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The WTO’s Impact on China: A Battle of
Administrative Review Settings between
Internal and External Regulatory Frameworks
Nga Kit ‘Christy’ Tang*
Abstract: As a WTO member and one of the largest trading countries, China is subject to a
series of rule-of-law related international obligations. Yet, China emphasizes ‘Chinese characteristics’, ‘rule by law’, and recently, ‘socialist ethics’. What is the impact of WTO law on
China? This paper examines the WTO and Chinese regulatory frameworks in terms of administrative review settings. Through reviewing the roles of self, law, and government under Confucianism and Chinese Legalism, this study finds that China generally adopts a Confucian
internal regulatory framework based on self-regulation, which negates external control. The
WTO law, however, assumes a Chinese Legalist like external regulatory framework based on
control by rules in the form of checks and balances. The impact of WTO law on China, therefore, is about a battle between these internal and external frameworks at the opposite regulatory directions. On this battlefield, China seems not to be affected by the WTO yet.
Keywords: regulatory frameworks, administrative review, implementation of law, rule of
law, China, WTO
I. Introduction
The Chinese regulatory system is often considered as opaque – on the one hand,
China has a one-party system embracing communism and socialism; on the other hand,
China promotes a ‘rule of law system’ emphasizing Chinese characteristics.1 This system
is described as ‘the socialist rule of law’ or ‘rule by law’, which is also viewed as a ‘rule of
man’ system dominated by the will of authorities. However, what are these ‘Chinese
characteristics’? What role does Chinese tradition play in terms of regulatory settings?
In September 2014, Chinese President Xi Jinping cited Confucius as a ‘positive example for a modern nation’.2 In March 2015, President Xi laid down the ‘Four Comprehen-
* SJD (Doctor of Juridical Science), LLM, American University Washington College of Law; LLM (Distinction), City University of Hong Kong; LLB, University of London; MBA, University of Leicester; BA, The
Chinese University of Hong Kong. Tang is a registered attorney in the State of New York. The author
is deeply indebted to Professors Padideh Ala’i and Jeffrey S Lubbers at American University Washington College of Law for their insightful comments. I also wish to thank the anonymous reviewer for the
thoughtful suggestions. All errors are mine. Email: [email protected].
1 ‘Party Guarantees Rule of Law’ (China Daily, 12 February 2015) <http://www.chinadaily.com.cn/
opinion/2015-02/12/content_19560778.htm> accessed 28 February 2016.
2 Shengnan Zhao, ‘Xi Cites Confucius As Positive Example for Modern Nation’ (China Daily, 25 September 2014) <http://www.chinadaily.com.cn/china/2014-09/25/content_18656918.htm> accessed
28 February 2016.
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sives’ at the annual meetings of Chinese National People’s Congress (NPC) and the Chinese People’s Political Consultative Conference (CPPCC) requiring Chinese leaders to
‘build an ideal Confucian society’.3 This is not merely a slogan, the official media, China
Daily, emphasized.4 What is the relation between Confucianism and the regulatory
framework with ‘Chinese characteristics’?
Since 2001, China has been a member of the World Trade Organization (WTO) subject to international obligations under a series of trade agreements. More questions have
been raised, such as how would WTO obligations affect the Chinese regulatory system?
Would the Chinese system be consistent with those international agreements? If China
has a unique system, what are the main differences between the Chinese and WTO
regulatory frameworks?
This paper discusses these questions, in particular, the underlying Chinese and WTO
regulatory directions in terms of administrative review settings. Considering regulatory
systems from two perspectives: one involves regulatory obligations imposed on the people; another involves regulatory obligations imposed on agencies and government officials. This discussion focuses on the latter. How are Chinese agencies and government
officials regulated under WTO and Chinese laws in terms of administrative review settings?
This study argues that the Chinese administrative system is based on an internal
regulatory direction relating to Confucian self-regulation, morality, and assumption of
trust;5 the WTO, however, prescribes an external regulatory direction comparing to Chinese Legalist control, self-interest, and assumption of distrust.6 One of the main differences between the Chinese and WTO administrative review systems, therefore, is the
opposite directions of their regulatory frameworks: China adopts an internal framework
negating external reviews; WTO, however, requires a checks-and-balances framework
based on external reviews.
There is no sign that Modern China will change this internal framework any time
soon. Only the Communist Party has the power to self-regulate the Chinese government
through its internal political, judicial, and administrative systems.7 This regulatory framework negates any genuine independent authorities of external bodies.8 Such negation,
therefore, seems to be inconsistent with the WTO approach.
In addition, instead of Confucian inherent virtue, the Modern Chinese Confucian selfregulatory framework is based on a Chinese Legalist self-interest driven assumption.
This self-interest driven self-regulatory setting has led to a series of administrative crises, such as food safety, air pollution, and corruption. These crises have also directed to
the recent promotion of ‘the rule of virtue’ in China. Instead of the development towards
3 John Coulter, ‘“Four Comprehensives” Are Not Just Slogans’ (China Daily, 3 March 2015) <http://
www.chinadaily.com.cn/opinion/2015-03/03/content_19698859_2.htm> accessed 28 February
2016.
4 Ibid.
5 The concepts ‘self-regulation’, ‘morality’, and ‘trust’ refer to Confucian theory that will be discussed in
Section II.
6 The Chinese Legalism discussed in this paper refers to the philosophical theory found by Xunzi (289238 BC) and Han Fei (280?-233BC). This theory is different from the Legalism in the West.
7 Nga Kit Tang, ‘China v. China: The Paradox in Regulating Food and Product Safety’ (SJD dissertation,
American University 2014) <http://aladinrc.wrlc.org/handle/1961/16593> accessed 8 August 2016.
8 These authorities include political, judicial, and administrative institutions, as well as the media and
educational institutions at all levels in China.
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a rule of law system with separation of powers based on external control and checks and
balances, China seems to be striving to perfect an internal self-regulatory system by
establishing Confucian inherent virtue.
Hence, although China is promoting ‘rule of law’, the Chinese rule-of-law framework
is developed in a different path from the WTO’s rule-of-law expectation from the West.
This difference explains the implementation of law with Chinese characteristics regarding
the role of government officials, the challenges regarding the communication between
China and the West, as well as the ineffective Chinese regulatory system.
This paper has five sections. After this introductory section, the second section reviews Chinese philosophical theories, in particular, Confucianism and Han Fei’s Legalism
concerning the roles of self, law and government, which establish two opposite regulatory directions of internal and external approaches.9 The third section explores the WTO
external approach relating to checks and balances based on separation of powers under
the Western rule-of-law tradition. The fourth section examines the current Chinese internal approach of ‘rule by law’ negating the separation of powers but embracing selfregulatory structure.10 The fifth section concludes.
II. Internal and External Regulatory Directions
Regulatory directions involve a question as how people’s behavior should be regulated. In the Chinese tradition, different schools of thought provided various theories.
Among those schools, Confucianism, Daoism, and Buddhism are considered the main
streams in Chinese and even Asian cultures. Among these three philosophical theories,
Confucianism, in particular, was adopted and encouraged by most Chinese administrations in different dynasties for more than two thousand years.11 Chinese Legalism, however, was only explicitly adopted by two dynasties, or administrations – Qin dynasty
(221-206 BC) and Mao’s administration (1949-1976).
Although Modern China12 which was established in 1949, embraces European communism, socialism, and even capitalism to some extent,13 considered Confucianism an
obstacle of development, suppressed Confucian thought through a series of movements
such as the Cultural Revolution in the 1960s, and praised Chinese Legalism with the opposite assumption, the influence of Confucianism is apparent.14 In addition, Confucian9 This section is based on the discussion in my dissertation. Tang (n 7) ch 2.
10 In accordance with the Party, China does not, and will not, adopt the separation-of-powers’ framework. This view will be discussed in Section III. See also Baogang Guo, ‘New Trends in China’s Administrative Reform’ (China Center, 15 October 2014) <http://www.chinacenter.net/2014/china_currents/13-2/new-trends-in-chinas-administrative-reform/> accessed 8 August 2016.
11 The Confucianism in different dynasties, however, might not be consistent with the original
theory Confucius and Mencius established. Siguang Lao (⊆⿅⃱), Zhongguo Zhexueshi Volume I
ᷕ⚳⒚⬠⎚䫔ᶨ⌟ (History of Chinese Philosophy Volume I) (4th edn 1985). In addition, it is still unclear
if the Confucianism being promoted by Communist Modern China recently is consistent with the
original theory founded by Confucius and Mencius.
12 The term ‘Modern China’ refers to the People’s Republic of China (PRC) established in 1949. In general, ‘Modern China’ embracing Communism and Legalism after 1949 is in contrast with ‘Traditional
China’ embracing Confucianism before 1949.
13 Ronald Coase and Ning Wang, How China Became Capitalist (Palgrave Macmillan UK 2012).
14 Although Confucianism was adopted by most of the Chinese administrations for more than two thousand years, its theory was or has been openly suppressed by two administrations – Qin dynasty
(221 to 206 BC) and Modern China since 1949, in particular, under Chairman Mao Zedong’s leadership
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ism seems to be related to the hidden Chinese characteristics within the Chinese regulatory framework today, as well as the rule-of-law development.
A. Confucian Internal Regulatory Framework
Confucianism was found by Confucius (551-479 BC) and further developed by Mencius (372-289 BC). During the time of Confucius, China was not a united country but a
group of conflicting independent states. Confucius did not believe that winning civil wars
by killing was the way to establish leadership, but that the love for the people was. He
and his followers travelled to different states to promote his theories. However, his view
was not adopted by any state at the time.15 After this unsuccessful journey, Confucius
returned to his home state, Lu, and became a teacher. His thoughts were mainly recorded in a form of brief conversation with his followers in a classic book, The Analects,
which was one of the main study materials for civil servants before 1949.16
In Confucianism,17 the essence of humans is kindness (┬, shan).18 It does not mean
that everyone is kind and good, but that humans are able to see and tend to prefer kindness and goodness. Confucius emphasized benevolence (ṩ, ren) and justice (佑, yi).19 To
Confucius, benevolence is ‘to love our fellows’.20 ‘Love’ is to treat others as we treat
ourselves, to help others as we help ourselves, and not to impose on others anything we
do not want.21 As such, self is considered as the source of benevolence, as well as a
standard to measure rights and wrongs. This standard, therefore, is in humans, which is
internal.
Following Confucius, Mencius considered that we humans have kindness in our hearts.22
This kindness is viewed as a little light that can be cultivated by self-determination and
self-effort to pursue virtue.23 Thus, to Confucians, perfect virtue is about self-discipline,24
15
16
17
18
19
20
21
22
23
24
(1949-1976). Both the First Emperor of Qin dynasty and Chairman Mao Zedong embraced Legalism.
‘The Legalist School in the Pre-Qin Period’ (Chinese Civilisation Centre, 15 December 2015) <http://
www.english.cciv.cityu.edu.hk/China_5000/?chapter=dicts/Legalist> accessed 12 March 2016;
‘Legalism in Chinese Philosophy’ (Stanford Encyclopedia of Philosophy, 15 December 2015) <http://
plato.stanford.edu/entries/chinese-legalism/> accessed 12 March 2016.
