The Joint venture may purchase the materials such as raw materials, fuels, etc. as needed within the approved scope of business either on the domestic or international market according to the principle of 82  fairness and reasonableness."  This provision is one of the new amendments, which  eliminated the local content and some other restrictions which are prohibited by T R I M s , and re-promulgated by the National People's Congress. This can be recognized as an effort made by China to ensure its laws and regulations be compatible with W T O ' s requirement.  3). The Relevant Provisions Prescribed in Administrative Rules Inconsistent with T R I M s and State Laws  81  Ibid, art. 1  47  (Cited from the "Official Reply o f the State Taxation Administration concerning the Tax Refund o f the Domestic Equipment Purchases o f Foreign-funded Enterprises [Letter N o . 954[2001] o f the State Taxation Administration]")  "December 21, 2001 The National Taxation Bureau of Hainan Province: Re: Tax Refund of the Domestic Equipment Purchases of Foreign-funded Enterprises We have received your Referendum concerning the Tax Refund of the Domestic Equipment Purchases of Foreign-funded Enterprises (No.l 14 [2001] of the National Taxation Bureau of Hainan Province). As for the issue of the tax refund of the domestic equipment purchases of the SIDA Pharmacy Manufacturing Factory under the SIDA Pharmacy Limited Company of Hainan Province, We now reply after consideration as follows: With regard to foreign-funded enterprises' branch companies or branch factories without corporate personality but with independent economic accounting, if they purchase domestic equipments in the name of the foreign-funded enterprises, the foreign-funded enterprises is eligible apply for tax refund in accordance with the provisions of the Circular of the State Taxation Administration concerning the Issue of the Proposed Managerial Measures for Tax Refund of Domestic Equipment Purchases of Foreign-funded Enterprises (No. 171 [1999] of the State Taxation Administration). The branch companies (branch factories) without corporate personality under foreign-funded enterprises shall not apply for tax refund."  In this case, the inconsistency between the domestic rules and W T O ' s Principle o f National Treatment does not lie in the state laws enacted by N P C or administrative regulations made by State Council, but lies in the lower level. According to the provision of T R I M s , it is prohibited if, under domestic law or under administrative rulings, compliance with which is necessary to obtain an advantage, and which require the purchase or use by an enterprise of products o f domestic origin or from  Zhonghua renmin gongheguo zhongwai hezijingying qiye fa ("The Law of the People's Republic of China on Chinese-foreign Equity Joint Ventures"), available at: <www.legaldaily.com.cn/gb/content/ 82  48  any domestic source. However, the foreign-funded enterprises, according to the "Official Reply", are eligible to apply for tax refund i f they purchase domestic equipments. This definitely means, i f FIEs purchase domestic equipments, it can "obtain an advantage" (tax  refund).  Therefore, the above "official  reply" made by the State Taxation  Administration is inconsistent with the provisions of T R I M s .  The above "official reply" is an "Internal Document" in a sense, and at the same time, it is also in the form of "administrative rule" which is enacted by ministries or commissions directly under the State Council.  If that is the case, it implies, as Prof. Donald Clarke noted, that,  "although China's trading partners may encounter rules and practices inconsistent with China's WTO commitments and delays in curing these inconsistencies, it is not necessarily due to bad faith and foot-dragging by the central government (although of course that is a possibility)." 83  A s we may find above, the FIE law is revised by the National People's Congress according to the country's W T O obligations, therefore, the inconsistencies are not caused by the central level, but is caused by the sub-branch of the central government or local government, namely the ministries and commissions under the State Council, and provincial or municipal governments.  2001-03/21/content 15067.htm>, (last accessed: September 20, 2003). 83  See Clarke, supra note 4 at 98. 49  This case also implies, to some extent, that, government agencies in China could even take the form of administrative directives that overrode the provisions of existing law, or of laws that overrode the provisions of the constitution.  84  In this context, now the issue is how to make these "Internal Documents" open to public, on the other hand, this also reflects the issue of make the administrative rules or local rules to comply with the laws and administrative regulations which are compliance with the country's W T O commitments, and thus this reflects the conflicts between the administrative power and the judicial power, which could be identified as a judicial review issue.  b2. Issues on Accession to Information — Internal Documents  A s I noted, great efforts have been made by the National People's Congress and the State Council to make the laws and administrative regulations to comply with China's commitments to the W T O , and at the same time, to ensure its publication to the public. However, the problem in China is that besides published regulations, agencies often issue internal unpublished documentationss (Nei Bu Wen Man), which are inaccessible to outsiders and are at times the real rules under which the agency operates. These rules are also known as "normative documents", which are not identified by the "Legislation L a w " and therefore do not have a clear rule-making procedures. I w i l l discuss the legality of  See Donald C. Clarke, "Private Enforcement of Intellectual Property Rights", Available at the website of "The National Bureau of Asian Research": <http://www.nbr.org/regional studies/ipr/chongqing98/clarke essay.html>, (last accessed: September 20, 2003). 84  50  these documents in the next part. The "Official reply" made by the State Taxation Bureau in the above case is just kind of like the "Internal normative Document".  For instance, while the local governments or local governments made and implemented some policies or rules, it fails to notify and inform the investors who have no other means to access such information. With no prior knowledge, it is not strange that investors conduct business in violation of the new rules. W T O requires the government to have its policies and regulations completely transparent to the public. A s to the process o f policymaking, the government must make the information open to the public, and invite comments and suggestions from the latter. Therefore, the publication of Internal Documents becomes a more critical issue.  However, the issue is that, how to force the promulgation authorities o f the Internal Documents to make all o f these internal documents which pertaining to the matters prescribed by the W T O , open to the public. Actually as Dr. Sylvia Ostry noted,  "These internal documents which are below the formal system of laws and administrative regulations are another body of "rules," termed normative documents. These documents are used extensively by administrative bodies, especially at the local level. Indeed, they are a relic of the pre-reform period when legal mechanisms were largely absent. Whether they are legal or not (and no clear ruling exists), they are not published and are probably binding on the bureaucrats who use them. Consequently, the legislative and administrative action at the local level, which technically is controlled by Beijing, still operates with very limited supervision and virtually no transparency. This opacity is the basis of the growth of what is termed "local protectionism," a problem of growing concern to foreign investors and others." 8 5  51  According to Dr. Sylvia Ostry, the issue of "internal documents" is de facto the issue of the publication o f "Normative Documents". Therefore, firstly I w i l l discuss below about the "normative documents", which is associated with the judicial review issue, and afterwards I w i l l provide analysis on these two issues.  2. Evolving Issues on the Compliance of W T O ' s Requirement of Judicial Review with China's Legal Judicial and Legal System  a. W T O ' s Requirement of Judicial Review and China's Law Reform to Comply with the Requirement  W T O ' s requirement of judicial review can be seen from quite a number of W T O agreements reached during the Uruguay Round, including G A T T Article 10, G A T S Article 6, TRIPs Articles 41 to 50, and article 59, Article 4 of the W T O Agreement on Preshipment Inspection, Article 23 of the W T O Agreement on Subsidies and Countervailing Measures, Article 13 of the W T O Agreement on Implementation of Article V I of the G A T T 1994 (antidumping), Article 20 of the W T O Agreement on Government Procurement, Article 11 of the W T O Agreement on Implementation o f Article VII of the G A T T 1994 (customs valuation).  For example, TRIPs Article 41 prescribes,  See Ostry, supra note 10 at 13. 52  "Parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in a Member's law concerning the importance of a case, of at least the legal aspects of initial judicial decisions on the merits of a case." 86  In order to comply with its W T O obligation on judicial review, China has revised its Patent L a w and Trademark law, and prescribes judicial review in these two legislations. For example, the "Trademark Law of the People's Republic of C h i n a " which was revised by the National People's Congress on October 27, 2001, makes it clear that the People's Courts have the power of judicial review over some specific administrative rulings. According to the Trademark Law, i f a party files an opposition against a trademark that has been given preliminary examination and approval and has been publicly announced, it may apply to the Trademark Review and Adjudication Board for a re-examination. If it doesn't agree with the ruling of the Trademark Review and Adjudication Board under the Trademark Office, it may bring a suit before a people's court. The people's court shall notify the opposite party to the trademark re-examination proceedings to join in the case 87  as the third party. After the Trademark Review and Adjudication Board has made the ruling of maintaining or revoking a registered trademark in dispute, it shall notify the parties concerned in writing. If a party refuses to accept the ruling of the Trademark Review and Adjudication oo Board, it may bring a suit before a people's court. If a party disagrees with the decision of the Trademark Office to revoke a registered trademark, it may apply for a re-examination, and the Trademark Review and See World Trade Organization: "Agreement on Trade-Related Aspects of Intellectual Property Rights" (TRIPs), supra note 26, art. 41. See Zhonghua Renmin Gonghe Guo Shangbiao Fa ("Trademark Law of the People's Republic of China") (2001), art. 33, available at <http://www.edu.cn/20010101/21377.shtml>, (last accessed: September 20, 2003). 