PRC Legal Qualification (HK) cheat sheet

The 'Ten Persistences' (十个坚持) summarize Xi Jinping Thought on the Rule of Law: uphold Party leadership over law-based governance, a people-centred approach, the socialist rule of law system with Chinese characteristics, law-based governance, constitution-based governance, rule of law in all fields, integrated rule of law construction, coordinated domestic and foreign-related rule of law, building a high-quality rule-of-law workforce, and strengthening Party leadership over law-based governance.

The 'Eleven Persistences' (十一个坚持) are the core tenets of Xi Jinping Thought on the Rule of Law, adopted at the Central Conference on Work Relating to the Rule of Law in November 2020; they include adherence to the path of socialist rule of law with Chinese characteristics and to integrated construction of the rule of law state, government and society.

The 'Four Comprehensives' (四个全面) strategic layout includes 'comprehensively advancing law-based governance' (全面依法治国); the other three are building a moderately prosperous society, deepening reform, and strict Party governance.

The 'Five-in-One' overall layout (五位一体) comprises economic, political, cultural, social, and ecological civilisation construction; rule of law serves all five.

The 'Four-Pronged Comprehensive Strategy' in the rule-of-law field is often expressed as 'scientific legislation, strict law enforcement, impartial justice, and law-abiding by all' (科学立法、严格执法、公正司法、全民守法).

The 'Three Persistences' (三个坚持) relating to the Constitution: uphold the Constitution as the fundamental law, uphold the authority of the Constitution, and uphold the implementation and supervision of the Constitution.

The 2020 Central Conference on Work Relating to the Rule of Law set the goal of building a 'rule of law China' by 2035, alongside basically realising socialist modernisation.

The 'Sixteen-Character' guideline for foreign-related rule of law (2023 Politburo study session) is not a fixed formula; instead, the key task is to improve foreign-related legal systems, enhance the rule-of-law capacity in foreign affairs, and safeguard national sovereignty, security and development interests.

The 'socialist rule of law system with Chinese characteristics' consists of five systems: a complete legal and regulatory system, an efficient law enforcement system, a rigorous judicial system, a powerful legal supervision system, and a sound Party regulations system.

The PRC Constitution was adopted on 4 December 1982; it has been amended five times: 1988, 1993, 1999, 2004, and 2018. National Constitution Day is 4 December.

The 2018 amendment added 'Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era' to the Preamble, established the Constitutional Oath system, added the supervision commission, and removed the two-term limit for the President and Vice-President.

The Constitution is the fundamental law of the state and has the highest legal effect; no law, administrative regulation, local regulation or rule may contravene it (Article 5).

The National People's Congress (NPC) is the highest organ of state power; it has the power to amend the Constitution (by a two-thirds majority of all deputies) and to enact and amend basic laws (Article 62).

The Standing Committee of the NPC interprets the Constitution and laws (Article 67); it may also partially supplement and amend laws enacted by the NPC during recess, provided the basic principles are not contravened.

The State Council is the highest organ of state administration; it enacts administrative regulations and may submit bills to the NPC and its Standing Committee (Articles 85, 89).

The Supreme People's Court is the highest judicial organ; it supervises the administration of justice by local courts and special courts (Article 132). The Supreme People's Procuratorate is the highest procuratorial organ (Article 137).

The 2018 amendment created the National Supervisory Commission as a state organ; it supervises all public officials exercising public power (Articles 123-127).

Fundamental rights include equality before the law (Article 33), freedom of speech, press, assembly, association, procession and demonstration (Article 35), freedom of religious belief (Article 36), and the right to work (Article 42).

Legal positivism (Austin, Hart) holds that law is a social fact identified by a rule of recognition, separate from morality; natural law theory (Aquinas, Fuller) holds that unjust law is not law or must meet an inner morality.

Kelsen's pure theory of law describes a hierarchy of norms (Stufenbau) in which each norm derives validity from a higher norm, culminating in the Grundnorm (basic norm).

Legal relations consist of three elements: subjects (natural and legal persons), content (rights and obligations), and object (things, acts, and non-material interests).

The sources of Chinese law in order of effect are: Constitution, laws, administrative regulations, local regulations, and rules; international treaties prevail over inconsistent domestic law except where China has made a reservation.

Legal liability has four forms: civil, administrative, criminal, and constitutional; the principle of legality (法无明文规定不为罪) governs criminal liability.

The rule of law (法治) differs from rule by law (以法治国) in that the former requires that the law bind the government itself and protect fundamental rights.

Legal interpretation methods include literal, systematic, teleological, and historical; in Chinese law, the Standing Committee of the NPC has the power of authoritative interpretation (立法解释).

The concept of 'socialist rule of law with Chinese characteristics' integrates Party leadership, the people's position as masters, and law-based governance.