Confucius, The Analects (Lun Yü): Translated with an Introduction By D.C. Lau (Penguin Classics
1970) 10.
Shihkuan Hsu and Yuh-Yin Wu (eds), Education as Cultivation in Chinese Culture (Springer Singapore
2015) 235.
The Confucianism this paper concerns refers to the original Confucianism found by Confucius and
perfected by Mencius.
Shan is also translated as goodness.
‘Benevolence’ (ren) refers to the love for others. ‘Justice’ (yi) refers to ‘righteousness’, ‘appropriate’,
and ‘reasonableness’. Siguang Lao (n 11) 42-43.
James Legge, The Chinese Classics: Volume I: Confucian Analects (E-book 2015) <https://itunes.
apple.com/kh/book/chinese-classics-volume-1/id955140709?mt=11> accessed 10 March 2016 (In
the words of Confucius, ‘love your fellow men’.) 89.
ibid 41. Confucius stated, ‘Now the man of perfect virtue, wishing to be established himself, seeks also
to establish others; wishing to be enlarged himself, he seeks also to enlarge others’.
Mencius’ classical metaphor is that when people see an infant is about to fall into a well, everyone
wishes to prevent the fall. To Mencius, the wish to prevent the fall is not caused by self-interest, but
compassion, which represents the kindness in humans. To Mencius, humans have four instinctual feelings that reflect the heart of inherent kindness. Those feelings are (1) compassion, (2) shame,
(3) courtesy and modesty, and (4) right and wrong. Mencius (DC Lau tr, 3rd edn, first published 1979,
Chinese UP 2003) 72-73.
Siguang Lao (n 11) 96.
ibid 81. Confucius stated, ‘To subdue one’s self and return to propriety’.
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self-learning,25 and self-cultivation.26 Through self-effort, anyone can be benevolent and
righteous. As such, people are primarily responsible to regulate their own conduct.
The obstacle to pursuing virtue is self-interest. Confucius considered those people
who are able to put aside their self-interest and conduct virtue to be ‘gentlemen’ (⏃⫸,
junzi);27 those who put aside virtue to pursue self-interest to be ‘small people’ (⮷Ṣ, xiao
ren).28 Humans tend to prefer to be and follow the conduct of ‘gentlemen’. Confucius,
therefore, suggested that only ‘gentlemen’, who are able to conduct virtue by self-regulation, are qualified to be leaders.29
This view that kindness and goodness are in humans seems to be comparable to the
underlying rationale for the jury system, which is that lay people have an inherent ability to see and tend to prefer justice and reasonableness.30 Under the jury system, justice
and reasonableness seem not to be about education or legal knowledge. In addition, the
jury’s judgment about right and wrong does not require any explanation.
In addition, the Confucian view considering self-interest to be an obstacle to virtuous
conduct is comparable to the conflict-of-interest principle in the West that applies to judges,
lawyers, jurors, witnesses, and corporation directors, among others. Under this principle,
self-interest is assumed as a potential threat to fairness, justice, and reasonableness.
Following the view that virtue is a human characteristic, Confucians consider that the
most effective means to regulate people is the internal force coming from the self.31 As
such, Confucius did not consider law, written rules with punishments that rely on external forces of others, as an effective means to regulate people but instead felt that it leads
to more litigation and disputes that make for a ‘lack of shame’ among people, which
destroys the harmonious order of society.32
Based on self-cultivation,33 Confucianism promotes virtuous administration. To Confucius, the main obligation of the government is to establish the trust of people,34 which
25 Legge (n 20) 107. Confucius stated, ‘Men learned with a view to their own improvement’.
26 ibid 112. Confucius stated, ‘The cultivation of himself in reverential carefulness’ and ‘he cultivates
himself as to give rest to others’.
27 In accordance with Confucius, the term ⏃⫸ (jun zi) refers to the people who are able to demonstrate
exemplary conduct of virtue. In English, junzi is translated as ‘gentlemen’, ‘ruler’s son’, and ‘noble’s
son’. The translations of ‘ruler’s son’ and ‘noble’s son’ seem not to be reflecting the original meaning
of Confucius. Junzi (⏃⫸, gentlemen), Chinese Encyclopedia Online (16 December 2015) <http://ap6.
pccu.edu.tw/Encyclopedia/data.asp?id=540> accessed 5 March 2016.
28 The term ‘small people’ is also translated as ‘little person’ and ‘petty people’, which refer to the people
who act solely in accordance with self-interest.
29 Siguang Lao (n 11) ch 2.
30 Tang (n 7).
31 ibid 26-30.To Confucius, humans are the primary source to determine, control, and cultivate our own
conduct through learning and thinking.
32 To Confucianism, the term ‘lack of shame’ seems to be referring to the litigation process that emphasizes argumentative tactics of words and procedures to avoid punishment and maximize self-interest,
rather than finding the truth and pursuing justice. Legge (n 20) 86. (‘What is necessary […] is to cause
the people to have no litigations’.) This view discouraging litigation contributed to the Chinese tradition
that embraces internal mediation and private settlements.
33 To Confucians, self-cultivation involves learning, courageousness, and not complaining about others.
Learning is about realizing and admitting errors, questioning and thinking, as well as taking action
accordingly. Admitting errors is viewed to be courageous, which is a form of righteousness. Legge
(n 20) 25, 31, 147. This view about admitting errors may be related to the ‘apologizing culture’ in Asia,
which may not be considered as wise, due to legal responsibilities, in the rule of law tradition.
34 Legge (n 20) 84. (‘The requisites of governments are the […] sufficiency of food, sufficiency of military
equipment, and the confidence of the people in their ruler’.)
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is the foundation of ruling power. Mencius stated that losing people’s trust is equivalent
to losing authority.35 Trust, therefore, is the basis of governing authority.36
As the basis of governing authority, trust is established by benevolent and righteous
conduct, which should be consistent with the words and positions of rulers.37 To Confucians, leadership is based on rulers’ exemplary conduct. If rulers’ conduct is virtuous,
trust and a harmonious society can be established.38 If rulers do not act benevolently and
reasonably, rulers lose their leading authority. In addition, officials should resign if they
are ordered to do something against virtue.39 Rulers are replaceable.
In sum, rather than relying on fixed written rules, the Confucian regulatory framework relies on unwritten virtue in humans. This framework considers self-cultivation,
self-regulation, and self-restriction based on inherent virtue, which is also referred to as
morality or ethics, as the most effective means to establish a harmonious society. This
governing framework relying on the goodness in humans, therefore, creates a regulatory direction from internal force, which is in contrast to Chinese Legalism.40
B. Chinese Legalist External Regulatory Framework
To Chinese Legalism, Confucian regulatory theory based on inherent virtue is naive
and unrealistic.41 To Legalists, the essence of humans is evil and selfishness.42 Being a
distinct theory from the Legalism in the West, Chinese Legalism was found by Xunzi
(289-238 BC), 43 and perfected by Han Fei (280?-233 BC).44 Xunzi, also known as Master
Xun, stated, ‘Man’s nature is evil […]. He is born with feelings of envy and hates’.45 To
Xunzi, humans’ behavior is driven by self-interest.46 Most people do not have the ability
to realize and cultivate virtue. Han Fei further developed this view by considering humans do not have particular essence of virtue or evil, but are driven by benefit and harm
(⇑⭛, li hai).47
Since humans are driven by self-interest to pursue benefit and avoid harm, a peaceful social order relying on internal virtue is not feasible. To Han Fei, self-cultivation and
learning based on benevolence and justice are superfluous.48 Virtue and wisdom are not
35 Mencius (n 22) 159.
36 This view seems to be comparable to the underlying assumption of democratic elections – voters may
vote to the candidate they trust.
37 To Confucius, rulers should act in accordance with their roles and positions related to the responsibilities of their titles. Legge (n 20) 87, 91. Benevolence refers to the love to the people; righteousness
refers to justice, appropriateness, and reasonableness of governing action.
38 Siguang Lao (n 11) 41.
39 Legge (n 20) 77, 123.
40 The Legalism and Legalists mentioned in this paper refers to Chinese Legalism established by Xunzi
and Han Fei (Han Feizi), not Legalism in the West.
41 Siguang Lao (n 11) 308.
42 ibid 305.
43 Xunzi (298-238 BC), also known as Master Xun, Xung Qing, and Xun Kuang, was a teacher of Han Fei.
ibid 304. Although Xunzi is commonly considered as a Confucian, his theory is at the opposite direction
of Confucianism, which established Legalism. Siguang Lao (n 11) 278.
44 Han Fei (280?-233 BC), also known as Han Feizi, or Master Han Fei, was a prince of the royal family
of a small state of Han. He was a student of Xunzi and further developed his views to perfect Legalism.
Han Feizi, Basic Writings (Burton Watson tr, Columbia UP 2003) 11-14 (E-book).
45 Xunzi, Basic Writings (Burton Watson tr, Columbia UP 2003) 161.
46 ibid 305.
47 ibid.
48 Han Feizi (n 44) 146.
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teachable.49 Education is futile.50 Human relationships are based on profit.51 People
should not trust anyone, because trust leads to control and threat.52 As such, rights and
wrongs should depend on external rewards and punishments established by rulers.53
In order to ensure a ‘tough, alert, and well-disciplined population’,54 people have to
be shaped, controlled, and governed by law (㱽, fa). The Chinese word ‘fa’ (㱽) includes
external means such as laws, orders, and methodologies.55 To Han Fei, the basis of law
codes is the interests of the ruling class, not moral values.56 The law shall be clearly defined to honour and protect superiors.57 The aim of law is to strengthen the central government’s effective control over the land and the people.58
Under Chinese Legalism, law includes three essential elements: (1) punishments; (2)
publication; and (3) centralization and uniformity. Han Fei suggested harsh laws with
strict penalties.59 Law is a means for ‘prohibiting error and ruling out selfish motives;
strict penalties are the means of enforcing orders and disciplining inferiors’.60 Officials are
considered as tigers who may assassinate their master.61 Law with punishments can
make the greatest tigers tremble.62 Han Fei also suggested that rulers hire officials who
understand the law to force people to follow the rules.63 The authority of law enforcement
should be held by the ruling class, not anyone else.64
Terror can make people behave.65 To Han Fei, fear is a tool to end the pursuit of private gains, wipe out wantonness, and prevent lies and deception.66 By making the law
and punishments public, fear can be instilled in officials and people far away.67 Thus,
publication is an essential tool to extend the government’s rule.68
Under Chinese Legalism, law shall also provide unifying standards.69 In order to
maintain stable social order, people shall act in a unifying way to minimize differences
and conflicts.70 Han Fei considered that the best law is uniform and inflexible to best sup49 ibid.
50 ibid 22. To Han Fei, ‘all attempts to educate and uplift the common people are futile, and charity is a
positive sin because it robs the industrious to pamper prodigals and idlers. The ruler, to succeed, must
eschew all impulses toward mercy and affection and be guided solely by enlightened self-interest’.