86  8 7  53  Adjudication Board shall make a decision and notify the applicant in writing. If the party disagrees with the decision o f the Trademark Review and Adjudication Board, it may OQ  bring a suit before a people's court. In the event o f any o f the acts, infringing upon the right to exclusive use o f a registered trademark, and a dispute arises accordingly, the parties shall negotiate to settle it; i f any party refuses to negotiate or the negotiation has failed, the registrant of that trademark or the interested persons may bring a suit before a people's court, as an alternative, they may request the administrative department for industry and commerce to handle the matter. If a party disagrees with this handling decision, it may bring a suit before a people's court according to the Administrative Litigation L a w o f the People's Republic o f China. The administrative department for industry and commerce handling the case may, upon the request o f a party, conduct mediation over the amount of compensation for the infringement o f the right to exclusive use of the trademark; i f the mediation has failed, the party may bring a suit before a people's court according to the C i v i l Litigation L a w of the People's Republic o f C h i n a .  90  In addition, the newly promulgated "Anti-dumping Regulations" (Fan Qingxiao Tiaoli) and "Countervailing Regulations" (Fan Butie Tiaoli), the courts are granted the power to review the decisions made by the government on anti-dumping and countervailing. However, as the judicial review to the Safeguards measures are not required by the W T O Safeguards agreement, therefore the "Safeguards Regulations" enacted by the State Council does not have such judicial review requirement either.  8 8 8 9  "Trademark Law of the PRC", supra note 88, art.43. "Trademark Law of the PRC", supra note 88, art.49.  54  b. The Limits of the Judicial Review in China's Regulatory System  The Chinese government has paid its efforts, which can be seen in the amendment of the Patent Law and Trademark Law, and the enactment of the several administrative regulations as well, to make its laws and regulation to comply with W T O ' s requirements of judicial review; however, there are still quite a number of limits to the judicial review powers granted to the courts. A s Dr. Pitman Potter noted, According to the Administrative Litigation Law, courts hearing A L L cases are authorized to review only the legality and not the propriety of administrative decisions. It fails to empower courts to review rulemaking, standard setting, and other administrative norm-making activity. All of which constitute important powers under typical administrative law. In other words, most procedural activity is beyond the scope of review of the courts. 91  For example, according to the "Administrative Litigation L a w " , the people's courts shall not accept suits brought by citizens, legal persons or other organizations against administrative rules and regulations, or "decisions and orders with general binding force formulated and announced by administrative organs" ; or, specific administrative acts that shall, as provided for by law, be finally decided by an administrative organ. N o w , we 92  may take a look at the definition of the Laws, Regulations, Rules, and "Normative Documents".  "Trademark Law of the PRC," supra note 88, art.53. See Pitman B. Potter, Judicial Review and Bureaucratic Reform: The Administrative Litigation Law of the PRC, in DOMESTIC L A W REFORMS IN POST-MAO CHINA (Potter ed. 1994). w  91  92  "Trademark Law of the PRC", supra note 88, art.12. 55  b l . Laws (Fa Iv), Regulations (Fa gui), Rules (Gui zhang), and "Normative Documents" (Gui fan xing wen jian)  " L a w " (Fa Lv) —Enacted and Promulgated by National People's Congress and its Standing Committee The Legislation Law prescribes the state legislative power shall be exercised by the National People's Congress and its Standing Committee. The legislations made by the National People's Congress and its Standing Committee are defined as " l a w s " .  "Administrative Regulation" (Xing Zheng Fa Gui)—Enacted  93  by the State Council  According to the Legislation Law, in the event that no law has been enacted, the National People's Congress and its Standing Committee may authorize the State Council to enact "Administrative Regulation" concerning the relevant matters as-needed, except i n matters relating to crime and criminal punishment, deprivation o f citizens' political rights, compulsory measures and penalties restricting a citizen's personal freedom, and the judicial system. More over, it also prescribes that, the State Council enacts 94  "Administrative Regulation" in accordance with the Constitution and law. A n administrative regulation may prescribe matters that demand the enactment o f an administrative regulation for the purpose o f implementing a l a w .  95  Although Administrative Regulations are enacted by the State Council, they are de facto drafted by the appropriate ministries under the State Council. For example, some  9 3 9 4  "Legislation Law of PRC", supra note 27, art.7. "Legislation Law of PRC", supra note 27, art.9.  56  regulations, such as "Anti-dumping Regulations" (Fan Qingxiao T i a o l i ) , "Countervailing Regulations" (Fan Butie Tiaoli), "Safeguards Regulations" (Baozhang Cuoshi Tiaoli), "Regulations on the Administration of the Imports and Exports of the Goods"(Huowu Jinchukou Guanli Tiaoli), and "Regulations on the Administration of the Imports and Exports of the Technology" (Jishu Jinchukou Guanli Tiaoli), are enacted by the State Council, but they are drafted by the Ministry of Commerce (the former Ministry of Foreign Trade and Economic Cooperation).  "Administrative Rules" (Bu Men Gui Zhang) —Enacted by the Ministries and Commissions of the State Council A l l the ministries and commissions of the State Council, the People's Bank of China, and the General Administration for Auditing, and organs with administrative functions directly under the State Council may, in accordance with laws, administrative regulations, decisions and orders of the State Council, enact "Administrative Rules" within the scope of its authority. A matter for which an administrative rule has been enacted shall be one that is within the scope of implementing law, administrative regulations, decisions or orders of the State C o u n c i l .  96  Administrative Rules are always made by the ministries and departments to supplement the administrative regulations made by the State Council. Foe example, in order to.ensure the implementation of the "Anti-dumping Regulations", "Countervailing Regulations" , "Safeguards Regulations", the Ministry of Commerce enacts the "Rules on Anti-dumping Investigation Hearing", "Rules on Countervailing Investigation Hearing", and  9 5 9 6  "Legislation Law of PRC", supra note 27, art.56. "Legislation Law of PRC", supra note 27, art.71.  57  "Rules on Safeguards Investigation Hearing", which are so called "administrative rules".  "Local Regulations" (Di Fang Xing Fa Gui) —Enacted by the People's Congress o f Provinces and Large Cities The People's Congress o f a province, autonomous region, or municipality directly under the Central Government and the Standing Committee thereof may, according to the specific circumstances and actual needs o f the jurisdiction, enact " L o c a l Regulations" provided that such enactment does not contravene any provision o f the Constitution, laws or administrative regulations. O n the other hand, the people's congresses and standing committees thereof o f comparatively large cities may, according to the specific circumstances and actual needs o f the jurisdiction, enact local regulations provided that they do not contravene any provision o f the Constitution, laws, administrative regulations or local regulations in force in the province or autonomous region in whose jurisdiction the city is situated, for implementation upon approval by the standing committee o f the People's Congress o f the province or autonomous region. The standing committee o f the People's Congress o f the province or autonomous region shall review the legality o f a regulation submitted to it for approval, and shall grant approval within four months i f such regulation does not contravene any provision o f the Constitution, laws, administrative regulations, and the local regulations in force in the province or autonomous region i n which the city is located.  97  "Legislation Law of PRC", supra note 27, art.63.  58  " L o c a l Rules" (Di Fang Zheng Fu Gui Zhang)—Enacted by the People's Government o f Provinces, Autonomous Regions, Municipalities Directly under the Central Government or Comparatively Large Cities The people's government o f provinces, autonomous regions; municipalities directly under the central government or comparatively large cities may enact " L o c a l Rules" in accordance with the laws, administrative regulations and local regulations o f the province, autonomous region, or municipality directly under the central government. A local rule may provide for those matters including the matters for which enactment o f a local rule is required for the purpose o f implementing a law, administrative regulation or local regulation; matters which are within the regulatory scope of the local jurisdiction.  "Normative Documents" (Gui fan xing wen jian) —Enacted by the authority on a level under the promulgation institution o f " R u l e s " A s mentioned above, local rules are enacted by the provincial government and administrative rules are enacted by the government agencies directly under the State Council, what i f some local authorities under the provincial government want to enact any administrative directives, orders, and decision? According to the Administrative Litigation L a w , such directives, orders and decisions are defined as "decisions and orders with general binding force formulated and announced by administrative organs", and is 99  so called "Normative Documents".  "Legislation Law of PRC", supra note 27, art.73. "Trademark Law of the PRC", supra note 88, art. 12.  59  According to the Legislation Law, laws, administrative regulations, local or administrative rules shall be published in timely fashion in the Bulletin of the corresponding promulgation authority after any of them is signed and promulgated. These articles constitute the China's regulatory norms on access to information.  100  Whereas the formations, enacting procedures, and publication of "laws", "regulations", and "rules" are prescribed in the "Legislation L a w " , however, "Normative Documents" are not included in the "Legislation L a w " , which means such documentations are made without any restrictions, and the publication of them are not required by the law. Obviously, such "Normative Documents" are the origin of the "Internal Documents", the issue of the "Internal Documents" is de facto the issue of the Publication of the "Normative Documents".  b2. Issues in the limits to the Judicial Review Power of the Courts  A s Dr. Pitman Potter noted, "The administrative law system in China is intended primarily to ensure that subordinate institutions comply with directives from their superiors, but not from the court. According to the A L L , a decision by an administrative agency can be overturned by a court only if the decision is in violation of the agency's own rules, while the legality and interpretation of these rules remains the province of the agency, not the court." 10  The specified limits just mentioned can be seen from the following domestic statutes,  "Legislation Law of PRC", supra note 27, arts.52, 62, 70, and 77. See Potter, supra note 2, at 138.  60  According to the "Legislation L a w " , when a law or administrative regulation is enacted by the state and becomes effective, any provision of the local regulations that contravenes such law or administrative regulation shall be invalid, and the enacting body shall amend or repeal such provision in a timely fashion.  102  The "Legislation L a w " also prescribes that the Standing Committee of the National People's Congress has the power to invalidate any administrative regulation which contravenes the Constitution or any law, and to invalidate any local regulations which contravene the Constitution or any law or administrative regulation. However, on the other hand, it is the State Council which has the authority to amend or withdraw any inappropriate administrative rules or local rules.  