The Civil Code of the PRC (民法典) was adopted on 28 May 2020 and took effect on 1 January 2021; it has seven parts: General Provisions, Property, Contracts, Personality Rights, Marriage and Family, Succession, and Tort Liability, plus Supplementary Provisions (1,260 articles).

Civil capacity: a natural person aged 18 or over has full capacity; a minor aged 8 or over has limited capacity; a minor under 8 has no capacity (Articles 17-20).

The limitation period for civil claims is generally three years from when the right holder knows or should have known of the infringement and the obligor (Article 188); the maximum period is 20 years from the date of infringement.

A civil juristic act is void if it violates mandatory provisions of law or administrative regulations, or is contrary to public order and good morals (Article 153); a contract concluded by a person with no capacity is void.

Property rights include ownership, usufructuary rights (right to contracted land management, right of residence, easement), and security interests (mortgage, pledge, lien) (Articles 114-117).

The principle of privity of contract is modified by Article 465: a contract is binding only on the parties, but a third party may be bound if the law so provides.

Tort liability requires: a tortious act, damage, causation, and fault (unless strict liability applies, e.g., product liability, environmental pollution, high-altitude falling objects) (Articles 1165-1166).

The marriage age is 22 for men and 20 for women (Article 1047); a marriage is void if it is bigamous, between close relatives, or if either party is under the statutory age (Article 1051).

Succession: statutory heirs in the first order are spouse, children, and parents; in the second order, siblings, grandparents, and maternal grandparents (Article 1127). A will may be notarised, holographic, printed, audio-recorded, or oral (with two witnesses).

The principle of legality (罪刑法定) is in Article 3: no act is a crime and no penalty may be imposed unless the law expressly so provides.

Criminal responsibility age: 16 for all crimes; 14-16 for eight serious crimes (intentional homicide, intentional injury causing serious injury or death, rape, robbery, drug trafficking, arson, explosion, placing dangerous substances); 12-14 for intentional homicide or intentional injury causing death or serious disability by especially cruel means, subject to Supreme People's Procuratorate approval (Article 17, as amended by Amendment XI).

Justification defences: self-defence (Article 20) and necessity (Article 21); excessive self-defence may reduce or exempt liability.

Attempt (Article 23): a crime is an attempt when the offender has begun to commit the crime but has not completed it for reasons outside his will; the penalty may be lighter or mitigated compared with a completed crime.

Joint crime (Article 25): two or more persons intentionally commit a crime together; the principal is punished according to the crime, an accessory (从犯) may be given a lighter or mitigated penalty or be exempted.

Penalties: principal penalties are public surveillance, criminal detention, fixed-term imprisonment, life imprisonment, and the death penalty; supplementary penalties include fines, deprivation of political rights, and confiscation of property (Article 33-34).

The death penalty is not applied to persons under 18 at the time of the crime or to women who are pregnant at the time of trial; persons aged 75 or over are not subject to the death penalty except for intentional homicide by especially cruel means (Article 49).

Amendment XI (2020) lowered the age of criminal responsibility to 12 in limited circumstances, raised the age for sexual assault of a minor, and criminalised the sexual abuse of minors by persons with special duties.

The Civil Procedure Law of the PRC was adopted in 1991 and has been amended in 2007, 2012, 2017, 2021, and 2023; the 2023 amendment (effective 1 January 2024) expanded foreign-related jurisdiction and service provisions.

Jurisdiction: a civil case is generally brought in the court of the defendant's domicile (Article 22); contract disputes may be brought in the court of the place of performance or the defendant's domicile (Article 24).

Exclusive jurisdiction (Article 34) applies to real estate (location), port operations (port), and inheritance (domicile of the deceased or main estate location).

The limitation period is three years under the Civil Code; the court may not apply the limitation period on its own motion (Article 193 of the Civil Code).

Evidence types (Article 66) include: documentary evidence, physical evidence, audiovisual materials, electronic data, witness testimony, statements of parties, expert opinions, and inspection records.

Burden of proof: the party asserting a fact bears the burden (Article 67); the court may investigate and collect evidence on its own motion in limited circumstances.

Summary procedure applies to simple cases; the 2021 amendment allows a single judge to try cases under the summary procedure (Article 40) and extended the period for filing an appeal.

The 2023 amendment introduced a 'foreign-related' chapter allowing Chinese courts to exercise jurisdiction where the defendant has no domicile in China but the dispute has an appropriate connection with China (Article 276).

The Criminal Procedure Law of the PRC was adopted in 1979 and has been amended in 1996, 2012, and 2018; the 2018 amendment introduced the plea leniency system (认罪认罚从宽) and the duty lawyer system.

Compulsory measures include: summons (传唤), detention (拘留), arrest (逮捕), residential surveillance, and release on bail (取保候审).

