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China Legal Reforms in the 1982 State Constitution
In late 1982 the National People's Congress adopted a new state
constitution, which was still in effect in mid-1987
(see Constitutional Framework
, ch. 10). The 1982 state Constitution
incorporates many provisions of the laws passed since 1978 and
distinguishes between the functions of the state and of the party,
mandating that "no organization or individual may enjoy the
privilege of being above the Constitution and the law" (Article 5).
This article has been interpreted by Chinese observers to include
party leaders. The state Constitution also delineates the
fundamental rights and duties of citizens, including protection
from defamation of character, illegal arrest or detention, and
unlawful search.
The National People's Congress and the local people's
congresses continued to enact legislation to meet the juridical and
other needs of their jurisdictions. The draft Law on Civil
Procedure, in force from October 1982, provides guidelines for
hearing civil cases. These cases constitute the majority of
lawsuits in China, and in the 1980s the number was growing rapidly.
In some of the lower courts almost all cases were civil.
A major problem in implementing new criminal and civil laws was
a critical lack of trained legal personnel. In August 1980 the
Standing Committee of the National People's Congress had sought to
remedy this shortage by passing the Provisional Act on Lawyers of
the People's Republic of China, which took effect on January 1,
1982. Before the law went into effect, there were only 1,300 legal
advisory offices and 4,800 lawyers in China. By mid-1983 the number
had increased to 2,300 legal advisory offices staffed by more than
12,000 lawyers (approximately 8,600 full time and 3,500 part time).
To meet the growing demand for lawyers, law institutes and
university law departments that had been closed during the Cultural
Revolution were reopened, and additional ones were established. By
mid-1985 approximately 3,000 lawyers per year were graduating from
the 5 legal institutes and 31 university law departments located
throughout the country.
The law also established legal advisory offices at every level
of government and established the duties, rights, and
qualifications of lawyers. Any Chinese citizen with the right to
vote who has passed a professional competency test after formal
training or after two to three years of experience in legal work
can qualify as a lawyer. Lawyers are expected to act as legal
advisers to government and nongovernment organizations and as both
public and private litigants in civil suits, to defend the accused
in criminal cases on request of the defendant or upon assignment of
the court, and to offer legal advice at a nominal charge to anyone
requesting it. The 1982 law guarantees that in carrying out these
duties lawyers will be permitted to meet and to correspond with
their clients without interference from any organization or
individual. The law seems to have had a positive effect. Although
there was a serious shortage of lawyers and great disparity in
professional competence among those practicing, China in the mid1980s was making progress in developing a corps of lawyers to meet
its legal needs.
Data as of July 1987
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