103  The "Administrative Litigation L a w " prescribes that, in handling administrative cases, the people's courts shall take, as references, regulations formulated and announced by ministries or commissions under the State Council in accordance with the law and administrative rules and regulations, decisions or orders of the State Council and regulations formulated and announced, in accordance with the law and administrative rules and regulations of the State Council, by the local governments. If a people's court considers regulations formulated and announced by a local people's government to be inconsistent with regulations formulated and announced by a ministry or commission ' under the State Council, or i f it considers regulations formulated and announced by ministries or commissions under the State Council to be inconsistent with each other,  "Trademark Law of the PRC", supra note 88, art.64. "Trademark Law of the PRC", supra note 88, art.88.  61  the Supreme People's Court shall refer the matter to the State Council for interpretation or ruling.  104  According to the "Regulations on the Procedure for Enacting Rules" (Note: This is not the "Regulations on the Procedure for Enacting Administrative Regulations", Administrative Regulations are promulgated by the State Council, while the Rules are promulgated by the Ministries or commissions of the State Council, or by the Provincial level People's government), the departments of the State Council, or the Provincial people's governments should always review their rules. If they find any rules which are inconsistent with the laws or administrative regulations, the departments of the State Council or the local government should amend or withdraw the rules.  105  According to the newly Promulgated "Provisions of the Supreme People's Court on Several Issues Concerning the Hearing of International Trade Administrative Cases", which was promulgated by the Supreme People's Court as a Judicial Interpretation and took effect since October 1st, 2002, in the hearing of an international trade administrative case, a people's court shall make the legality examination of the accused specific administrative acts in the following aspects pursuant to the "Administrative Litigation L a w " and in light of the specific details of the case, Whether: 1) the major evidence is true and adequate; 2) the application of law is correct; 3) there is any violation of legal procedures; 4) there is any transgression of competence; 5) there is any misuse o f  Administrative Litigation Law of PRC, supra note 34, art. 53. See Guizhang Zhiding Chengxu Tiaoli ("Regulations on the Procedure for Enacting Rules") (2002), art. 37, available at: <www.legaldaily.com.cn/gb/content/ 2001-1 l/27/content_27992.htm>, (last accessed: September 20, 2003). 104 105  62  authority; 6) the administrative punishment is obviously unjust; 7) there is any failure to perform or delay in performing the legal duties.  106  This Judicial Interpretation also prescribes that, a people's court shall, in the hearing of international trade administrative cases, follow the laws and administrative regulations of the People's Republic of China, as well as the local regulations, which relate to or affect the international trade, enacted by the local legislatures within the statutory legislative authority. A people's court shall, in the hearing of international trade administrative cases, refer to the departmental regulations, which relate to or affect the international trade, enacted by the departments under the State Council within their respective authority in accordance with laws and the administrative regulations, decisions and orders of the State Council, and shall refer to the regulations of local governments.  According to the "Regulations on the Archival Filing of Regulations and Government Rules", which was enacted by the State Council on December 14, 2001, the legislative affairs organ of the State Council shall review the regulations and government rules submitted to the State Council for archives filing whether: 1) they are formulated beyond the authority of the organs of enactment; 2) the law on the next lower level is inconsistent with the law on the next higher level;3) either o f them or both of them shall be changed or revoked, in case a local government rule is inconsistent with any ministerial rule or there are inconsistent provisions in different rules concerning a same matter, 4) the  106  See Zuigao Renmin Fayuan Guanyu Shenli Guoji Maoyi Xingzheng Anjian Ruogan Wenti de  Guiding, ("Provisions of the Supreme People's Court on Several Issues Concerning the Hearing of International Trade Administrative Cases") (2002), Art. 6, available at: <http://www.lawyers.net.cn/staticcont/4448.htm>, (last accessed: September 20, 2003).  63  provisions of the government rules are appropriate; 5) they are enacted against statutory procedures.  107  If, upon review, any government rules is formulated beyond authority or is  against the provisions of any law or administrative regulation or the provision thereof is improper, the legislative affairs organ of the State Council shall suggest the enactment organ to make corrections; or the legislative affairs organ of the State Council shall put forward its opinions on handling and report to the State Council for approval, which shall be circulated to the enactment organ.  108  Concluded from the provisions provided above, the issues we may find are as follows,  Firstly, the people's courts can only review the cases which are against the specific administrative decisions made by the administrative authority, but they can not review the administrative rules or local rules, or even the "decisions and orders with general binding force formulated and announced by administrative organs" (known as "normative documents") which are made by the even lower level local authority.  109  Moreover, when  they are hearing the administrative cases, they should follow all of these kinds of rules and documents to make its decision and ruling.  Secondly, the power of reviewing the propriety of the administrative rules and local rules, and also the power to amend or withdraw such rules remains in the administrative authority, but not granted to the courts, at the same time, even the National People's  See Fagui Guizhang Beian Tiaoli (Regulations on the Archival Filing of Regulations and Government Rules) (2001), art. 10, available at <www.wtosz.org/newlaw-3.htm>, (last accessed: September 20, 2003). See "Regulations on the Archival Filing of Regulations and Government Rules", supra note 112, art. 14. "Trademark Law of the PRC", supra note 88, art. 12. 107  108  1 0 9  64  Congress only has the authority to amend or withdraw the administrative regulations enacted by the State Council or local regulations enacted by the local People's congress.  Thirdly, although the "Legislation L a w " does not identify "Normative documents" as a kind of legislation, however, such documents are "protected" by the "Administrative Litigation L a w " from being reviewed by the courts. Therefore, more and more "normative documents" are made by the local governments, because the promulgation authority does not have the obligation to open them to the public (The "Legislation L a w " does not prescribe), and they can not be reviewed by the courts (prescribed by the "Administrative Litigation L a w " as "decisions and orders with general binding force formulated and announced by administrative organs" which can not be reviewed by the courts).  A l l of these are serious obstacles which undermine the building of a sound judicial review system. A s Dr. Sylvia Ostry noted, "The courts could not adjudicate administrative cases effectively without ruling on the validity of underlying administrative regulations. If the courts cannot interfere in the exercise of administrative powers of the state, it follows that it is not possible for China to fulfill the requirement for review of administrative actions." 110  I w i l l provide analysis below on the issues of "internal documents" and "normative documents" which are associated with access to information and judicial review respectively.  See Ostry, supra note 10 at 14.  65  3. Analysis— Localism, Dominant Administrative Power and the Theory of the Separation of the Power  a. Localism and the Dominant Administrative Power Access to information and judicial review are two basic requirements as the embodiment of W T O ' s principle of transparency. While the "internal documents" is a transparency issue associated with access to information, "normative documents" is another issue related to judicial review. In addition to that, the limit to the power granted to the courts to review administrative or local rules looks also serious.  From my point of view, these issues are due to localism and the dominant administrative power.  Firstly, although China has a centralized form of government, local governments still enjoy considerable autonomy.  111  A s the local governments collect revenues from local  enterprises, it thus become their great concern that whether or not local enterprises can make profit. A s I mentioned above, the monopoly behavior o f some local enterprises, which I identify as a national treatment issue; and the "internal normative documents" made by the local governments, which I identify as a transparency issue, are both due to the local protectionism. A s Professor Donald Clarke noted,  "The main factor behind local economic protectionism is the dependence of local government upon local enterprises for revenues. To the extent a government collects revenues, whether in the form of taxes or profits from an enterprise, it is similar to an owner and has an interest in protecting those revenues. When the owner of an enterprise can control the conditions under which that enterprise competes, the 111  See generally Clarke, supra note 4 at 107.  66  results are utterly predictable. It is generally in the interest of the central government to expand its sphere of actual authority and to reduce such local protectionism."" 2  Secondly, the issue o f "normative documents" is also due to the dominancy o f the administrative power. A s we may find, according to the statutes, people's courts are not granted the power to review the propriety of the administrative or local rules, and the "normative documents" as well, which are made by central government agencies or local governments. Such powers remain to the government authorities. This reflects the dominancy o f the administrative power. If the administrative power prevails over the judicial power, it seems most impossible that a sound system of judicial review can be well established.  The laws promulgated by the People's Congress are too generalized, and it thus leave a great deal o f discretion to the central and local government to make detailed administrative or local rules to implement these laws, and that is the reason why the reason why there are so many administrative or local regulations, rules, or normative documents. A s Dr. Sylvia Ostry and Prof. Donald Clarke pointed out,  "This reflects the Chinese laws tend to be highly generalized and lack any specified procedures through or by which policy will be developed. Thus, bureaucrats who implement law are given enormous scope and discretion." 