51 ibid. Human relationships include the relationships between rulers and ministers, husbands and wives,
parents and children.
52 ibid; Xunzi (n 45) 85 (‘It is hazardous for the ruler of men to trust others, for he who trusts other will
be controlled by others. Ministers have no bonds of flesh and blood which tie them to their ruler; it is
only the force of circumstance which compels them to serve him’.)
53 Han Feizi (n 44) 22.
54 ibid 18.
55 Siguang Lao (n 11) 304.
56 Han Feizi (n 44) 17.
57 ibid 33.
58 ibid 17-18.
59 ibid 18.
60 ibid 38-39.
61 ibid 51-52.
62 ibid 52.
63 ibid 33.
64 ibid 39.
65 ibid 120.
66 ibid 33, 40.
67 ibid 39 (‘Men did not dare [to] say anything different […] though courtiers in the palace, [people] did
not dare to conceal good or gloss over evil’).
68 ibid.
69 ibid 39.
70 ibid 126.
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press different ideas, so that people can be ‘kept in a state of ignorance and awe’.71 The
thoughts of officials and people shall also be unified, ‘guided and kept in line by laws’ to
achieve the interest of rulers.72 Rulers, however, shall be guided by a different set of rules
to wield authority and control people.73
Consistent with the roles of self and law, Chinese Legalist governments emphasize
rewards and punishments, named as ‘two handles’, in accordance with the will of rulers.74
Rulers are the highest and only authority to direct and maintain a unified order. In addition, the government should be centralized.75 Intellectuals with independent thoughts
are considered as a threat to a stable society.76
Considering Confucianism and Legalism in terms of regulatory frameworks, Confucians established an internal regulatory direction relying on inherent force of self and
considered external force based on written rules as ineffective. Chinese Legalists, however, established an external regulatory direction relying on legal and administrative
forces and considered internal force based on unwritten virtue as unrealistic. These
clashing views based on internal and external regulatory frameworks are also apparent
in the WTO’s and Modern Chinese laws nowadays, in terms of administrative and regulatory review settings.
III. The WTO’s External Regulatory Settings
The Chinese regulatory framework is governed by two levels of law. At the international level, as a WTO member, China is obliged to comply with the regulatory setting
required by WTO law. At the national level, the Chinese regulatory system is established
by domestic law. Although these two levels of laws may use similar words on paper in
terms of substances, the international and national frameworks do not adopt the same
regulatory directions in terms of forms and procedures.
One of the differences between the WTO and Chinese regulatory directions concerns
their respective administrative review settings. Chinese administration review adopts,
maybe unconsciously, the Confucian internal approach relying on self-regulation; however, WTO law requires Members to establish the administrative review setting emphasizing external forces comparable to the Chinese Legalist approach.77
This section examines those WTO external characteristics, which begin with the requirements of impartial reviews by independent bodies, then the accompanying transparency by publication of law, uniformity and centralization of administration, and the
71 ibid 18.
72 ibid 18-19; Siguang Lao (n 11) 308. Officials have to be governed and limited by laws. Han Feizi
(n 44) 38 (‘They are permitted to make no move that is not in accord with law’.)
73 Han Feizi (n 44) 19.
74 ibid 41; Siguang Lao (n 11) 187.
75 Siguang Lao (n 11) 290, 313; Han Feizi (n 44) 39, 48, 119 (‘When the people use wisdom and wile,
they bring grave danger to themselves; when the ruler uses them [wisdom and wile], his state faces
peril and destruction’.)
76 Han Feizi (n 44) 48, 117.
77 The Legalist approach this paper discusses refers to the Chinese Legalist theory established by Xunzi
and Han Fei, not Legalism in the West.
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core values of the rule of law that may be rooted in the hidden distrust of humans of the
Western tradition.78
A. Independent and Impartial Reviews
The WTO law refers to a series of free trade agreements, which are negotiated and
signed by Members. These agreements are considered to be trade rules of liberalization,
which laid down broad principles and special requirements of specific sectors and issues.79 Among those agreements, this section, in particular, focuses on the General
Agreement on Tariffs and Trade 1994 (GATT) and the Protocol on the Accession of the
People’s Republic of China (the China’s Protocol of Accession).
The GATT provides fundamental principles such as the Most-Favored-Nation (MFN),
national treatment, and transparency that embrace freer trade, non-discrimination, and
rule of law.80 The China’s Protocol of Accession particularly refers to China’s commitments as a WTO Member. These agreements impose international obligations of different
aspects of the Chinese regulatory system.
Concerning regulatory approaches, different provisions in the GATT and China’s Protocol of Accession require independent administrative review.81 For instance, Article X of
the GATT states that each Member 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 custom matters’.82
In addition, ‘such tribunals or procedures shall be independent of agencies entrusted
with administrative enforcement and their decisions shall be implemented by […] such
agency unless an appeal is lodged with a court or tribunal of superior jurisdiction’.83 The
central administration of such agency may obtain a review of another proceeding only if
‘there is good cause to believe that the decision is inconsistent with established principles
of law or the actual facts’.84 As such, the implementation of trade regulations shall be
reviewed by independent institutions. Moreover, the central administration of enforcement agencies has a right to appeal but not the power to make final decisions.
The China’s Protocol of Accession follows the GATT. China is obliged to ‘establish, or
designate, and maintain tribunals, contact points and procedures for the prompt review
of all administrative actions’.85 In addition, such tribunals shall be ‘impartial and inde-
78 The different regulative approaches between the Chinese and WTO laws, however, do not necessarily
mean that the Chinese regulatory system is based on Confucian belief of inherent virtue or morality,
or that the WTO regulatory system completely shares the Chinese Legalist belief.
79 ‘Understanding the WTO’ (WTO, 15 February 2016) <https://www.wto.org/english/thewto_e/
whatis_e/tif_e/tif_e.htm> accessed 10 March 2016.
80 ‘A History of Law and Lawyers in the GATT/WTO – The Development of the Rule of Law in the Multilateral Trading System’ (WTO, 15 February 2016) <https://www.wto.org/english/thewto_e/20y_e/
historylawandlaweyr20y_e.htm> accessed 10 March 2016; ‘Understanding the WTO-Settling Disputes: A Unique Contribution’ (WTO, 15 February 2016) <https://www.wto.org/english/thewto_e/
whatis_e/tif_e/disp1_e.htm> accessed 10 March 2016.
81 Jerome Cohen, ‘China’s Troubled Path to WTO’ (2001) 20 IFLR 71.
82 General Agreement on Tariffs and Trade (30 October 1947) 55 UNTS 187, provisionally entered into
force on 1 January 1948 (superceded by GATT 1994) art X(3)(b).
83 ibid.
84 ibid.
85 Protocol on the Accession of the People’s Republic of China (10 November 2001) WT/L/432 <https://
www.wto.org/english/thewto_e/acc_e/completeacc_e.htm> para 2(D)(1).
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pendent of the agency entrusted with administrative enforcement and shall not have any
substantial interest in the outcome of the matter’.86 In addition, review procedures provide the opportunity for appeal by affected individuals and enterprises.87 Appellants have
the right to appeal to a judicial body, as well as a notice of decision, with the reasons for
such decision in writing.88
The WTO law does not explicitly require the rule of law system but rather impartial
and independent administrative and judicial review mechanisms, as well as decision notices with reasoning consistent with the principles of law. These independent and impartial review requirements seem to be based on checks and balances within a separationof-powers framework under the rule-of-law principle, which embraces the supremacy of
law rather than individuals or political parties to govern.89
This view is somewhat comparable to Chinese Legalism. Although Chinese Legalists
consider the law is merely a tool of governance to pursue rulers’ interest while the rule
of law is to pursue people’s interest, both Chinese Legalist and rule-of-law frameworks
share the distrust of humans. Based on this distrust, people and government officials
have to be bound, limited, and controlled by the external regulatory structure.
B. Law Publication and Transparency
Another external means suggested by Chinese Legalism is law publication, which is
also emphasized by WTO law under the principle of transparency.90 This principle requires
publications and notifications of trade measures in a timely manner in the various WTO
official languages.91 In addition, the scope of the measures that need to be published is
quite broad. Article X of the GATT 1994 provides:
‘Laws, regulations, judicial decisions and administrative rulings of general application, made effective by any contracting party, pertaining to the classification or the
valuation of the products for customs purpose, or to rates of [duties], taxes or other
charges, or to requirements, restrictions or prohibitions on imports or exports or on
the transfer of payments therefor, or affecting their sale, distribution, transportation,
insurance, warehousing, inspection, exhibition, processing, mixing or other use, shall
be published promptly in such a manner as to enable governments and traders to
become acquainted with them.’92
86 ibid; see also Esther Lam, China and the WTO: A Long March towards the Rule of Law (Wolters
Kluwer 2009) 95.
87 Protocol on the Accession of the People’s Republic of China (n 85) para 2(D)(2).
88 ibid.
89 Aristotle, Politics: A Treatise on Government (William Ellis tr, first published 1912, London JM Dent &
Sons Ltd; New York EP Dutton & Co 1928) <https://itunes.apple.com/mo/book/politics-treatise-ongovernment/id395545349?l=zh&mt=11> (E-book 2009) 186 (‘[I]t is more proper that law should
govern than any one of the citizens, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws, for the supreme power must be placed somewhere’); See also Lam (n 86) 109.
90 Padideh Ala’i and Robert G Vaughn (authors and eds), Research Handbook on Transparency Paperback (Edward Elgar 2014) 369-78.
91 The official languages of the WTO are English, French, and Spanish.
92 GATT (n 82) Art X(1).
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Trade policy agreements must also be published: ‘Agreements affecting international
trade policy which are in force between the government or a government agency of any
contracting party and the government or governmental agency of any other contracting
party shall also be published’.93
Under the China’s Protocol of Accession, China has additional, more specific, publishing obligations.94 For instance, China shall establish an official journal, which publishes
‘all laws, regulations and other measures pertaining to or affecting trade in goods, services, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)95 or
the control of foreign exchange’.96 In addition, this official journal shall be published on a
regular basis to provide product-by-product details that include all relevant organizations, procedures, and criteria for obtaining import and export licenses and other approvals,
all products that are subject to tendering requirements, all goods and technologies that
are restricted, and any changes of those restrictions.97
In accordance with the WTO, the rationale of the principle of transparency is to allow
individuals and companies to know ‘as much as possible about the conditions of trade’.98
In addition, this principle is achieved in two ways: (1) governments have to inform the
WTO of ‘specific measures, policies, and laws through regular notification’, and (2) the
WTO ‘conducts regular reviews of individual countries’ trade policies.99 These reviews,
namely the trade policy reviews, are conducted by the Trade Policy Review Body (TPRB),
which is ‘open to all WTO Members’ and is described as ‘the WTO General Council in another guise’.100
Concerning the objectives of TPRB, they are (1) to increase the ‘transparency and
understanding of countries’ trade policies and practices, through regular monitoring’,
(2) to ‘improve the quality of public and intergovernmental debate on the issues’, and
(3) to ‘enable a multilateral assessment of the effects of policies on the world trading
system’.101 WTO transparency, in particular law and policy publication, therefore, functions
as a means for better monitoring and assessment by the TPRB of the operations of the WTO.