Detention: public security may detain a suspect for up to 37 days (30 days for investigation plus 7 days for procuratorate review) before arrest (Article 91).

Arrest requires approval by the procuratorate; the procuratorate must review within 7 days (Article 91).

The defence lawyer may meet the suspect after the first interrogation or from the day of compulsory measures; for state secret cases, approval is required (Article 39).

The principle of no conviction without judgment by a people's court (Article 12); the presumption of innocence is reflected in Article 12 and the prohibition of forced self-incrimination (Article 52).

The 2018 amendment added the 'plea leniency' system: if the suspect voluntarily confesses and accepts the penalty, the procuratorate may propose a lenient sentence and the court generally adopts it (Article 15, 201).

Trial: first instance is by a collegial panel of three or a single judge for minor cases; second instance is final. The death penalty requires review and approval by the Supreme People's Court (Article 246).

The Administrative Litigation Law (ALL) was adopted in 1989, amended in 2014 (effective 2015) and 2017; it allows citizens to sue administrative organs for unlawful administrative acts.

The scope of administrative litigation includes: administrative penalties, compulsory measures, administrative licences, administrative confirmation, administrative compensation, and failure to perform statutory duties (Article 12).

Excluded from administrative litigation: acts of state (national defence, foreign affairs), administrative regulations and rules, internal personnel decisions, and final administrative decisions as provided by law (Article 13).

Jurisdiction: the case is generally brought in the court of the place where the administrative organ is located or where the act occurred (Article 18); after reconsideration, the court of the reconsideration organ may also have jurisdiction.

The defendant is the administrative organ that made the act; if reconsideration maintains the original act, the original organ and the reconsideration organ are co-defendants (Article 26).

The burden of proof is on the defendant (the administrative organ) to prove the legality of the act and to provide the evidence and normative documents on which it is based (Article 34).

The limitation period for filing an administrative lawsuit is six months from the date the plaintiff knows or should have known of the act (Article 46); after reconsideration, 15 days from receipt of the reconsideration decision (Article 45).

Administrative reconsideration: the applicant may apply within 60 days of knowing the act (Article 20 of the Administrative Reconsideration Law); the reconsideration organ must decide within 60 days (extendable by 30 days).

The Company Law of the PRC was revised on 29 December 2023, effective 1 July 2024; it reduces the registered capital contribution period to five years for limited liability companies and introduces an accelerated maturity rule.

The new Company Law allows a company to have only one shareholder (a one-person LLC) and abolishes the minimum registered capital for LLCs (except where otherwise provided by law).

A limited liability company may have 1 to 50 shareholders; a joint stock company must have 2 to 200 promoters, of whom at least half must be domiciled in China (Articles 42, 92).

The board of supervisors may be replaced by an audit committee under the board of directors in LLCs and joint stock companies (Articles 69, 121 of the 2023 revision).

The Enterprise Bankruptcy Law (2006) provides for reorganisation, settlement, and bankruptcy liquidation; the administrator is appointed by the court (Article 22).

The Anti-Monopoly Law was amended in 2022; it prohibits monopoly agreements, abuse of dominant market position, and concentrations that eliminate or restrict competition (Articles 3, 17, 22, 26).

The Securities Law (2019 revision) introduced the registration-based IPO system and strengthened information disclosure and investor protection, including a securities investor protection fund.

The Labour Contract Law requires a written contract within one month of employment; failure to do so entitles the employee to double wages from the second month (Article 82).

Sources of international law under Article 38 of the ICJ Statute: international conventions, international custom, general principles of law, and judicial decisions and teachings as subsidiary means.

The PRC Law on the Application of Laws to Foreign-Related Civil Relations (2010) governs conflict of laws; party autonomy is allowed for contract disputes (Article 41), and the closest connection principle applies where no choice is made.

The 2023 Civil Procedure Law amendment expanded international jurisdiction; Article 276 allows jurisdiction where the defendant has no domicile in China but the dispute has an appropriate connection with China.

Recognition and enforcement of foreign judgments: China is a party to the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (signed 2019, not yet in force for China as of 2024).

The CISG (United Nations Convention on Contracts for the International Sale of Goods) applies to contracts between parties in different contracting states unless excluded; China is a party (with a reservation on Article 1(1)(b)).

The New York Convention (1958) on the Recognition and Enforcement of Foreign Arbitral Awards applies in China; China made the commercial reservation and reciprocity reservation.

WTO law: China acceded in 2001; the Dispute Settlement Understanding provides for consultations, panel, Appellate Body, and implementation; the Appellate Body has been non-functional since December 2019.

Incoterms 2020: FOB, CIF, and CFR are sea-freight terms; CIF requires the seller to insure the goods; FCA is the recommended term for containerised cargo.