113  "Consequently, while statutes are superior to regulations issued by government ministries in China's formal constitutional structure, both government officials and court officials will generally consider a ministry regulation that is directly on point to be the applicable rule." 114  112 113 114  See generally Clarke, supra note 4 at 107. See Ostry, supra note 10 at 13. See Clarke, supra note 4 at 109.  67  b. Theoretical Analysis—The Theory o f the Separation of the Power  The above analysis indicates the importance of the separation o f powers. The basic value of the separation o f powers is to assure an independent judiciary as a last resort for justice. Alexander Hamilton had insight that supported separation of powers as a base for judicial independence. 115 H e argued that the judiciary has the least capacity to offend or injure political rights. This is because the executive not only dispenses the honors, but also holds the sword o f the community; and the legislature not only commands the purse, but also prescribes the rules by which the duties and rights o f every citizen are to be regulated. The judiciary, on the contrary, has neither force nor w i l l , but merely judgment; and must ultimately depend upon the aid o f the executive arm even for the efficacy o f its judgments. 116 Since the judiciary is the weakest o f the three, all possible care must be taken to enable it to defend itself against attacks from the legislative and executive. So Hamilton argued "there is no liberty, i f the power of judging be not separated from the legislative and executive powers". 117 H e also argued that, as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either o f the other departments, nothing could contribute so much to its firmness and independence as permanency in office. 118  James Madison, Alexander Hamilton, and John Jay: The Federalist Papers (UK: Penguin Books, 1987)437. James Madison, Alexander Hamilton, and John Jay: The Federalist Papers (UK: Penguin Books, 1987)437. James Madison, Alexander Hamilton, and John Jay: The Federalist Papers (UK: Penguin Books, 1987)437.  115  1 1 6  1 1 7  68  Montesquieu, the celebrated founder of the theory of separation of powers in Western democracy, clarified the necessity for judicial independence. H e argued that when legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, nor is there liberty i f the power of judging is not separate from legislative power and from executive power. 119  Rousseau's analysis on legislative power was also insightful here. H e pointed out that Rome's perished simply because it had put both the legislative authority and sovereign power in the same hands. 120  From this regard, separation of powers therefore is not the end but mean to the rule of law and democracy. Separation of powers in Western democratic government is to ensure the judiciary's separation from the legislative branch and executive branch. In this context, I proposed the following solutions to limit the power of the government.  4. Proposed Solutions— Amending the Administrative Litigation Law  A s I identify the "internal documents" as a transparency issue associated with the W T O ' s requirement of access to information, while the limit of the judicial power to review "normative documents" and other administrative rules is a transparency issue associated  118  James Madison, Alexander Hamilton, and John Jay: The Federalist Papers (UK: Penguin Books, 1987)437. Montesquieu, "The Spirit of the Laws", Trans.& Ed. Anne M . Cohler, Basia Carolyn Miller, and Harold Samuel Stone, (UK: Cambridge University Press, 1989) 157 Rousseau. "On the Social Contract", Trans. Maurice Cranston. (London: Penguin Books, 1968) 856. 1 1 9  120  69  with W T O ' s requirement of judicial review. In this context, as an approach for China is to carry out a law reform in its administrative law regime, especially to the Administrative Litigation Law. M y suggestions to resolve these two issues are as follows,  a. Suggestion for resolving the "internal documents" issue—disabling unpublished "internal documents" to be the applicable law in the trial  According to the "Administrative Litigation L a w " , "normative documents" should be followed by the courts for reference, and is de facto to be used as applicable law in administrative trials. In order to make any "internal documents" open to the public, the "Administrative Litigation L a w " should be amended and prescribe that only the normative documents which are open to the public can be used as applicable law, at the same time, any unpublished "internal documents" can not be used by the courts as the applicable law in the trial. If so, this will not only force the appropriate authority to publish any of their normative documents which have general binding force, but w i l l also protect the regulated entities who can not access to those documents.  Obviously, i f an applicable law to be used in a trial can not be accessed by the regulated entities, it is certainly unfair for the regulated entities in the trial to get the decision from the judiciary according to those unpublished provisions. Therefore, deprive the effectiveness of the unpublished internal normative documents to be the applicable law is necessary to protect the interest of the regulated entities and to force the promulgation authority to publish their normative documents.  70  b. Suggestion for resolving the issues injudicial review—Granting the power to the courts to review the propriety of the normative documents  The courts are not granted the power by the "Administrative Litigation L a w " to review the administrative and local rules or normative documents, and this does not comply with W T O ' s judicial review requirement.  Administrative rules and local rules are prescribed by the "Legislation L a w " , and the power of amendment or withdrawn of these rules remains to the government authority. A s for today, due to the unavoidable restrictions, I do not think the "Legislation L a w " can be revised and deprived of such power from the government authority to the judiciary. However, I do think that the courts should be granted the power to review the "normative documents", which are defined by the "Administrative Litigation L a w " as the "decisions and orders with general binding force formulated and announced by administrative organs". This is because that, as for the administrative rules and local rules, all o f the procedures of their draft, enactment and publication is prescribed by the "Legislation L a w " . However, normative documents are only made subject to the discretion of the head of the local government, but it does not have a transparent rule making procedure. Therefore, it is necessary to grant the power to the courts to review such local normative documents. Although I totally agree that such power should also be granted to the courts to review local or administrative rules, however, at this point, granting the power to the  71  courts to review the normative documents may be regarded as the first step for the administrative law reform rather than being considered as a compromise, c. In search of the feasibility of the suggestions  China has already noticed such serious issues in its administrative law, and this can be seen from a journal article written by M r . Justice Cao Jianmin, the V i c e President (Associate C h i e f Justice) of the Supreme People's Court of P . R . C . In his article, Cao also holds the similar point that some normative documents, which are made for the purpose 121  of local protection, should be subject to review by the people's courts.  This not only  implies that China tends to grant the power to the courts to review normative document, it, from my opinion, is also an implication that the legality and effectiveness of normative documents made by local governments w i l l be challenged in the near future. Therefore, I believe it is feasible to revise the "Administrative Litigation L a w " and prescribe that any unpublished normative documents ("internal documents") can not be used as applicable law by the courts.  "Normative documents" are widely considered administrative decisions far more than legislations. Therefore, such administrative decisions, which do not have uniformed transparent rule-making procedures, should be open to the public for accession, and is necessary to be reviewed by the courts for its propriety.  Cao Jianmin, Jiaru WTO dui zhongguo sifa gongzuo deyingxiang he sikao, (Thoughts on Entering  the WTO and Its Effects to China's Judicial Works), Faxue, (Jurisprudence), Vol. 6, (2001): 64.  72  The above proposed solutions are de facto approaches for two purposes, one is to limit the power o f the government, and the other is to strengthen the judicial power o f the courts. It seems most likely that these w i l l be helpful to improve the implementation o f China's commitment to the W T O for the requirements of accession to the information and judicial review.  73  C. W T O ' s Rule of Law Principle and China's Judicial Reform: Evolving Issues in Judicial Independence  The G A T T Article X prescribes that, ".. .3.(a)Each contracting party shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind 122 described in paragraph 1 of this Article." In addition, the article X X I V of G A T S also prescribes that,  "Each contracting party shall take such reasonable measures as may be available to it to ensure observance of the provisions of this Agreement by the regional and local governments and authorities within its territories." 123  These provisions are some o f the embodiments o f the W T O ' s principle o f Rule o f Law.  However, there are quite a bit of issues on the lack o f judicial independence and poor qualification o f judges, which undermine the implementation o f the W T O rules. A s Professor Donald Clarke noted,  "The issue is that of the capacity of China's courts to handle a substantial workload of reasonably complex cases. It has been widely known for some time that China's courts are weak and its judges, on the whole, poorly qualified." 124  World Trade Organization: The Agreement on Trade-related Investment Measures (TRIMs), Annex, the Illustrative List, art. 10 available at <http://www.wto.org/english/docs e/legal e/18trims e.htm>, (last accessed: September 20, 2003). World Trade Organization: The Agreement on Trade-related Investment Measures (TRIMs), Annex, the Illustrative List, art.24 available at <http://www.wto.org/english/docs e/legal e/18trims e.htm>, (last accessed: September 20, 2003). See Clarke, supra note 4 at 108. 123  124  74  The qualification of a judge is critical to the capacity of Chinese courts to handle with cases, and the procedure for appointment as a judge is key feature of the judicial independence and accountability. Law enforcement requires an efficient and independent court system staffed by trained legal professionals. 125  " T o govern the country according to law and make it a socialist country with rule of law"i26 is one of the very important goals for the modernization of China. For many years, great effort has been made to set up a sound legal system by promulgating laws, amending laws, and abolishing laws. However, the rule of law does not only require a good legislative system, but also requires a well-designed judicial system. China has also pushed judicial reforms hard. The promulgation and amendment of the Judges Law is a good example. However, for a series of reasons, there are still lots of issues and problems in the system of the selection and appointment of judges in China, which affects the judicial independence.  1. Evolving Issues and the Relevant Rules on Judicial Independence and Judicial Accountability  a. The Position of the People's Court in the "Politics and Legal System" {Zheng Fa Xi Tong) — Influence of the Party Power and the Interplay between the Administrative Power and the Judicial Power  See generally Charles McClain & Hang-Sheng Cheng: "China's Foreign Trade And Foreign Investment Law ", Available at <http://www. 1990institute.org/publications/pubs/isupapl 1 .html>, (last accessed: September 20, 2003). 