This regulatory approach is external. Just as Chinese Legalists suggest law publication as a means for better control by rulers, WTO transparency is also a means for better
control, or in WTO’s term, ‘monitoring’ at two levels. One is at the international level.
Members’ laws and policies are monitored, reviewed, and assessed by an external body,
the WTO. Another is at the national level. Law publication helps achieve better compliance by individuals and corporations. Through transparency, individuals, corporations,
and governments know the laws and policies better, and their conduct is, at the same
93
ibid (Article X provides some exceptions. These exceptions include ‘confidential information which
would impede law enforcement or otherwise be contrary to the public interest, or would prejudice
the legitimate commercial interests of particular enterprises, public or private’.).
94 Lam (n 86) 100.
95 Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994) 1869 UNTS 299;
33 ILM 1197 (1994).
96 Protocol on the Accession of the People’s Republic of China (n 85) Art 2(C)(2).
97 ibid para 8(a)-(d).
98 ‘Understanding the WTO: The Agreements – Trade Policy Reviews: Ensuring Transparency’ (WTO,
17 December 2015) <https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm11_e.htm>
accessed 10 March 2016.
99 Ibid.
100 ‘Trade Policy Reviews: Organization – The Trade Policy Review Body (TPRB)’ (WTO, 17 December
2015) <https://www.wto.org/english/tratop_e/tpr_e/tprbdy_e.htm> accessed 10 March 2016.
101 WTO Transparency (n 98) 103.
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time, being better monitored by others. Transparency, therefore, functions as an external means, comparable to what Chinese Legalists suggested.
C. Uniform Administration
The Chinese Legalist external regulatory framework emphasizes uniformity.102 In the
WTO context, uniformity is mentioned by both the GATT and China’s Protocol of Accession. The GATT requires uniformity particularly in valuation for customs purposes,103
custom action and procedures,104 as well as publication and administration of trade regulations.105 Under these requirements, Members shall establish a uniform calculation
method of merchandise prices,106 uniform procedures for tariff classification,107 and a
‘uniform, impartial[,] and reasonable’ manner to administer ‘all its laws, regulations,
decisions and rulings’.108
Similarly, the China’s Protocol of Accession requires uniform administration.109 The
requirement emphasizes the ‘impartial and reasonable manner’ in application and administration of all laws, regulations, and rules at the central and local levels ‘pertaining
to or affecting trade in goods, services, and intellectual property rights’, as well as all
customs and other areas where tariffs, taxes, and regulations are established.110 Uniformity requirements, therefore, cover both the substances and procedures of Chinese
law.
WTO uniformity seems to stem from the rule-of-law principles of certainty, consistency, and predictability to ensure equality, fairness, and justice.111 Under this view, humans are equal and should be equally treated. Regulatory rules should be written and
applied in the same way with the same manner. As such, officials and people should be
bound to act the same consistently in accordance with unified rules. This regulatory
framework embracing uniformity, therefore, can be considered as external, which is
comparable to Chinese Legalism.
D. Centralization
In order to ensure uniformity, Chinese Legalism suggests centralization. The GATT
does not literally require centralization, but the agreement provides the central administration a right to ‘obtain a review […] if there is good cause to believe’ that the decision
of independent reviews is ‘inconsistent with established principles of law or the actual
102 This WTO’s uniformity, in particular, refers to the general obligation laid down in the WTO Agreements, not the individual obligation reducing trade barriers, also known as the market access obligations; Julia Ya Qin, ‘“WTO-Plus” Obligations and Their Implications for the World Trade Organization
Legal System: An Appraisal of the China Accession Protocol’ (2003) 37 (3) Journal of World Trade
83-522.
103 GATT (n 82) Art VII(2)(b).
104 ibid Annex I, para 4(3).
105 ibid Art X(3)(a).
106 ibid Art VII(2)(b).
107 ibid Annex I, para 4(3).
108 ibid Art X(3)(a).
109 Cohen (n 81) 73; Alai and Vaughn (n 90) 370, 375.
110 Protocol on the Accession of the People’s Republic of China (n 85) para 2(A)1-2.
111 A Unique Contribution (n 80).
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facts’.112 In other words, the central government still functions to ensure the uniformity
of the principles of law.113
The China’s Protocol of Accession particularly requires centralization to ensure uniformity.114 Under the China’s Protocol of Accession, local regulations, rules, and measures at the sub-national level shall conform to the obligations of WTO and Protocol
agreements.115 In addition, China shall establish a mechanism that allows individuals and
enterprises to bring cases to national authorities, the central government, regarding
non-uniform applications.116
WTO uniformity, therefore, relies on a centralized system to ensure conformity at the
national level as Chinese Legalists suggested. Under this setting, members act more
uniformly within their territories in accordance with their obligations under WTO law.117
The WTO, through its dispute settlement and secretariat settings, also functions as a
central administration to ensure conformity of Members at the international level.118
E. Promotion of Rule of Law?
The WTO is recognized as a rules-based system.119 Considering the concepts WTO
Agreements promote, such as: independent judicial reviews relating to separation of
powers, transparency regarding publication of rules, fairness of ‘uniform, impartial and
reasonable’ application of legal measures, equality of access and treatment, and the
dispute settlement system underscoring due process,120 the impact on China is often
viewed to be a rule of law development.121
The concept of the rule of law, however, does not have an official definition.122 Some
scholars, international law judges, and officials of the United Nations (UN) provided the
core values of the concept.123 In a UN report, the Secretary-General stated, ‘The “rule of
law” is a concept at the very heart of the Organization’s mission […] [which] requires […]
112
113
114
115
116
117
118
119
120
121
122
123
GATT (n 82) Art X(3)(b).
Lam (n 86) 96; Alai and Vaughn (n 90) 373, 378.
Lam (n 86) 96.
Protocol on the Accession of the People’s Republic of China (n 85) para 2(A)3; Julia Ya Qin, ‘Trade,
Investment and Beyond: The Impact of WTO Accession on China’s Legal System’ (2007) 191 China
Quarterly 720-41, 721.
Protocol on the Accession of the People’s Republic of China (n 85) para 2(A)4.
In light of WTO law, Members are obliged to revise their laws and regulations in accordance with
WTO Agreements. For instance, China revised its laws and regulations before and after the accession. Gregory C Shaffer and Ricardo Meléndez-Ortiz (eds), Dispute Settlement at the WTO: The
Developing Country Experience (CUP 2010) 144; see also Jianfu Chen, Chinese Law: Context and
Transformation (Martinus Nijhoff 2007) 626.
Renê Guilherme S Medrado, ‘Renegotiating Remedies in the WTO: A Multilateral Approach’ (2004)
22 Wisconsin ILJ 323, 338 (discussing the role of WTO regarding ‘the GATT DS system encompassed
both a “partially centralized managed system of adjudication” and a “decentralized managed system
of enforcement”’); Robert O Keohane and Joseph S Nye Jr, ‘Between Centralization and Fragmentation: The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy’
(2001) John F Kennedy School of Government Harvard University Faculty Research Working
Papers Series RWP01-004, 19 <https://research.hks.harvard.edu/publications/getFile.aspx?Id=4>
accessed 4 August 2016.
A Unique Contribution (n 80).
ibid.
Jennifer Hillman, ‘An Emerging International Rule of Law? – The WTO Dispute Settlement System’s
Role in its Evolution’ (2012) 42(2) Ottawa Law Review 271; Lam (n 86) 151-78.
Lam (n 86) 153.
Hillman (n 121) 272-75.
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measures to ensure adherence to the principles of supremacy of law, equality before the
law, accountability to the law, fairness in the application of the law, separation of powers,
participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency’.124
A former Member of the WTO Appellate Body, Jennifer Hillman, also provided the
meaning of the ‘rule of law’ by sharing a view of her colleague, David Unterhalter. Also
being a WTO’s Appellate Body Member, Unterhalter considered the core of the rule of law
is ‘a standard against arbitrariness’ and the concept about rules that are: (1) of universal
application’, (2) having ‘a determined and transparent content’, (3) ‘capable of being accessed by everybody’, and (4) ‘ uniformly applied with consequence for non-compliance’.125
Reviewing the stated core values that are provided by the UN, WTO law, and WTO
Appellate Body Members, equality and fairness seem to be the ultimate goal, and supremacy of law to be a means. In order to ensure equality and fairness, the law has the
supreme power, which has to be certain by universal and uniform application, checked
and balanced by separation of powers, as well as transparent to avoid arbitrariness. As
such, people and governments are equally governed and protected by an external
means, the law, through external settings.
Being the essence of the rule of law, supremacy of law seems to be stemmed from
the distrust of humans.126 Aristotle, as one of the ancient philosophers in the West, considered that humans are equal.127 He stated, ‘It is more proper that law should govern
than any one of the citizens […] if it is advantages to place the supreme power in some
particular persons, they should be appointed to be only guardians, and the servants of
the laws, for the supreme power must be placed somewhere’.128
In addition, Aristotle observed the ‘imperfection of human nature, apparent in rulers
as well as in ruled’, 129 regarding their desire as ‘wickedness of mankind’,130 which ‘is
boundless in its extent’ and ‘the means […] are boundless also’.131 To Aristotle, ‘law is
reason without desire’.132 As such, ‘[H]e who would place the supreme power in mind,
would place it in God and the laws; but he who entrusts man with it, gives it to a wild
beast, for passion influences those who are in power, even the very best of men’.133
This view regarding imperfect human nature seems to be comparable with the view
of Chinese Legalists. Based on the negative views of humans, Chinese Legalists suggested that humans should not be trusted and shall be controlled by published law that
should be uniform. Similarly, based on the imperfection of humans, the Western rule of
law considered humans shall only be the servants of law and everyone should be governed by published law that should be uniformly applied. Thus, although their goals can
124 United Nations Security Council (Report of the Secretary-General), The Rule of Law and Transnational Justice in Conflict and Post-conflict Societies (23 Aug 2004).
125 Hillman (n 121) 274.
126 Hillman (n 121) 271.
127 Aristotle (n 89) (‘[N]ature has made all men equal, and therefore it is just, be the administration
good or bad, that all should partake of it’.)
128 Aristotle (n 89) 175.
129 ibid 12.
130 ibid 95 (‘It is the nature of our desires to be boundless’).
131 ibid 50.
132 ibid.
133 ibid 186; see also Jialue ‘Charles’ Li, China, ‘A Sui Generis Case for the Western Rule-of-Law Model’
(2009-2010) 41 Georgetown J Intl L 711, 712.
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be completely different, Chinese Legalists and the Western rule of law concept presented
at WTO law seem to be sharing a common external setting based on distrust.
IV. Chinese Internal Regulatory Settings
Contrasted with the external regulatory framework laid down by the WTO Agreements, China, however, adopts an internal regulatory approach. Instead of independent
bodies based on separation of powers, China relies on an internal framework based on
coordination of powers. In light of this internal system, administrative actions are governed by the Party through accountability regulations, a system of performance management of civil servants, as well as the judiciary under the executive function. This regulatory framework relies on internal settings, which are related to Confucian self-regulation.
