Constitutional Transplant in the People's Republic of China: the Influence of the Soviet Model and Challenges in the Globalization Era

Author:J. Fan
Position:Sant'Anna School of Advanced Studies (Pisa, Italy)
Pages:50-99
ConSTITuTIonaL TRanSPLanT In ThE PEoPLE’S REPuBLIC of ChIna:
ThE InfLuEnCE of ThE SovIET modEL and ChaLLEngES
In ThE gLoBaLIzaTIon ERa
JIZENG FAN,
Sant’Anna School of Advanced Studies
(Pisa, Italy)
In this essay, I mainly focus on the constitutional transplantation in the People’s Republic of
China. Firstly, I briey present the Chinese constitution-making process from the Qing dynasty
to the Republic of China to show that both regimes had transplanted more or less liberal
constitutional principles, rules and institutions into their domestic constitutional document.
Then, because China and the Former Soviet Union shared the Marxism-Leninism, China’s
1954 Constitution borrowed almost all the constitutional articles to various extents from the
1936 Soviet constitutional code. Though few articles of the 1977 Soviet Constitution have
been imported into China’s present 1982 Constitution, China’s Constitution is still inuenced
by the Soviet model of constitution in many aspects related to the political and legal reform
in the post-Mao era. Globalization brings many challenges to present- day China’s Soviet-
featured constitutional system. With China’s accession to the WTO, a qualied judicial review
mechanism is required to be established by the other Member States. However, China seems
not to satisfy this obligation under the framework of the present legal system. In addition,
a constitutional review mechanism is still absent in China. Besides, the modern Chinese legal
system keeps silent on the domestic implementation of the UN international human rights
treaties in view of the fact that Chinese international law theory was molded by Soviet’s
which took highly concerned on protection of its state sovereignty. Chinese authorities, on
the other hand, take a vague attitude to universal human rights standards. They sometimes
prefer to observe them, while in other cases, they are not willing to follow them. Besides that,
the domestic eects of international law also depend on the outcomes of the struggle and
compromise between the reformist and Chinese Marxist conservative.
Keywords: constitutional transplant; the evolution of China’s constitutional system; the
envisioned China’s constitutional court; judicial review; China’s human rights legislation.
Recommended citation: Jizeng Fan, Constitutional Transplant in the People’s Republic
of China: The Inuence of the Soviet Model and Challenges in the Globalization Era, 2(1)
BRICS LJ (2015).
JIZENG FAN 51
Table of Contents
1. A Brief Introduction of Chinese Constitutional History Prior to the People’s
Republic of China
2. The Genealogical Relationship between the Soviet Constitution and
China’s Constitution
2.1. Close Relations between the 1954 PRC Constitution and the 1936 Soviet
Constitution
2.2. The 1977 Soviet Constitution and China’s 1982 Constitution: Sharing the
Commonality on the Route to Socialist Legality
3. Challenge to China’s Constitutionalist Regime in a Globalized Era
3.1. The Way to Build a Chinese Judicial and Constitutional Review Mechanism
3.1.1. Judicial Review in WTO Aairs within China’s Legal Order
3.1.2. Building up a Constitutional Review Model Compatible with China’s
Constitutional Framework?
3.2. Human Rights: UN Human Rights Treaty Impacts on China’s Human Rights
Legislation
4. Conclusion
1. A Brief Introduction of Chinese Constitutional History Prior
to the People’s Republic of China
The Chinese constitutionalist process began in the Qing dynasty. In 1898,
Qing’s Emperor Guangxu adopted the proposition presented by two inuential
intellectuals – Kang Youwei and Liang Qichao – who had proposed that the Qing
regime should immediately start the political reform replacing the absolutist
monarchic state with a constitutional state ruled by monarchy. However, the reform
lasted just over 100 days after being cracked down on by the powerful conservative
bureaucratic class who later detained the Emperor Guangxu in the Forbidden City
until his death. Few years later, a more radical voice echoed from the Chinese radical
intellectuals advocating the overthrow of the Qing’s monarchical regime and calling
for the founding a new Americanized republicanism.1 Under the long pressures
imposed by revolutionaries, as well as by those foreign governments who required
1 See T. Cheng, On the Rened Democratic Regime for Chinese Political Reform, in The Selected Works
of Xinhai Revolution in the Primary Ten Years 120 (S. Zhang & R. Wang, eds.) (2nd ed., 1963). Cheng
Tianhua argued that ‘the French writer Montesquieu has demonstrated to us the theory of separation
of the power and attributed good governance to republicanism. It was widely seen as an ideal model
by the state leaders and comparative politics scholars all of whom recognized the advantage of
republicanism.’ See also R. Zhou, Revolutionary Army, in The Compilation of Chinese Modern Histor y
1840–1949, at 649 (Y. Dai, ed.) (1997). Zhou Rong claimed that for the establishment of a new state,
China, should follow the United States constitutional model in all aspects.