125  75  The policy of " T o govern the country according to law and make it a socialist country with rule of l a w " is recognized as the regime's commitment to build its legal system with Rule of Law. However, to some extent, "building a socialist country with rule of l a w " can be interpreted as "building the country with rule of law under the leadership of the Communist Party". Just as Professors Charles M c C l a i n and Hang-Sheng Cheng argued,  "To this day the Chinese legal system still followed the Soviet model, in which the Party retains an overall right of control over the courts. Interference by Party and local government officials in judicial decision-making remains formidable day-today problems." 127  Furthermore, Dr. Sylvia Ostry argued, "The essence of the problem is that there is no clear separation of powers in Chinaonly a separation of functions. There cannot be, therefore, an independent judiciary." 128  To a certain extent, these issues are due to the control of judicial power by the Communist Party through the organization of "political-legal" system, (Zheng Fa Xi Tong), which is organized as the "political-legal" committee of the party committee, and controls the People's courts, People's Procuratorate, and Public Security Bureau and department of Justice of the People's Government. The "political-legal" system seriously undermines the judicial independence of the law courts in China. For instance, in quite a number of provinces, the positions of the Head (Secretary) of the "political-legal" committee are always held by the head of the Public Security Bureau which belongs to the People's Government. A s I mentioned, People's Courts are de facto controlled by the  126  127  See "the Constitution of the PRC", supra note 17, art. 13. See generally McClain & Cheng supra note 125. 76  "political-legal" committee, therefore, even the Chief Judge o f the People's Courts have should follow the instructions from the head o f the Public Security Bureau.  Although in appearance, the ranks of judiciary in China, including in the People's courts, and People's Procuratorate are one level higher than that o f the appropriate or corresponding level government agencies, however, the head o f the "political-legal" committee as well as the Public Security Bureau. For example, whereas the Chief Justice o f the Province has an administrative rank which is equivalent to the V i c e Governor o f the Province, the head o f the "political-legal" committee as well as the Public Security Bureau may hold a even higher position in the Provincial Party Committee, such as the Standing Committee Member o f the Provincial Party Committee (Sheng Wei Chang Wei), and even the Deputy Secretary o f the Provincial Party Committee (Sheng Wei Fu Shu Ji).  Although the Chief Justices o f Provinces enjoy the rank o f V i c e Governor, however, in term o f within the party committee, they could only hold a position as a member o f the Provincial Party Committee (Sheng Wei Wei Yuan), but not the Standing Committee Member the Provincial Party Committee (Sheng Wei Chang Wei), not mention the Deputy Secretary o f the Provincial Party Committee (Sheng Wei Fu Shu Ji). Therefore, i n a country like China which is totally dominated by the Communist Party, we shall not be surprised that the Head o f the Provincial Department o f Public Security could control the works o f the Chief Justice o f the Province, and even some V i c e Governors o f the Province, i f these V i c e Governors are not the Standing Committee Member o f the Provincial Party Committee (Sheng Wei Chang Wei). 128  See Ostry, supra note 10 at 14.  77  In terms o f the "Political L e g a l " system, Dr. Donald Clarke noted that, "This is due to the tradition of judicial deference to administration. This tradition is reinforced in a very concrete way by the structure of courts, which are at every level part of the so-called "political-legal" system at the same level of the administrative hierarchy. This system is a vehicle of Party control that coordinates the activities of courts, police, and prosecutors."  Moreover, Professor Stanley Lubman argues that, "In China, there is no underlying principle that law is supreme. Although Chinese leaders talk about the rule of law, they seem to mean rule by law, which is to use rules as instruments to maintain social discipline rather than to limit the power of the state. The conflict between a rule of law and supremacy of the Chinese Communist Party has not even been addressed."  In addition, Professors Charles M c C l a i n and Hang-Sheng Cheng argued, "For instance, the Basic or Local Courts in China always have close connections with local governments. Most local judges are former local government officials and maintain close ties with their fonner colleagues. These relationships have inevitably compromised judicial independence and impeded the execution of justice at times. It is very difficult to win cases brought against local government officials, and even when litigants win, they often find it impossible to enforce the judgments." 131  However, I w i l l discuss below the judicial independence issues in China from a legal perspective with focus on the Judges L a w and the relevant legislations, but not from such a political perspective.  According to the Judges L a w and the Organic L a w of the People's Court, judges in a People's Court" include the president and vice presidents o f the court, members o f the judicial committee, chief and assistant judges o f respective divisions, judge and assistant  See Clarke, supra note 4 at 113. Stanley B. Lubman, There's No Rushing China's Slow March to a Rule of Law, L.A. TIMES, Oct. 19, 1997, at M2. For a fuller exposition of the implications of the law as an instrument of policy enforcement, see Lubman, Studying Contemporary Chinese Law: Limits, Possibilities, and Strategy, 39 A M . J. OF COMP. L. 293 (1991). 130  78  judge. 132 In practice, not only is the court itself at an equivalent administrative level with executive branches of government, but each judge has also an equivalent administrative grade/official rank with civil servants in government. For example, the president of the Supreme Court of China is at the same administrative rank as the vice Prime Minister, the vice president of the Supreme Court with the Minister, and the president of the provincial H i g h Court with V i c e Minister or V i c e provincial Governor, etc. 133 Meanwhile, all judges are elected or appointed according to the above titles by the People's Congress and its standing committees at corresponding levels. The treatment of a judge is also related to his or her administrative grade/official rank.  Therefore, for a long time, this kind of system encouraged judges to pursue promotion in administrative grade/official ranking, and evaluation of judges was usually based on their administrative post. Since the president, vice presidents of a court, or the chief judges of a division in a court are judges as well as the administrator of the court or division, they have to devote themselves to the administration of the court this results in a shortage o f judges, and aggravates the case burden on judges and reduces the quality of the judgments. This happens more often in higher-level courts. 134  In December 1997, the Organization Department of Central Committee of Communist Party of China, the Ministry of Personnel and the Supreme Court of China jointly issued  See generally McClain & Cheng supra note 125. Judges Law of PRC, supra note 20, art.2, and "the Organic Law of the People's Court of China", arts. 19, 24, 27, and 31, supra note 49. Zhang Weiping, Zhongguo sifa zhidu de feixingzhenghua, (On the Non-administrationalization of Judicial System of China), Fashang Yanjiu, (Research on Law and Commerce), Vol. 3, (2000): 3. X u Qianfei, Zhongguo faguan Yuan E zhidu yu sifa gaige, (The Ratio System of Judges in China and Judicial Reforms), Falv Shiyong, (the Application of Law), Vol.12 (2002): 13. 131  132  133  134  79  the Interim Provisions on the Grades o f Judges o f China and the Supreme Court accordingly set down the Implementation Measures on the Assessment o f the Grades of Judges. 135 It is the first time in the history that Judges in China had professional titles.  However, this system still has very close affiliation with administrative ranking.  First o f all, the criteria for assessing the ranking o f judges are mainly based on the administrative position that a judge has already held combined the term of this position and the term o f work experience. 136  Secondly, this system is not related to the treatment o f judges, which is still based on their administrative ranking as compared to that o f the civil servant.  Finally, the ranking system exists together with that o f the administrative branches; judges are still elected, appointed, and treated according to the administrative level, and the ranking system has become an honor to some extent. The purpose o f the ranking system is to set up a judicial profession and distinguish it from the civil service system. However, it w i l l get rid of the influence o f the administrative ranking and  According to these two provisions and measures, all the judges are divided into four classes and twelve grades. The four classes are: Chief Justice, Justices, Senior Judges and Judges. The twelve grades are: Chief Justice, Justice of Grade I and Grade II, Senior Judges of Grade I to Grade IV, Judges of Grade I to Grade V . See Zhonghua Renmin Gongheguo Faguan Dengji Zanxing Guiding (the Interim Provisions on the Grades of Judges of China), art. 5, available at: <http://www.lawbase.net.cn/china exam/law.asp?lawid=990>, (last accessed: September 20, 2003). Interim Provisions on the Grades of Judges of China, supra note 144, art. 5. 136  80  bureaucratization, and thusi37 in the long run, the bureaucratization of the judges likely results in unprofessionalism.  b. The Localism of the Appointment and Treatment of Judges  According to the Constitution Law and the Organic Law of the People's Court, not only are the courts set up according to administrative demarcation and are responsible to the local congress, 138 but all judges are elected and appointed by the local congress. The judges cannot move very conveniently due to the registered household system, which enhances the connection between the judges and the local community.  Moreover, the financial support (including the equipment of the courts, routine expenses as well as the salary of judges) of the local courts is dependent on local governments at the same level.  The localism of the judges impairs the uniformity and consistency of the judicial system and results in a lot of problems.  First of all, it is inconsistent with the nature of the courts and judges. According to the Constitution L a w , the Organic Law of the People's Court, and Judges L a w , "the people's courts in the People's Republic of China are the judicial organs of the State." "Judges are 137  He Weifang, Faguan dengji yu sifa gongzheng, (Grades of Judges and Judicial Impartiality), Faxue, (The Legal Science), Vol. 10, (1999): 8.  the judicial personnel who exercise the judicial authority of the State according to law.. ."139 Localism changes the concept of "local people's courts" to "courts of local government and the concept of "judges at local courts" to "judges of local government".  