This Confucian framework, however, has not adopted Confucian belief of inherent
virtue, which is known as morality. Although President Xi Jinping has promoted Confucianism recently, Modern China has fundamentally embraced Chinese Legalism, in particular, its governance theory, since Chairman Mao’s administration.134 Under Mao’s leadership, people were controlled and regulated by the Party. Equality focuses on uniformity and centralization. The Party is the sole ruler and leader.135 Confucianism was portrayed to be connecting with class and gender discriminations, which should be suppressed. This anti-Confucian perspective, which President Xi seems to be trying to
change,136 is still deeply rooted in Modern China nowadays.
A. Accountability Regulations within the Party
An essential element of the Chinese internal regulatory framework is the Party’s accountability regulations that govern Party members who are the sole leaders of the Chinese government. These accountability regulations, namely the Temporary Regulation
Concerning the Implementation of Political and Administrative Leaders’ Accountability
(TRA) were adopted in 2010 by the Communist Party of China (CPC) Central Committee
Political Bureau.137
This TRA imposes disciplinary sanctions on leading officials and party leaders at administrative agencies and state-owned enterprises.138 Those sanctions include an order
to apologize openly, voluntary and mandatory resignations, as well as suspensions from
134 Stanford Encyclopedia (n 14) (‘The endorsement of Legalism peaked under Mao Zedong 㮃㽌㜙
[1893-1976]’)
135 Xianfa 1982 (Constitution of the People’s Republic China 1982) The Preamble.
136 Shengnan Zhao (n 2). The change from Anti-Confucianism to promoting Confucianism, however,
may not necessarily mean that China would adopt Confucianism instead of Chinese Legalism. China
seems to be adopting both theories by, on one hand, strengthening Confucian self-regulatory framework by ‘morality construction’; one the other hand, enhancing Legalist control of the people through
the ‘rule of law with Chinese characteristics’.
137 ‘Quanyu Shixing Dangzheng Lingdao Ganbu Wenze De Zanxing Quiding’ (ℛḶ⭆埴ℂ㓧栮⮤⸚悐斖峋䘬
㘪埴奬⭂) (Temporary Regulation on Accountability of the Leading Party Cadres) (China.com.cn,
8 January 2010) <http://www.china.com.cn/policy/txt/2010-01/08/content_19200533.htm> accessed 8 August 2016; see also ‘Party Officials Brought to Account by New Rule’ (China.org.cn,
24 March 2011) <http://www.china.org.cn/china> accessed 10 March 2016.
138 Temporary Regulation on Accountability (n 137) Art 24.
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and termination of official positions.139 However, considering permanent dismissals to be
unfair and ineffective, the TRA allows miscreant officials to be reappointed subject to the
decisions of the party committee.140
These rules encouraging apologies and reappointments seem to be in line with Confucian belief that discourages punishments but embraces learning from mistakes. In addition, under these accountability regulations, administrative actions are governed by the
Party by way of regulating leading officials within the Party. This regulatory approach,
therefore, is internal, which emphasizes Confucian like self-regulatory tradition, instead
of external independent reviews.
B. The System of Performance Management of Civil Servants
Another internal review of Chinese administration is provided by the system of performance management of civil servants under the Party. In accordance with the Public
Servants Law (PSL),141 the personnel system shall uphold the principle that ‘cadres are
under the administration of the Party’.142 In addition, public servants shall work under the
principles of openness, equality, competition, merit, and the statutory limits of authority,
requirements, standards, and procedures.143 Chinese civil servants, therefore, are subject to the supervision of the Party, the general principles stated in the PSL, as well as
other statutory limits by law.
In practice, Chinese civil servants operate under the Objective Responsibility System
(ORS), which follows the principles of ‘management by objectives’ (MBO) used by profitmaking corporations.144 In light of this system, lower-level officials are given targets by
higher-level administrators and held responsible for achieving those targets.145 The careers and fortunes of lower-level officials are tied to their performance through promotion, rewards, and punishment.146
In the 1980s, target and performance evaluation focused on economic growth such
as GDP, amount of investment attracted, and tax revenue generated.147 In the 1990s, a
more systematic approach was promoted to balance economic and social development
by emphasizing human services, sustainable development, as well as administration by
law.148 For instance, after the food safety crisis, the State Council issued a Decision requiring food safety as one of the ‘veto’ items of performance evaluation.149 Under the
139 ibid Art 7.
140 ibid Art 10.
141 Gongwuyuan Fa (℔≉␀㱽) (Public Servants Law 2005) <http://www.npc.gov.cn/englishnpc/Law/
2007-12/13/content_1384101.htm> accessed 8 August 2016.
142 ibid Art 4.
143 ibid Art 5.
144 John P Burns and Zhiren Zhou, ‘Performance Management in the Government of the People’s Republic of China: Accountability and Control in the Implementation of Public Policy’ (OECD, 26 November
2010) <http://www.oecd-ilibrary.org/governance/performance-management-in-the-governmentof-the-people-s-republic-of-china_budget-10-5km7h1rvtlnq> accessed 10 March 2016.
145 ibid 2.
146 ibid 4.
147 ibid.
148 ibid.
149 Guowuyuan Guanyu Jiajiang Shipin Anquan Gongzuo De Jueding (⚥≉昊ℛḶ≈⻢梇⑩⬱ℐⶍἄ䘬⅛⭂)
(Decision of the State Council about Further Strengthening Food Safety 2004) para 28 <http://www.
gov.cn/zwgk/2012-07/03/content_2175891.htm> accessed 10 March 2016. ‘Veto items’ are the
most important areas in terms of civil servant performance evaluation. See also Min Jie, ‘The Power
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Decision, higher-level governments evaluate the performance of lower-level officials by
the success of their food safety supervision, together with economic growth, and other
items regarding social development.
Other than the decrees from the central government, many of these targets are established by the five-year plans of the NPC.150 For instance, the 12th Five-year Plan
(2011-2015) provides a list of quantifiable targets, such as GDP growth of 7 percent a
year, more than forty-five million jobs in urban areas, registered unemployment rate not
higher than 5 percent, value-added output 47 percent of the GDP in service sector, and
urbanization rate of 51.5 percent.151 Official performances are measured by this list with
some local adjustments. As such, this performance management system is also considered as rule by power, instead of rule of law.152 Officials at the lower-level governments
are responsible to higher-level governments within an internal regulatory framework,
but not directly to the people being supervised in the region.
C. Internal Administrative Review
In addition to internal accountability regulations and the performance management
system, Chinese officials are subject to administrative review under Chinese administrative law. Instead of a single statute governing administrative procedure, Chinese administrative law provisions are found in different statutes concerning varied administrative
actions.153 For instance, statutes regarding food and product safety often have a section
listing administrative obligations.154 Besides these administrative law provisions located
in different substantive statutes, two particular procedural statutes focus on administrative and judicial reviews that aim to deal with general disputes between people and the
Chinese administration. One is the Administrative Litigation Law (ALL)155 and the other is
the Administrative Reconsideration Law (ARL).156
150
151
152
153
154
155
156
of Appraisal’ (News China, April 2013) <http://www.newschinamag.com/magazine/the-power-ofappraisal> accessed 10 March 2016. Before the Decision formulated by the State Council, local
provinces such as Beijing, Shanghai, and Guangdong had included food safety as one of the administrative performance focuses. ‘Government Leaders Gear Up for Major Campaign on Food Safety
Issues’ (Global Times, 16 May 2011) <http://www.globaltimes.cn/content/655432.shtml> accessed
10 March 2016
Burns and Zhou (n 144) 16.
‘Key Targets of China’s 12th Five-year Plan’ (Xinhuanet, 5 March 2011) <http://news.xinhuanet.
com/english2010/china/2011-03/05/c_13762230.htm> accessed 10 March 2016.
Min Jie (n 149).
Chinese product and food safety statutes have their own administrative provisions. For instance, the
Food Safety Law (FSL) has a particular chapter, Chapter 8, that requires local administrations to
fulfill their administrative and supervisory responsibilities such as ‘establishing and maintaining food
safety credit records regarding food producers and traders, record issuance of licenses, and results
of daily supervision’, among others. Another example is the Product Quality Law (PQL). A particular
chapter, Chapter 2, lays down what administrative agencies shall do. Other statutes, such as Consumer Protection Law (CPL), also has similar administrative supervisory chapter as the FSL and PQL.
ibid.
Xingzheng Susongfa (埴㓧孱孤㱽) (Administrative Procedure Law or Administrative Litigation
Law 1989) <http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383912.htm> accessed
10 March 2016.
Xingzheng Fuyifa (埴㓧⢵孖㱽) (Administrative Reconsideration Law 1999) <http://www.npc.gov.cn/
englishnpc/Law/2007-12/11/content_1383562.htm> accessed 10 March 2016.
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The ALL aims to ensure administrative action is implemented in accordance with existing laws.157 In light of the ALL, Chinese citizens, legal persons, and other organizations
have a right to file lawsuits in people’s courts if any legitimate rights and interests are
infringed by a ‘concrete administrative act of an administrative organ or its personnel’.158
‘Concrete administrative acts’, however, are limited to specific acts involving administrative sanctions that restrain legitimate liberty or property rights.159 People’s courts do
not accept cases related to ‘the acts of state’ such as national defense, administrative
regulations and rules, personnel appointment and dismissal, and administrative acts that
are deemed to be final and unreviewable by law.160 In addition, people are required to
seek administrative reconsideration before filing lawsuits if such reconsideration is required by related laws and administrative measures.161
The ALL requires people’s courts to exercise their judicial power independently, which
is not subject to any interference by administrative organs, social organizations, and
individuals.162 In practice, as the White Paper of Judicial Reform in China 2012 states,
one of the basic characteristics of the Chinese judicial system is that people’s courts are
created by people’s congresses.163 Thus, people’s courts are responsible to, and supervised by, the legislative organs.164
In addition, people’s courts are also subject to the supervision of the courts at higher
levels, judicial institutions, as well as the ‘collaboration and check’ of people’s procuratorates and public security organs.165 Chinese judicial review, therefore, may not be considered as independent under the Western rule of law context, but more like a type of internal adjudication subject to executive and legislative supervisions.166
This internal characteristic is also reflected in the Work Report of the NPC Standing
Committee in 2011. Independence is mentioned twice by Chairman Wu Bangguo. One
refers to ‘independent foreign policy of peace and the path of peaceful development’,
which negates external checks from international community.167 Another refers to ‘an
independent and just manner’ applied by judicial and procuratorial institutions.168 To
Modern China, independence does not refer to external checks or balances, but the manner of judgment within an internal regulatory framework.
157
158
159
160
161
162
163
164
165
166
167
168
ALL (n 155) Art 1.
ibid Art 2.
ibid Art 11.
ibid Art 12.
ARL (n 156) Art 16.
ibid Art 3.
