It was in the late 1970s when Jianfu Chen entered university, and studying law was still an emerging field in China. The judicial system had suffered during the years of the Cultural Revolution, and was just beginning to re-establish itself in the People’s Republic.
“In those early days many judges were unqualified and there were less than 200 lawyers in China,” says Chen. “Studying law at this time gave me the opportunity to see its development first-hand and watch the institution grow from scratch.”
China functions with a Civil Law system, the basis for which had originated in continental Europe. It had earlier been established in Japan with much success, and it was seen as the best fit for China when legal reforms started at the turn of the 20th Century, although it went to take on what Chen calls ‘an added flavour of socialism’.
Chen is now a Professor in the La Trobe Law School at La Trobe University, where he researches and teaches Chinese law and international business law. While acknowledging huge progress since the 1970s, he sees some major problems in China’s legal system.
“There’s a fundamental flaw in its basic structure, and that is the lack of a separation of powers, and hence the checks and balances” says Chen. “In the western understanding of law the courts are independent, and no man is above the law. In China the Communist Party is yet to learn to operate under the law, and judges don’t have the independence they need.”
“In most cases this has only limited bearing and everyday justice is, by and large, met. But it makes challenging the state difficult, and many politically sensitive cases will not even make it to the courts.”
As a fellow of the Australian Academy of Law, Professor Chen is one of only a few senior academics studying Chinese law, and sees any current reform as mainly addressing technicalities and efficiencies.
“The state needs the judicial system as it provides their legitimacy, but there is little hope of serious reform at the moment,” he says. “The judges hope it is something that can improve, and see it as an evolving system they can work with.”