Secondly, it is also a hot bed of local protectionism. With the courts responsible to the local congress, the judges elected or appointed by the local congress, and the financial support coming from the local government, judges are inclined to show their loyalties to the local power and government. Thus, when hearing cases, the judges often strive to protect the interest of local government or enterprises, and this may result in theunfair judgments. 140  Finally, for the reasons above, courts and judges do not have the ability to resist the interference and pressure from the local government, which means that judges cannot be neutral and independent.  Another aspect of local protectionism that came up for discussion is the nonenforcement of central government commands by local officials. Therefore, the problem is still critical that whether laws and regulations passed at the national level were being routinely enforced at the local level i f officials at the local level felt these enactments ran contrary  138  Except the Supreme Court of China and the Specialized Courts, all the courts are set up in this model. See "the Constitution of China", arts. 124 and 128, supra note 17, and "the Organic Law of the People's Court of China", arts. 2, 17, 18, 23, and 26, supra note 49. "Constitution of China", arts.123, supra note 17, and "Organic Law of the People's Court of China", supra note 49, arts.l, "the Judges Law of PRC", supra note 20, art. 2. Jiao Hongchang, Fayuan de difanghuayu fayuan shuangguizhi de jianli (The Localism of the Courts and the Establishment of the Double-Track System of Courts), Guojia Xingzheng Xuevuan Xuebao (the Journal of the National Administrative College), Vol. 1 (2000): 70-73. 1 3 9  140  82  to local interests. In the experience of some there was often a wide divergence between central government policy and local government practice. Such inconsistency in applying the law makes it difficult for foreign businesspersons to operate.  141  c. The Lack of Professional Training of Judges Especially in Local Court  The law court system in China employs more than 150,000 persons. It was a gigantic task to develop this administrative structure, to formulate its operational procedures, and to recruit and train its personnel.  142  Being a judge in China was not regarded as a  professional career. The "Non-Professionization" of Judges mainly resulted from the following:  First of all, the qualification requirement is a non-professional one. Although the revised Judges Law in 2001 raised the requirement of educational background by requiring that all the candidates should at least possess a bachelor's degree, the qualification o f becoming a judge is still open to those who possess a degree of non-law majors. Moreover, according to the statistics, by the end of February 2003, among 220,000 judges in China, only 38% of them (82764) possessed a bachelors degree regardless whether it is a law major or not. 143 In the meanwhile, the Judges Law still leaves some exceptions for those who did not possess the qualifications prior to the implementation of this law, and to places where it is really difficult to apply the academic qualification. For  See generally McClain & Cheng supra note 125 Ibid. 143 Ibid.  141  142  83  example, forjudges in a number of least developed western provinces, the qualification and educational requirement for them are lower than that of other provinces. Whereas provinces other than those least developed provinces require candidates holding a bachelor's degree, those least developed provinces only require the candidate to be a graduate of a three-year college.  Secondly, it is resulted from the extension of the concept of "Judge". According to Article 2 of Judges Law, Judges are the "judicial personnel who exercise the judicial authority of the State according to law." However, there are many staff in the courts, such as the assistant judge, the staff in the enforcement division as well as some staff in the administrative or personnel divisions, who do not "exercise the judicial authority" and do not hear cases who have been appointed as judges, and actually these kind of people had held other types of jobs in the court administration such as bailiff, clerk, or driver before being promoted to the rank of j u d g e .  144  Actually, from my point of view, this is due to  some institutional problems. Since the establishment of the "People's Court System" after 1949, the people's courts were just considered as a government agency with judicial functions rather than a court defined in western countries. The title of judge as well as the grade of judge is regarded as an administrative ranking but not a professional post. It is also a reflection of the bureaucratization of the judiciary as we have discussed above. This kind of "judge" accounts for 2 5 % of the whole number of judges according to investigation. H5 If so, it would not be hard for us to understand the current situation.  1U1U.  145 Ibid.  84  Thirdly, it is resulted from the lack of the professional ensuring measures of judges. The concept of ensuring professionalism of judges by promoting stability of the post, favorable treatment, judicial immunity and professional ethics is still very new to China. In many countries, the post of judge is a tenured career. In Canada for example, the retirement age of federally-appointed judges is seventy-five, and they cannot be removed from the office except upon becoming incapacitated or disabled from the due execution o f the office of judge for the reasons set out in Section 65(2) (a) to (d) of Judges Act. 146. In China, the retirement age of judges is the same as the civil servants. That is, it is decided by the administrative grade of the judges, and the average retirement age is 60. The stability of the post is not strong enough. A judge can be removed from the post due to any of the following reasons, (1) having forfeited the nationality of the People's Republic of China; (2) having been transferred out of this court; (3) having no need to maintain his or her original post after a change of post; (4) being determined to be incompetent in the post through appraisal; (5) being unable to perform the functions and duties of a judge for a long period of time due to poor health; (6) having retired from the post; (7) having resigned the post, or having been dismissed; (8) being disqualified from continuing to hold the post because of violation of discipline, law or commission of a crime; or (9) other circumstances that call for removal of the post. 147  146 Section 65 (2) of the Judges Act of Canada reads as follows: (2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of: (a) age or infirmity,(b) having been guilty of misconduct,(c) having failed in the due execution of that office, or (d) having been placed, by his conduct or otherwise, in a position incompatible with the due execution of that office, the Council, in its report to the Minister under subsection (1), may recommend that the judge be removed from office.  85  The treatment o f the judges in Canada is quite favorable and much better than that o f the civil servants; it gives the judges a sense o f honor in their profession. In China, the treatment of judges is the same as for civil servants and is relatively poor. This is one o f the causes of judicial corruption and unfair judgments.  The ethical principles forjudges in China did not come into being until October 18, 2001. It w i l l take a long time for judges to learn and perform their profession in accordance with the principles set forth.  Lastly, it is resulted from the non-professional division o f the responsibility among the judges and staff. A s the concept o f "Judge" is too general and unclear, division o f responsibility between judges and staff is blurred. Judges often take over some responsibilities that should be exercised by the assistant judge or even the recording staff, such as taking the investigation and evidence to the site, sending the legal documents, etc. This overlapping o f responsibility reduces judicial efficiency to a great extent.  2. Analysis  A sound legal system is one where the rule o f law is the norm. Such a system treats the state as another actor, which has predictability and consistency o f laws, well-trained officials who exercise their powers impartially, and is characterized by effective and impartial enforcement o f the laws and execution of judicial decisions.  147  148  148  "Judges Law of PRC", supra note 20, art. 13. See Asian Development Bank supra note 8 at p.45. 86  The Rule of law as a fundamental value in modern society requires that disputes about the application of the law be settled as impartially as possible. It thus requires an impartial and accountable independent judiciary. Judicial independence is one of the mechanisms developed in rule-of-law countries to promote judicial impartiality, and the accountability thus is possible. Courts and judges therefore play a large and essential role in the operation of the rule of law. For this reason, the more professional the judiciary, the more independent the judicial practice. In this context, professionalizing the judiciary can be regarded as an approach to foster judicial independence and thus the rule of law. In China, emphasis on legal education background as a basic requirement of judicial qualification, and the establishment of the united judicial qualification exam, even i f the vesting the control of the exception of legal education requirement for the judicial qualification into the hands of the Supreme Court, all distinguish the judicial province from others as a special professional field.  Currently in China, great efforts are being made to establish judicial institutions that facilitate and thus ensure the rule o f law in social development, such as the establishment of the National United Judicial Qualification Examination mechanism and a professionalized judiciary. China is institutionalizing the judiciary by improving the ' appointment and selection of judges to ensure impartiality, accountability and judicial independence.  87  a. Culture and Value  China has experienced a long history of "feudalist" society and is deeply influenced by its culture and values. In such a society, there is a very severe hierarchical concept and administrative power is valued very much. Thus, China has been following a system that combined the Administration and Judiciary together, and the judiciary is regarded as an appendant to the administration or the extension of administrative power and becomes a kind of tool to realize administrative and political purposes. A n y dispute can be resolved by administrative power but in the name of the judiciary. Therefore, the independent status and value o f the judiciary has not been established in China. This has resulted in the above problems described above.  b. System Design  The Constitution of China stipulates that "The people's courts exercise judicial power independently, in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individual." 149  Although this article requires the independent exercise of judicial power by the courts, it excludes the independent exercise of judicial power by judges; moreover, the election and appointment of judges at local courts are decided by the local congress at all levels; the regional setup of the courts, the financial support from local governments and the  149  "Constitution of China", supra note 17, art. 126.  88  administrative grades o f judges are all reasons for localism, administrationalization, a lack of independence and professionalism in the judiciary.  