‘Full Text: Judicial Reform in China’ (Xinhuanet, 9 October 2012) <http://news.xinhuanet.com/english/china/2012-10/09/c_131895159.htm> accessed 10 March 2016; see also Eric C Ip, ‘Judicial
Review in China: A Positive Political Economy Analysis’ (2012) 8 Review of Law and Economics 331,
334 (Section 2.2 explains the statutory limits of judicial review in China).
ibid; see also Veron Mei-Ying Hung, ‘China’s WTO Commitment on Independent Judicial Review:
Impact on Legal and Political Reform’ (2004) 52 AJCL 77, 96.
Hung (n 164) 99.
‘How Does NPC Exercise Its Power of Supervision?’ (China Daily, 4 March 2015) <http://www.chinadaily.com.cn/china/2015twosession/2015-03/04/content_19719531.htm> accessed 10 March 2016.
The Standing Committee National People’s Congress (NPCSC), ‘Full Text: Work Report of NPC Committee (2011)’ (Gov.cn, 14 March 2011) <http://english.gov.cn/official/2011-03/18/content_
1827230.htm> accessed 10 March 2016; see also Cohen (n 81) 74.
ibid.
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269
Similar to judicial review, the scope of administrative reconsideration is limited to
specific administrative acts.169 In addition, such review is implemented by administrative
organs.170 Although the ARL requires reconsideration procedures to follow the ‘principles
of legality, impartiality, openness, promptness, and convenience […] to guarantee the
appropriate implementation of laws and regulations’,171 administrative reconsideration
bodies can be the same agencies, departments, or governments at the same level, or the
next higher level, as the agencies in dispute.172 Thus, administrative reconsideration may
not be considered as independent as well, but internal reconsideration.
This internal characteristic of administrative reconsideration is well acknowledged.
Some scholars consider administrative reconsideration as a self-correcting mechanism
providing a chance for agencies to correct mistakes before a case makes it to court.173
The administrative reconsideration process, therefore, is also within an internal regulatory framework relating to Confucian self-regulation.174
D. Coordination of Powers
In Modern China, the term ‘rule of law’ is often linked with implementation of Constitutionalism, protection of citizen rights, human rights, the sense of justice and others,
but never separation of powers.175 This anti-separation-of-powers system is based on
Deng Xiaoping’s policy. Deng stated that China does not adopt separation of powers,
multi-party election, and bicameral or federal systems.176
According to Deng, the unicameral legislative system by NPC is the most pragmatic
for China.177 This system can avoid many political obstacles and be beneficial for leading
the country to prosperity.178 In Deng’s view, the key factor is whether the authority can
find the right direction.179 If a wrong direction is adopted, having a system of checks and
balances cannot help to fix such problems.180
This anti-separation-of-powers attitude is still in effect. In March 2015, the top legislator, Zhang Dejiang, emphasized the leadership of the Party and the governance framework of ‘precondition for “social democracy” that denies a system of multiple parties
holding office in rotation or the Western-style “separation of powers”’.181 This view follows Wu Bangguo, the former Chairman of the NPC Standing Committee. In line with
169
170
171
172
173
174
175
176
177
178
179
180
181
ARL (n 156) Art 1.
ibid Art 2.
ibid Art 4.
ibid Arts 12-16.
Mingan Jiang (⦄㖶⬱), Xingzhengfa Yu Xingzheng Susongfa (埴㓧㱽ᶶ埴㓧孱孤㱽) (Administrative
Law and Administrative Litigation Law) (3rd edn, Peking UP 2007) 421.
ibid.
Yinan Zhao, ‘Xi Pledges to Implement Rule of Law’ (China Daily, 5 December 2012) <http://www.
chinadaily.com.cn/china/2012-12/05/content_15985873.htm> accessed 10 March 2016.
‘Zai Zhongguo Weishenma Bushisxing “Sanquan Fenli”’ (⛐ᷕ⚥ᷢṨᷰᶵ⭆埴ȿᶱ㛫↮䩳) (Why China
Not Adopting Separation of Powers) (Lianhui, 8 June 2003) <http://www.lianghui.org.cn/chinese/
zhuanti/rdzd/645661.htm> accessed 10 March 2016.
ibid.
ibid.
ibid.
ibid.
‘Top legislator Delivers NPC Standing Committee Work Report’ (China Daily, 8 March 2015)
<http://www.chinadaily.com.cn/china/2015twosession/2015-03/08/content_19750883.htm> accessed 10 March 2016.
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Tang, The WTO’s Impact on China
Deng, Wu stated, ‘On the basis of China’s conditions, we have made a solemn declaration
that we will not employ a system of multiple parties holding office in rotation; diversify
our guiding thought; separate executive, legislative and judicial powers; use a bicameral or federal system; or carry out privatization’.182 As such, unifying thoughts and antiseparation-of-powers are two of the main themes.
In the view of the Xi Jinping’s administration, the implementation of the CPC Constitution depends on the establishment of a ‘socialist nation ruled by law’.183 In this system,
‘no organization or individual has the privilege to overstep the Constitution and the
law’.184 However, Chinese scholars and officials also clearly state that the separation of
powers doctrine contradicts the CPC Constitution and is, therefore, unconstitutional.185
Instead of the separation of legislative, executive, and judicial powers, Modern Chinese ‘socialist rule by law’ embraces internal checks and balances between the powers
of decision, executive, and disciplinary inspection within the Party.186 Under this internal
framework, the highest decisive power is held by the NPC. The executive power is at the
Central Committee, the Politburo, and the Politburo Standing Committee. The disciplinary power is held by the Central Commission for Discipline Inspection (CCDI), which is
elected by the NPC and directed by the Central Committee. The executive power, therefore, is not regulated by any independent institution of an external framework.187
E. The Construction of Morality
This internal regulatory framework related to Confucianism, however, does not have
the foundation of Confucian internal virtue yet. Although the original Confucian selfregulatory framework is based on human goodness that requires authorities to be established by the trust of people through benevolent and righteous conduct, Modern China
suppressed traditional Confucian thought and embraced Chinese Legalism, in particular,
under Chairman Mao’s administration.188
182
183
184
185
NPCSC 2011 Work Report (n 167).
Yinan Zhao (n 175).
ibid.
ibid; ‘Qinghua Xuwzhe: Sanquan Fenli Xifang Ye Shaoyong Zhongguo Jue Buneng Gao’ (㶭⋶⬎侭:
“ᶱ㛫↮䩳” 大㕡ḇ⮹䓐 ᷕ⚥亅ᶵ傥㏆) (Separation of Powers Seldom Adopted Even by the West, It
Should Absolutely Not Adopted by China) (Ifeng, 10 May 2010) <http://news.ifeng.com/mainland/
detail_2010_05/10/1499424_0.shtml> accessed 10 March 2016; ‘Duikang Zhongyang Baokuo
Guchui Sanquan Fen li’ (⮵㈿ᷕ⣖⊭㊔溻⏡ᶱ㪲↮䩳) (Resisting the Central Authority Includes Suggesting Separation of Powers) (Singtao, 27 March 2013) <http://www.singtao.com/breakingnews/
20130327a140916.asp> accessed 10 March 2016. Although promoting the separation of powers is
considered as counter-Chinese authority, Hong Kong has adopted the rule of law and separation of
powers since the British colonization. There are debates whether Hong Kong has adopted the system
of separation of powers. ‘Xianggang Tequ Bu Shixing Sanquan Fenli’ (楁㷗䈡⋢ᶵ⭆埴ᶱ㛫↮䩳) (Hong
Kong Does Not Adopt the Separation of Powers) (Wenweipo, 13 June 2007) <http://paper.wenweipo.com/2007/06/13/WW0706130004.htm> accessed 10 March 2016.
186 ibid; ‘Li Yongzhong: Shibada Hou Zhidu Fanfu Zhanwang’ (㛶㯠⾈:⋩ℓ⣏⎶⇞⹎⍵僸⯽㛃) (Li Yongzhong: Anti-corruption Foresight after the 18th NPC Meeting) (China Daily, 21 November 2012)
<http://www.chinadaily.com.cn/dfpd/2012-11/21/content_15947701.htm> accessed 10 March
2016.
187 ‘Zhonggong De “Sanquan Zhiheng”’ (ᷕℙ䘬 “ᶱ㛫⇞堉”) (Chinese CPC’s Balances of Three Powers)
(NY Times, 24 September 2012) <http://cn.nytimes.com/article/china/2012/09/24/cc24qiangang7/> accessed 10 March 2016.
188 ‘Criticize Lin Biao and Confucius (1974)’ (Chinese Poster) <http://chineseposters.net/themes/criticize-lin-biao-confucius.php> accessed 21 December 2015.
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During that time, Chairman Mao led ‘Anti-Confucians’ and ‘Anti-intellectuals’ campaigns and compared himself with the First Emperor of Qin dynasty of Chinese Legalism.189 Mao’s administration also rewrote history, connected Confucianism with slavery,
feudalism, and class and gender discriminations, burned Confucian books, buried scholars, suppressed Chinese tradition; gained the ownership of the land, and established the
People’s Republic of China (PRC) as an uncivilized country moving towards a modern
socialist and communist nation.190
After the death of Chairman Mao in 1976, these Anti-Confucian and Anti-Chinesetraditional-thoughts generally continued.191 By adopting Chinese Legalism with the Socialist-Market policy, Modern China has mainly been driven by Legalist and Capitalist
self-interest.192 Since 2001, as a member of WTO, Modern China has begun to emphasize
the development of ‘rule of law with Chinese characteristics’, which is also named as
‘socialist rule of law’ and ‘rule by law’. This system seems to be combining Legalist substantive approaches within a Confucian self-regulatory framework.
Considering the Chinese Legalist approach, President Xi Jinping views regulations as
the cage to restrict administration, officials to be ‘tigers, and law to be an external means
of control by fear and punishments’.193 To Xi, a disciplinary mechanism should be established to prevent people from daring or being able to engage in corruption.194 ‘We must
not relax the use of penalties if we want to rule Party members strictly’. Xi stated.195
However, this regulatory framework is an internal one, which relies on self-regulation,
the Party to regulate the Party.
Yet, this Confucian self-regulatory framework does not have the basis of Confucian
inherent virtue. The Party generally acknowledges this phenomenon as the lack of morality.196 Since 2014, the Chinese official media has begun to encourage the combination
189 Hsuen-Wen Wang, Legalism and Anti-Confucianism In Maoist Politics (Taipei, Institute of International Relations 1975); see also Zhengyuan Fu, China’s Legalists: The Earliest Totalitarians and Their
Art of Ruling (USA, M.E. Sharpe 1996).
190 ‘The Socialist System of Laws with Chinese Characteristics’ (State Council, 27 October 2011)
<http://english.gov.cn/archive/white_paper/2014/09/09/content_281474986284659.htm>
accessed 8 August 2016.
191 Fu (n 189) 131 (‘The praise and tribute paid to the Legalists by the party-state were not confined to
the Mao era but continued into the post-Mao reform period […] In one recently published history
textbook edited by the faculty of a normal university, Legalist political practice is lauded: “The burning of books and burying alive of Confucian scholars played positive roles in the consolidation of
political unity” […] This textbook is used by teachers’ colleges’).