BRICS LAW JOURNAL Volume II (2015) Issue 1 52
that the Qing regime should reform its old-fashioned cruel feudal legal system into
a modern civilized one, the conservative leader – the Empress Dowager – contritely
acknowledged the inabilit y of the old politics to meet the demands of the new
condition. In the decree issued in the name of Emperor Guangxu, the Dowager
claimed that ‘we should correct our shortcomings by adopting the best method
and systems obtained in foreign countries, basing our future conduct upon a wise
recognition of past errors.’2 China drafted its rst constitutional document in 1908 –
The Outline of Imperial-Made Constitution3 – where the Japanese Meiji constitutional
model was adopted by Chinese authorities4 inspired by the fact that Meiji Japan
was the rst oriental state that had successfully adopted the western model of
government structure. Though the Outline of the Constitution was widely regarded
as a quasi-constitutional document that mainly reected the monarchy’s willingness
to maintain absolutist monarchic rulings as well as to limit the constitutional rights
of subjects, some liberal constitutional principles can still be perceived there.5 For
instance, the constitutional provision on separation of powers between the legislature
and the judiciary was one of its impressive achievements: the national parliament has
the exclusive power of law-making, while the judiciary had the capacity to determine
cases according to laws approved by the members of parliament. Moreover, the
Outline incorporated a series of basic constitutional rights: the liberty of freedom of
speech, right to property, the right to a fair trial and the rights to liberty, etc.6
The eort to build a constitutionalist state ruled by monarchy, however, was in
vain because the conservative Manchus were not willing to reform the Qing’s regime
into a more liberal state to satisfy the needs of the Revolutionary Party and showed
pale resistance to the political inter ference imposed by western imperialist states.
The radical advocacy for terminating feudal monarchy ruling by force proposed by
the Revolutionary Party gradually became the dominant consensus among Chinese
liberals.7 The leader of the revolutionaries, Sun Yatsen, called for China to become
a state modeled on the United States after the end of the Qing dynasty.8 The Qing’s
regime came to an end in 1911 when Qing’s Former Military General Yuan Shikai
peacefully forced the last Emperor of the Qing Dynasty, Pu Yi, to abdicate.9 On January 1,
2 Payson J. Treat, Constitution Making in China, 2 J. Race Dev. 147, 148 (1911).
3 Treat, supra n. 2, at 151. ‘The Outline imperial-made constitution’ was not equal to a constitution with
binding power, but it was merely progressive guide outline for Qing’s governmental operation.
4 Z. Xie, The Legislative History of Republic of China 34 (2000); Y. Yang, The Summary of Chinese Political
System History 323–25 (2001).
5 Chongde Xu, The Constitutional History of People’s Republic of China 7 (Fujian Remin Press 2005).
6 Xu, supra n. 5, at 7.
7 Albert P. Blaustein, The Inuence of United States Constitution Abroad, 12 Okla. City U.L. Rev. 435, 440 (1987).
8 See Y. Sun, Talking in Paris (from November 21 to 23, 1911), in The Complete Works of Sun Yatsen 563
(Y. Sun, ed.) (1981).
9 Y. Ma, From Constitutional Monarchy to Democracy Republican System, 3 Anhui History Study 22, 27 (2011).

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