c. Economic and Educational Factors  From the economic perspective, the relatively undeveloped economic level of China constrained financial support for the professionalization of judges and the establishment of relevant systems; poor treatment of the judges cannot attract outstanding persons to enter the judiciary; the uneven development of regional economies and the localism of financial support for the courts resulted in the difference in treatment among judges in different regions, and in turn led to uneven quality of judges in different regions, and reduced the average quality of judges, especially in the undeveloped regions.  On the other hand, the current legal education in colleges or universities focuses on legal theory rather than practical and professional training. Fresh graduates from the law schools of colleges or universities without legal experience cannot meet the demands on an adjudicator. For a long time, training in the courts provided basic legal training to those who had not had any legal training, for example, retired military staff. The professional training system in the courts was just established recently.  89  3. Proposed Solutions  a. The Evolution of Culture and Values  It is very important to emphasize the concept and the value of the Rule of Law among people, and especially among the top officials, to break down the traditional hierarchical and bureaucratic system, and to pave a road for the establishment of an open, impartial, just and independent judicial system in China.  b. The Reforms o f the Selection and Appointment System  b l . Qualification Control  Firstly, is to enhance the requirements of the legal education background. Applicants who do not possess a bachelor of laws (which should be the basic requirement of the educational background for a judge), are not qualified to be appointed a judge, even i f they have a degree in another non-law major. A l l the exceptions to the persons and places prescribed in paragraphs two and three in Judges Law of China should be eliminated.  Secondly, is to extend the requirement of the period for legal work and define "legal work" exactly. In the process of amending to the Judges L a w , it was suggested that the qualification of judges should focus on social experience and legal knowledge on the part of the applicants. Therefore, only those who have engaged in legal work for at least eight  90  years in the case o f graduates o f law major o f colleges or universities, or those who have engaged in legal work for at least five years in the case o f those who have a Master's Degree o f Law, or those who have engaged in the legal work for at least two years in the case o f those who have Doctor's Degree o f Law are qualified to be a judge, i so "Legal work" is a very vague and broad concept here and it would be better to define it clearly.  Thirdly, is to design the uniform National Judicial Examination as a pre-qualification and requirement. The national uniform judicial examination system, as a unified admission system for the legal profession and a basic system to protect judicial justice, is vital to reform o f the training and selection o f legal professionals, to professionalization, career unification and quality. It w i l l help to improve overall professional quality and standard of the legal profession including judges, prosecutors and lawyers, and provide an important system to secure high quality injudicial professionals and in the legal profession. The establishment and enforcement o f the national judicial examination system w i l l ensure that legal professionals, mainly composed of judges, prosecutors and lawyers possess the same level o f legal knowledge, legal quality and legal beliefs, necessary to maintain the authority and unification o f legal system. It has been said that, it w i l l play a role, which cannot be underestimated, in pushing forward Chinese judicial reform, and building a judicial system that is scientific, reasonable and suitable for the  Xian Ruo, Tansuo faguan zhidu de gaige: Faguan fa xiuding de zhuanjia yijian (Exploring the Reforms of the Judges' System: Opinions of Experts on the Draft Revised Judges Law), Renmin Fayuan Bao, (People's Courts Daily), March 29th, 2001: D3  91  real conditions of China. It therefore bears a very important practical and profound historic significance. 151  However, the combination of the Examination with the selection of judges still remains to be prescribed. In order to make good use of the result of the Examination and ensure the quality of the judges, it would be better to design the uniform National Judicial Examination as a preceding-qualification and requirement. That means, only those who already possess the qualifications as prescribed in Article 9 of the Judges L a w and have passed the Examination are qualified to be a judge. 152  b2. Selection Control  Firstly, is to establish the criteria for the selection of judges at all levels. It is necessary to set up criteria for the selection of judges at all levels. These criteria should take professional competence and experience, personal characteristics, social awareness and potential impediments to appointment into consideration.  Secondly, is to recruit judges from lawyers, judges from lower level courts as well as from law professors. During the preliminary review of the draft revised L a w on Judges at the 16th meeting of the Standing Committee of the Ninth National People's Congress in  See China Internet Information Center: "Establishment and Enforcement of the National Uniform Judicial Examination", available at: <http://www.china.org.cn/e-news/news02-02-7.htm>, (last accessed: September 20, 2003). 151  152  The defect of the old Examination for the Tentative Appointed Judges and Assistant Judges is, it is a post-requirement. Therefore, it is very difficult to deal with those who have already been recruited into the court but failed in the examination. 92  July 2000, some members suggested adding an article to the Law to stipulate that Lawyers and Law Educators who already have a certain amount o f work experience could be recruited as a judges. 153 This is a general practice in the western countries, including Canada. The implementation of the uniform national judicial examination system, as a unified admission system for the legal profession, not only makes legal professionals, mainly composed of judges, prosecutors and lawyers possess a uniform level for legal knowledge, legal quality and legal belief, but also provides opportunities of exchange among legal professions. Therefore, it offers the possibility o f selecting judges from lawyers.  However, under the present system in China, there are still some obstacles o f free selection; among them, the biggest comes from the bureaucratic system. A s we discussed above, judges are regarded as a kind o f civil servant or official rather than as a legal professional and they have their equivalent administrative grades/official ranks. Lawyers in China are however, professionals without grades. They cannot be converted to judges freely. Another realistic obstacle is that poor treatment o f the judges cannot attract outstanding lawyers. 154  Therefore, to professionalize the post of judges and abolish administrative grades and bureaucratic ranks of judges should become one of the most important tasks for judicial reform in China.  Judges Law of PRC, supra note 20, art. 11.  93  Thirdly, is to establish an independent institution for the selection of Judges. China should consider the establishment of independent institutions at the national level and provincial level in charge of the application and selection of judges. Members of these institutions could be composed of persons from the congress, judiciary, department of justice and other relevant organizations. In terms of the establishment of such selection committee, we may take for reference Canada's experience in establishing the judicial council to select judges.  c. The Professionalization of the Judges  The Professionalization o f the Judges should become one of the most important tasks for the judicial reform in China in the coming years. O n J u l y l 8 , 2002, the Supreme Court of China issued the "Opinions on Enhancement of the Professionalization of Judges" and set up a series of goals on the Professionalization of Judges in the near future. It mainly focused on the following aspects:  — to raise admission requirements to the profession; — to enhance a professional sense; — to emphasize ethical principles; — to increase professional skills; — to set up a professional image; — to strengthen financial security and security of tenure;  Qian Weiqing, Zhang Shiwei, Cong Ivshi zhong tiaoxuan faguan (Selecting Judges from Lawyers), Zhongguo Lvshi, (Chinese Lawyers), Vol. 11,(2001): 34. 154  94  — to reinforce a system of professional supervision. 155  It also put forward detailed measures to realize the above goals. They mainly include limiting the proportion of judges to total staff; reforming the selection system including the selection of judges from the lower courts; to try an assistant judges system; to establish a classification system among judges, assistant judges, law clerk and other staff; to continue the exchange of judges in different regions and positions; to enhance professional training. 156 Legal Opinions made by the Supreme People's Courts regarding specific judicial matters are regarded as judicial interpretations, by which the people's courts are forced to follow. Opinions made by the Supreme People's Court regarding the administrative matters are regarded as administrative directives that have general binding force to each level of the people's courts. Since the selection of judges is made within the people's court system (the appointments of the national and local people's congress are just procedures), therefore, whatever such opinion is judicial interpretation or administrative directives, it has binding force to the whole people's court system. For that reason, we may expect the situation be improved with the implementation of the opinion made by the Supreme People's Court.  In addition, following China's accession to the W T O , the President of the Supreme People's Court recently declared:  See "Zuigao Renmin Fayuan Guanyu Jiaqiang Faguan Duiwu Zhiyehua JIanshe de Ruogan Yijian", (Opinions on Enhancement of the Professionalization of Judges), Available at: <http://fadun.xiloo.com/wenzai/yefa/faguan002.htm>. (last accessed: September 20, 2003). Ibid. 156  95  "In the course of adjudication, People's Courts must be knowledgeable about both domestic law and WTO rules; they must both grasp the technique of application of international treaty through transformation into domestic law, and do a good job in making judicial interpretations in accordance with the provisions of domestic law; they must both ensure the correct implementation of international treaties in China, 157  and pay attention to upholding state judicial sovereignty and the dignity of law." In summary, China needs to address the shortage of trained lawyers and judges by  expanding legal education and training opportunities and increase the professionalism of lawyers by strengthening the role of professional b o d i e s .  158  d. Appointment Control and Financial Independence  The principal cause of local judicial protectionism appears to be the combination of the local government's direct interest in the financial well-being of local enterprises with its power over court personnel and finances. Consequently, local protectionism could be expected to be less pronounced where either of these factors is weakened or absent. Local judicial protectionism could also be expected to decline i f the dependence of courts on local government could be reduced. On the financial side, this could be done by funding courts from the center instead of from various levels of local government. On the personnel side, superior courts, and not local government, should have more say in the appointment of court officials.  