192 This phenomenon is also described as ‘moral decay’, ‘the lack of morality’, or other similar terms by
the official media. ‘Netizens Decry Moral Decay in China’ (China Daily, 19 October 2011) <http://
www.chinadaily.com.cn/opinion/2011-10/19/content_13933692.htm> accessed 10 March 2016;
see also ‘Students Lack Moral Values’ (China Daily, 9 September 2014) <http://www.chinadaily.com.
cn/opinion/2014-09/09/content_18564335.htm> accessed 10 March 2016.
193 ‘Xi Jinping Vows “Power within Cage of Regulations” ’ (Xinhuanet, 22 January 2013) <http://news.
xinhuanet.com/english/china/2013-01/22/c_132120363.htm> accessed 10 March 2016; see
also ‘No One Has Impunity In Anti-corruption Drive: Spokesman’ (China Daily, 2 March 2015)
<http://www.chinadaily.com.cn/china/2015twosession/2015-03/02/content_19696585.htm>
accessed 10 March 2016.
194 Xinhuanet (n 193).
195 ibid.
196 Shugang Luo (智㞹⇂ ), ‘Jianchi Yifa Zhiguo He Yide Zhiguo Xiang Jiehe (Xuexi Guanche Dang De
Shibajie Sizhong Quanhui Jingshen)’ (✂㊩ὅ㱽㱣⚥␴ẍ⽟㱣⚥䚠乻⎰ġ(⬎Ḉ峗⼣ℂ䘬⋩ℓ⯲⚃ᷕℐỂ䱦䤆))
(Insisting the Combination of Rule by Law and Rule by Ethnics (Learning to Implement the Spirit
Stated at the Fourth Plenary Session of the 18th Central Committee of the Communist Party of
China)) (People, 24 November 2014) <http://paper.people.com.cn/rmrb//html/2014-11/24/nw.
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Tang, The WTO’s Impact on China
of the ‘rule of law’ and ‘rule of morality’.197 To the Party, ‘the rule of morality’ is related to
‘socialist ethics’, which is sourced from Confucianism as the basis of rule of law relying
on the ethical conduct of leading officials to learn, respect, follow, and enforce legal
rules.198
In line with Confucianism, this ‘socialist ethical conduct’ involves self-discipline and
self-awareness to apply the law in an ethical way.199 To the Party, this policy is referred
to as the ‘construction of morality’. The goal is to establish the confidence of socialist
development.200 This construction, therefore, seems to be strengthening the Confucian
self-regulatory framework through exemplary conduct of leading officials to establish the
basis of trust, under the name of socialist development.
In 2015, the ‘construction of morality’ was emphasized again by President Xi in his
‘Four Comprehensives’. Also known as the ‘Four-prolonged Comprehensive Strategy’, it
provides a list of new political objectives.201 These objectives include: (1) comprehensively ‘establishing a moderately prosperous society’, (2) ‘deepening reform’, (3) ‘governing the nation in accordance with law’, and (4) ‘strictly governing the Party’.202
The development of a ‘moderately prosperous society’ is interpreted as to ‘build an
ideal Confucian society’ with benevolence, righteousness, ritual, and wisdom.203 ‘Deepening reform’ seems to be referring to further development in Chinese Legalist rule by
law as ‘governing the nation in accordance with law’.204 Seeing law a means of governance, Modern China relies on the Party to govern itself through morality, rather than
external reviews.205 As such, the Chinese ‘rule-of-law framework’ is moving further towards the internal regulatory direction, which is at the opposite side of the WTO rule-oflaw external framework.
V. Conclusion
This paper examines the impact of WTO law on China regarding their different regulatory directions in terms of administrative review settings. The study shows that one of the
main differences between the WTO and Chinese regulatory systems is that China adopts
197
198
199
200
201
202
203
204
205
D110000renmrb_20141124_1-07.htm#> accessed 10 March 2016. The lack of morality is generally considered as the source of problems such as food and product safety, corruption, pollution, as
well as uncivilized behavior of Chinese tourists.
Luo (n 196).
ibid.
ibid.
ibid.
Weimin Zhou, ‘“Four Comprehensives” a Road to Prosperity’ (China Daily, 6 March 2015) <http://
usa.chinadaily.com.cn/epaper/2015-03/16/content_19824527.htm> accessed 10 March 2016.
Robert L Kuhn, ‘Xi Makes His Governance Comprehensive’ (China Daily, 7 August 2015) <http://
europe.chinadaily.com.cn/epaper/2015-08/07/content_21525385.htm> accessed 10 March 2016.
Yihua Jiang (⦄ᷱ⋶), ‘Sige Quanmian Zhanlue Buju Shi Zai Jicheng Zhongguo Gudai Wenming Zhiguo Lizheng Sixiang Jingsui Shang De Jinyibu Fazhan Yu Chuangzao’ (‘⚃᷒ℐ朊”㇀䔍ⶫ⯨㗗⛐亏㈧ᷕ⚥
⎌ẋ㔯㖶㱣⚥䎮㓧⿅゛䱦橻ᶲ䘬徃ᶨ㬍⍹⯽ᶶ⇃忈’) (‘Four Comprehensives’: The Strategic Setting Inheriting Chinese Ancient Cultural Governing Thought for Further Development and Creation) (Fudan
Lilun [⢵㖎䎮孢], 17 April 2015) <http://lilun.fudan.edu.cn/index.php/detail/index/48/> accessed
10 March 2016.
ibid.
‘Learning the Four-Pronged Comprehensive Strategy’ (Heng Yang, 8 September 2015) <http://
www.enghengyang.gov.cn/showdetail.aspx?typeid=&newsid=14168> accessed 10 March 2016.
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an internal framework relying on Confucian self-regulation of trust, but without the basis
of inherent virtue yet; by contrast, WTO law assumes an external framework relying on
control based on Chinese Legalist like distrust, which embraces external reviews.206
These different approaches lead to two types of ‘rule of law’ at the opposite directions. Under the Chinese ‘internal-rule-of-law’ framework, justice and reasonableness
rely on self-regulated morality. Under WTO ‘external-rule-of-law’ framework, justice and
reasonableness rely on independent reviews based on checks and balances through
separation of powers. These Chinese and WTO frameworks have led to different administrative review systems that affect the implementation of law.
In addition, the current Chinese regulatory system seems to be combining Chinese
Legalism, Capitalism, and Confucianism. The Legalist elements include the views seeing
inherent virtue, justice and reasonableness, as unrealistic, and seeing law a means to
ensure rulers’, the Party’s, interest. Under these views, the Chinese administration functions to rule people by law, but may not be an object to be ruled by any external means.
This rulers’ self-interest driven ‘rule-by-law’ has integrated with the Capitalist self-interest driven Market policy, which has established an administrative system to pursue economic interest for the Party.207
Not being legally checked and balanced or ethically monitored, this self-interest driven self-regulated administrative framework has been operated as a laissez-faire
system,208 which is considered as the cause of the rapid economic growth and the series
of crises.209 The proposed solution, however, is to construct morality by enhancing the
internal regulatory framework. The ‘rule of law with Chinese characteristics’, therefore,
is directing to the opposite end of the rule of law in the West.
Although China, as a WTO member, may have more similar laws and regulatory terms
on paper, the Chinese administration has the discretionary power that is regulated only
by the Party. As such, the WTO’s impact on China is about a battle between the Chinese
internal and WTO external administrative review frameworks. On this battlefield, China
seems not to be affected by the WTO yet.
References
Chinese Policies and Tradition
‘Criticize Lin Biao and Confucius (1974)’ (Chinese Poster) <http://chineseposters.net/themes/
criticize-lin-biao-confucius.php>.
‘Duikang Zhongyang Baokuo Guchui Sanquan Fen li’ (⮵㈿ᷕ⣖⊭㊔溻⏡ᶱ㪲↮䩳) (Resisting the Central
Authority Includes Suggesting Separation of Powers) (Singtao, 27 March 2013) <http://www.
singtao.com/breakingnews/20130327a140916.asp>.
206 The necessity of external reviews may be related to the theory of ‘external virtue’, which refers to
the Legalist belief that humans are driven by self-interest, but not inherent virtue. Under this view,
virtue is not in humans but based on external control. Tang (n 7) 38.
207 More discussion about the role of the Chinese government is located in Chapter 5. Tang (n 7) 211;
see also Ming Du, ‘China’s State Capitalism and World Trade Law’ (2014) 63(2) ICLQ 409-448 (discussing the interaction between China’s state capitalism and WTO law).
208 Tang (n 7) ch 5. This laissez faire system is related to Cufangshi Fazhan (䰿㓦⺷⍹⯽) in Chinese,
which is translated as ‘extensive development’. This term, in particular, refers to the development
focusing on quantifiable growth by negating sustainable development.
209 These crises refer to the regulatory problems in terms of corruption, food and product safety, and
environment pollution, among others.
© Verlag Österreich
274
Tang, The WTO’s Impact on China
‘Full Text: Judicial Reform in China’ (Xinhuanet, 9 October 2012) <http://news.xinhuanet.com/
english/china/2012-10/09/c_131895159.htm>.
‘Government Leaders Gear Up for Major Campaign on Food Safety Issues’ (Global Times, 16 May
2011) <http://www.globaltimes.cn/content/655432.shtml>.
‘How Does NPC Exercise Its Power of Supervision?’ (China Daily, 4 March 2015) <http://www.chinadaily.
com.cn/china/2015twosession/2015-03/04/content_19719531.htm>.
‘Junzi’ (⏃⫸, gentlemen), Chinese Encyclopedia Online (16 December 2015) <http://ap6.pccu.edu.
tw/Encyclopedia/data.asp?id=540>.
‘Key Targets of China’s 12th Five-year Plan’ (Xinhuanet, 5 March 2011) <http://news.xinhuanet.com/
english2010/china/2011-03/05/c_13762230.htm>.
‘Learning the Four-Pronged Comprehensive Strategy’ (Heng Yang, 8 September 2015) <http://www.
enghengyang.gov.cn/showdetail.aspx?typeid=&newsid=14168>.
‘Legalism in Chinese Philosophy’ (Stanford Encyclopedia of Philosophy, 15 December 2015) <http://
plato.stanford.edu/entries/chinese-legalism/>.
‘Li Yongzhong: Shibada Hou Zhidu Fanfu Zhanwang’ (㛶㯠⾈:⋩ℓ⣏⎶⇞⹎⍵僸⯽㛃) (Li Yongzhong:
Anti-corruption Foresight after the 18th NPC Meeting) (China Daily, 21 November 2012) <http://
www.chinadaily.com.cn/dfpd/2012-11/21/content_15947701.htm>.
‘Netizens Decry Moral Decay in China’ (China Daily, 19 October 2011) <http://www.chinadaily.com.
cn/opinion/2011-10/19/content_13933692.htm>.
‘No One Has Impunity In Anti-corruption Drive: Spokesman’ (China Daily, 2 March 2015) <http://
www.chinadaily.com.cn/china/2015twosession/2015-03/02/content_19696585.htm>.