159  See Xu Lai, Xiao Yang Zai Renmin Fayuan "Ru Shi" Hou Shenpan Gongzuo Zuotanhui Shang Tichu Zhuanbian Sifa Guannian Tigong Sifa Baozhang [Xiao Yang Suggests Transforming Judicial Concepts and Providing Judicial Protections at Roundtable Discussion on People's Court Adjudication Work After Accession to the WTO], Fazhi Ribao [Legal Daily], Nov. 21, 2001, at 1 (quoting Supreme People's Court President Xiao Yang), see also Clarke, supra note 4 at 102. See Asian Development Bank supra note 8 at p. 104. See generally Clarke, supra note 4. 159  96  In order to break down the localism of the judiciary and judges, it would be better to upgrade the election and appointment of judges. W e could require that all the judges in the Supreme Court of China and in the High Courts at a provincial level be elected or appointed by the National People's Congress, while all the judges in the intermediate courts and at a grassroots level should be elected or appointed by the Provincial Congress. Some scholars even suggest that the President, or the Chief Justice of the Supreme Court should be nominated by the President of the State, approved by the National People's Congress and appointed by the President of the State; all the other judges in the Supreme Court and all the judges in the High Courts at a provincial level should be nominated by the President of the Supreme Court, approved by the National People's Congress and appointed by the President of the State; all the judges in the intermediate courts and at grassroots level should be nominated by the Presidents of H i g h Courts under the authorization of the President of the Supreme Court, approved by the National People's Congress and appointed by the President of the State. 160  Whereas reformed should be carried out to reduce judicial localism by removing local authorities from decision making about judicial personnel, it is also important to ensure the financial independence of local courts. Judicial localism is a particularly serious problem that could be better managed by reducing local courts dependence on local governments.  161  97  Academics and others have proposed for years, for example, that judges in local courts should be appointed and salaried by the central government instead of the local government. So far, however, the central government has not been willing to expend the political and financial resources necessary to put this reform into practice.  162  Nevertheless, in order to break down the localism of the judiciary and judges, this reform have to be carried out by the central government to ensure financial support for the Supreme Court as well as the H i g h Court at the provincial level, and make the provincial government responsible for the financial support of the intermediate courts and grass root courts.  In addition to that, it is also necessary to establish an independent and favorable treatment system for the judges to ensure the judicial justice and provide the sense of honor in the profession.  See Clarke, supra note 4 at 97, 107. 98  IV. Conclusion  W i t h the development of the service sectors and the information technology, the range of W T O ' s multilateral negotiation topics is becoming much broader than ever. Consequently, the mandate of the W T O is also being expanded. In the middle of September 2003, the Fifth W T O Ministerial Conference was held in Cancun, M e x i c o . The meeting, which was to carry out the Doha Development Agenda, was not successful at all. This reflects the fact that, and it thus is directly challenging the institution of the member country's economic, political, and legal system, which are much more related to a nation's sovereignty. Therefore, in the progress of the negotiation, every member country w i l l be facing more and more domestic institutional obstacles. Evolved in a different manner from the legal regime of W T O , China's legal system and legal environment is quite different from that of the western countries, and it has not kept pace with its developments in the wider market economy. Revising and reforming China's current legal system is an urgent task. Taking its cue from liberalization of the legal environment in other developing countries, China needs to carry through and continue her major reforms to its legal system as well as the government system. O n the other hand, we have to see the achievement China has made in reforming her legal system and government system to adopt them to the W T O ' s legal regime.  I understand that there are possible implications brought by more liberal policies, China should not simply follow the liberalization trend for popular in other countries without developing its own strategy. This strategy should promote liberalization in a cautious  99  manner, taking account of current economic development conditions as well as W T O ' s rules. China should focus on the advantages that are unavailable elsewhere, such as a strong economic growth, a huge market and skilled but inexpensive labor. 163 China should allow all these advantages to come into play and try to get to a win-win approach.  A n effective regulatory regime should be transparent, institutionalized, and therefore predictable; and include an efficient system for resolving ambiguities and inconsistencies once they become apparent. The real problem in China's administrative law is not one of too much regulation, but of overlapping and sometimes contradictory jurisdictional claims by different bodies, with no effective system for resolving these c l a i m s .  164  A defining feature of the Chinese legal and administrative system is the lacking of transparency. Transparency and review requirements of the W T O present a formidable challenge to the Chinese legal system.  165  W T O ' s Principle of Transparency mainly  consists of two aspects, one is the access to information, and the other is regulatory accountability. While the former requires the publication of the laws and regulations, the latter requires judicial review to limit the administrative power.  See Liu Jianfeng: Chongjian zhongguo de waizi Ufa tixi (Rebuilding China's legislative system for foreign investment), Zhongguo Jingji Shibao. (China Economic Times), March 15 , 2001. See Asian Development Bank supra note 8 at p.52. See generally Ostry, supra note 10 at 12. th  164 165  100  Limiting the administrative power and strengthen the judicial power is an effective approach for regulatory accountability, judicial review is also helpful to prevent the government from the activities of making Internal Documents.  A sound legal system is one where the rule o f law is the norm. Such a system treats the state as just another actor, has predictability and consistency o f laws, has well-trained officials who exercise their powers impartially, and is characterized by effective and impartial enforcement o f the laws and execution o f Judicial decisions.  166  The Rule o f law as a fundamental value i n modern society requires that disputes about the application o f the law be settled as impartially as possible. It thus requires an impartial and accountable independent judiciary. Courts and judges therefore play a large and essential role in the operation o f the rule o f law. Judicial independence is one o f the mechanisms developed i n rule-of-law countries to promote judicial impartiality, and the accountability thus is possible. A s i n China in late 1970s and early 1980s, there were dramatic changes injudicial institutions. However, judicial independence is not only a state o f affairs, but also a practice. Judicial independence is accepted and respected in the Constitution o f China, and the country has set up a set o f institutions to practice and protect it. Currently in China, great efforts are being made to establish judicial institutions that facilitate and thus ensure the rule o f law i n social development, such as the establishment o f the national united judicial qualification examination mechanism and a professionalized judiciary. The current study shows that China is institutionalizing the  See Asian Development Bank supra note 8 at p.45.  101  judiciary by improving the appointment and selection of judges to ensure the impartiality, accountability and judicial independence.  However, the principal cause of local judicial protectionism appears to be the combination of the local government's direct interest in the financial well-being of local enterprises with its power over court personnel and finances. Consequently, local protectionism could be expected to be less pronounced where either of these factors is weakened or absent. Local judicial protectionism could also be expected to decline i f the dependence of courts on local government could be reduced. O n the financial side, this could be done by funding courts from the center instead of from various levels of local government. On the personnel side, superior courts, and not local government, should have more say in the appointment of court officials.  167  In this context, it indicates the  importance of the separation of powers, which is a way to ensure judicial independence as a path to the rule of law.  A s to the qualification of judges in China, emphasis on legal education background as a basic requirement of judicial qualification, and the establishment of the united judicial qualification exam, even i f the vesting the control of the exception of legal education requirement for the judicial qualification into the hands of the Supreme Court, all distinguish the judicial province from others as a special professional field. Apparently, the more professional the judiciary, the more independent the judicial practice.  See generally Asian Development Bank supra note 8.  102  Only i f judicial independence is guaranteed, is impartiality as well as accountability possible. Accountability and independence are not mutually exclusive, and most often we can have both.168 But there are situations in which the possibility of discipline most definitely does endanger the independence o f the judiciary. The most serious threat arises when sanctions are imposed based upon the content of a judge's decision.169 Thus disciplinary measures on the judiciary must be based upon the merits o f a judges' behavior rather than the merits o f a ruling. Only that way can judicial independence be guaranteed, and friction with accountability avoided. This is why China excludes those who have committed a crime or been dismissed from a public career from being considered as candidates forjudge. Hamilton argued that "The standard o f good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable o f the modern improvements in the practice o f government.. . A n d it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws", n o Basically, through ensuring tenure in office by disciplining the judiciary based only on bad behavior is the better way. If judges can only be removed from office because o f misbehavior, accountability w i l l be possible and judicial independence is guaranteed.  To institutionalize the judiciary in China and further to foster the judicial independence is the key. Only i f the judicial independence is guaranteed is the impartiality and accountability of the judiciary possible. It seems that the separation o f powers is the  Steven Lubet. "Judicial Discipline and Judicial Independence", Law and Contemporary Problems (1998): 66. Ibid. See Madison, Hamilton, and Jay, supra note 175, at p.436. 1 6 8  1 6 9  1 7 0  103  means rather the end of the rule of law, while judicial independence is the key to the rule of law.  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