‘Party Guarantees Rule of Law’ (China Daily, 12 February 2015) <http://www.chinadaily.com.cn/
opinion/2015-02/12/content_19560778.htm>.
‘Party Officials Brought to Account by New Rule’ (China.org.cn, 24 March 2011) <http://www.china.
org.cn/china>.
‘Qinghua Xuwzhe: Sanquan Fenli Xifang Ye Shaoyong Zhongguo Jue Buneng Gao’ (㶭⋶⬎侭:“ᶱ㛫↮
䩳” 大㕡ḇ⮹䓐 ᷕ⚥亅ᶵ傥㏆) (Separation of Powers Seldom Adopted Even by the West, It Should
Absolutely Not Adopted by China) (Ifeng, 10 May 2010) <http://news.ifeng.com/mainland/
detail_2010_05/10/1499424_0.shtml>.
‘Quanyu Shixing Dangzheng Lingdao Ganbu Wenze De Zanxing Quiding’ (ℛḶ⭆埴ℂ㓧栮⮤⸚悐斖峋䘬
㘪埴奬⭂) (Temporary Regulation on Accountability of the Leading Party Cadres) (China.com.cn,
8 January 2010) <http://www.china.com.cn/policy/txt/2010-01/08/content_19200533.htm>.
‘Students Lack Moral Values’ (China Daily, 9 September 2014) <http://www.chinadaily.com.cn/
opinion/2014-09/09/content_18564335.htm>.
‘The Legalist School in the Pre-Qin Period’ (Chinese Civilisation Centre, 15 December 2015)
<http://www.english.cciv.cityu.edu.hk/China_5000/?chapter=dicts/Legalist>.
‘The Socialist System of Laws with Chinese Characteristics’ (State Council, 27 October 2011)
<http://english.gov.cn/archive/white_paper/2014/09/09/content_281474986284659.htm>.
The Standing Committee National People’s Congress (NPCSC), ‘Full Text: Work Report of NPC Committee (2011)’ (Gov.cn, 14 March 2011) <http://english.gov.cn/official/2011-03/18/content_1827230.htm>.
‘Top legislator Delivers NPC Standing Committee Work Report’ (China Daily, 8 March 2015) <http://
www.chinadaily.com.cn/china/2015twosession/2015-03/08/content_19750883.htm>.
‘Xi Jinping Vows “Power within Cage of Regulations’ (Xinhuanet, 22 January 2013) <http://news.
xinhuanet.com/english/china/2013-01/22/c_132120363.htm>.
‘Xianggang Tequ Bu Shixing SanQuan Fenli’ (楁㷗䈡⋢ᶵ⭆埴ᶱ㛫↮䩳) (Hong Kong Does Not Adopt the
Separation of Powers) (Wenweipo, 13 June 2007) <http://paper.wenweipo.com/2007/06/13/
WW0706130004.htm>.
‘Zai Zhongguo Weishenma Bushisxing “Sanquan Fenli”’ (⛐ᷕ⚥ᷢṨᷰᶵ⭆埴”ᶱ㛫↮䩳) (Why China Not
Adopting Separation of Powers) (Lianhui, 8 June 2003) <http://www.lianghui.org.cn/chinese/
zhuanti/rdzd/645661.htm>.
‘Zhonggong De “Sanquan Zhiheng”’ (ᷕℙ䘬 “ᶱ㛫⇞堉”) (Chinese CPC’s Balances of Three Powers)
(NY Times, 24 September 2012) <http://cn.nytimes.com/article/china/2012/09/24/cc24qiangang7/>.
© Verlag Österreich
ICL Journal | Vol 10 | 3/2016 | Articles
275
Books and Articles
Ala’i P and RG Vaughn (authors and eds), Research Handbook on Transparency Paperback (Edward
Elgar 2014).
Aristotle, Politics: A Treatise on Government (William Ellis tr, first published 1912, London JM Dent &
Sons Ltd; New York EP Dutton & Co 1928 <https://itunes.apple.com/mo/book/politics-treatiseon-government/id395545349?l=zh&mt=11>.
Burns JP and Z Zhou, ‘Performance Management in the Government of the People’s Republic of China:
Accountability and Control in the Implementation of Public Policy’ (OECD, 26 November 2010)
<http://www.oecd-ilibrary.org/governance/performance-management-in-the-government-ofthe-people-s-republic-of-china_budget-10-5km7h1rvtlnq>.
Chen J, Chinese Law: Context and Transformation (Martinus Nijhoff 2007).
Coase R and N Wang, How China Became Capitalist (Palgrave Macmillan UK 2012).
Cohen J, ‘China’s Troubled Path to WTO’ (2001) 20 IFLR 71.
Confucius, The Analects (Lun Yü): Translated With An Introduction By D.C. Lau (Penguin Classics
1970).
Coulter J, ‘“Four Comprehensives” Are Not Just Slogans’ China Daily (China, 3 March 2015) <http://
www.chinadaily.com.cn/opinion/2015-03/03/content_19698859_2.htm>.
Fu Z, China’s Legalists: The Earliest Totalitarians and Their Art of Ruling (ME Sharpe 1996).
Guo B, ‘New Trends in China’s Administrative Reform’ (China Center, 15 October 2014) <http://www.
chinacenter.net/2014/china_currents/13-2/new-trends-in-chinas-administrative-reform/>.
Han Feizi, Basic Writings (Watson B tr, Columbia UP 2003) (E-book).
Hillman J, ‘An Emerging International Rule of Law? – The WTO Dispute Settlement System’s Role in
its Evolution’ (2012) 42(2) Ottawa Law Review 271.
Hsu S and YY Wu (eds), Education As Cultivation In Chinese Culture (Springer Singapore 2015).
Hung V MY, ‘China’s WTO Commitment on Independent Judicial Review: Impact on Legal and Political
Reform’ (2004) 52 AJCL 77.
Ip EC, ‘Judicial Review in China: A Positive Political Economy Analysis’ (2012) 8 Review of Law and
Economics 331.
Jiang M (⦄㖶⬱), Xingzhengfa Yu Xingzheng Susongfa (埴㓧㱽ᶶ埴㓧孱孤㱽) (Administrative Law and
Administrative Litigation Law) (3rd edn, Peking UP 2007).
Jiang Y (⦄ᷱ⋶), ‘Sige Quanmian Zhanlue Buju Shi Zai Jicheng Zhongguo Gudai Wenming Zhiguo
Lizheng Sixiang Jingsui Shang De Jinyibu Fazhan Yu Chuangzao’ (‘⚃᷒ℐ朊’㇀䔍ⶫ⯨㗗⛐亏㈧ᷕ⚥⎌
ẋ㔯㖶㱣⚥䎮㓧⿅゛䱦橻ᶲ䘬徃ᶨ㬍⍹⯽ᶶ⇃忈) (‘Four Comprehensives’: The Strategic Setting Inheriting Chinese Ancient Cultural Governing Thought for Further Development and Creation) (Fudan
Lilun [⢵㖎䎮孢], 17 April 2015) <http://lilun.fudan.edu.cn/index.php/detail/index/48/>.
Jie M, ‘The Power of Appraisal’ (News China, April 2013) <http://www.newschinamag.com/magazine/
the-power-of-appraisal>.
Keohane RO and JS Nye Jr, ‘Between Centralization and Fragmentation: The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy’ (2001) John F Kennedy School of Government Harvard University Faculty Research Working Papers Series RWP01-004, 19 <https://
research.hks.harvard.edu/publications/getFile.aspx?Id=4>.
Kuhn RL, ‘Xi Makes His Governance Comprehensive’ (China Daily, 7 August 2015) <http://europe.
chinadaily.com.cn/epaper/2015-08/07/content_21525385.htm>.
Lam E, China and the WTO: A Long March towards the Rule of Law (Wolters Kluwer 2009).
Lao S (⊆⿅⃱), Zhongguo Zhexueshi Volume I ᷕ⚳⒚⬠⎚䫔ᶨ⌟ġ(History of Chinese Philosophy Volume
I) (4th edn 1985).
Legge J, The Chinese Classics: Volume I: Confucian Analects (E-book 2015) <https://itunes.apple.
com/kh/book/chinese-classics-volume-1/id955140709?mt=11>.
Li JC, China, ‘A Sui Generis Case for the Western Rule-of-Law Model’ (2009-2010) 41 Georgetown J
Intl L 711.
Luo S (智㞹⇂ ), ‘Jianchi Yifa Zhiguo He Yide Zhiguo Xiang Jiehe (Xuexi Guanche Dang De Shibajie
Sizhong Quanhui Jingshen)’ (✂㊩ὅ㱽㱣⚥␴ẍ⽟㱣⚥䚠乻⎰(⬎Ḉ峗⼣ℂ䘬⋩ℓ⯲⚃ᷕℐỂ䱦䤆)) (Insisting the Combination of Rule by Law and Rule by Ethnics (Learning to Implement the Spirit
Stated at the Fourth Plenary Session of the 18th Central Committee of the Communist Party of
© Verlag Österreich
276
Tang, The WTO’s Impact on China
China)) (People, 24 November 2014) <http://paper.people.com.cn/rmrb//html/2014-11/24/
nw.D110000renmrb_20141124_1-07.htm#>.
Medrado RGS, ‘Renegotiating Remedies in the WTO: A Multilateral Approach’ (2004) 22 Wisconsin ILJ
323.
Mencius (DC Lau tr, 3rd edn, first published 1979, Chinese UP 2003) 72-73.
Ming D, ‘China’s State Capitalism and World Trade Law’ (2014) 63(2) ICLQ 409.
Qin JY, ‘“WTO-Plus” Obligations and Their Implications for the World Trade Organization Legal System: An Appraisal of the China Accession Protocol’ (2003) 37 (3) Journal of World Trade 483.
Qin JY, ‘Trade, Investment and Beyond: The Impact of WTO Accession on China’s Legal System’
(2007) 191 China Quarterly 720.
Shaffer GC and R Meléndez-Ortiz (eds), Dispute Settlement at the WTO: The Developing Country
Experience (CUP 2010).
Tang NK, ‘China v. China: The Paradox in Regulating Food and Product Safety’ (SJD dissertation,
American University 2014) <http://aladinrc.wrlc.org/handle/1961/16593>.
Wang HW, Legalism And Anti-Confucianism In Maoist Politics (Taipei, Institute of International Relations 1975).
Xunzi, Basic Writings (Watson B tr, Columbia UP 2003).
Zhao S, ‘Xi Cites Confucius as Positive Example for Modern Nation’ (China Daily, 25 September 2014)
<http://www.chinadaily.com.cn/culture/2014-09/25/content_18658579.htm>.
Zhao Y, ‘Xi Pledges to Implement Rule of Law’ (China Daily, 5 December 2012) <http://www.chinadaily.com.cn/china/2012-12/05/content_15985873.htm>.
Zhou W, ‘“Four Comprehensives” a Road to Prosperity’ (China Daily, 6 March 2015) <http://usa.chinadaily.com.cn/epaper/2015-03/16/content_19824527.htm>.
© Verlag Österreich