In a broad sense, "China law" should comprise four components: (1) the laws of the People's Republic of China (PRC); (2) the laws of the Hong Kong Special Administrative Region (HKSAR), a former British colony handed back to PRC in 1997, but still employs the common law system; (3) the laws of the Macao Special Administrative Region (Macao SAR), a former Portugal colony which was returned to China in 1999, but has kept the original legal system; and (4) the laws of Taiwan which, as the remaining part of the former Republic of China, has developed a distinct legal system different from that of the mainland after the Nationalists lost the civil war to the Communists in 1949. However, "China law" is commonly referred to as the laws of the PRC, which was constituted in 1949 when the new government was founded. This article will mainly review the legal resources of the laws of the PRC and the laws of HKSAR and Macao SAR in electronic formats, including databases, websites, CD-ROM products, and other non-print materials, but not traditional printing resources. The legal resources of the laws of Taiwan will be discussed in later articles.
Legal family and structure: When Rene David was reviewing the Chinese codification of the 1930s in his Major Legal System in the World Today: An Introduction to the Comparative Study of Law, he concluded that "Chinese law...can be ranked within the family of laws deriving from the Romanist tradition". Today, the laws of the PRC at large degree still share the characteristics of the civil law system rather than those of the common law. As David pointed out, this can be partly attributed to the Europeanization of China during the end of the 19th century and beginning of the 20th century. In addition, this also owes to the fact that the PRC has inherited the Chinese legal tradition: the statutes or codes (written law) were highly valued even back to the Qin Dynasty in 221-207 BC.
Though the Chinese legal system is claimed to be distinct from all other legal systems, jurists of the PRC follow rules of the civil law family. The legislation of the PRC reflects a structural similarity to countries in the Romano-Germanic family, German and France, for instance. Moreover, the Chinese jurists value legal doctrines and hold written law in high esteem; concrete judicial decisions are not officially considered as a source of law.
Source of the laws of the PRC: In retrospective review, the formation and progression of the modern legal system in mainland China had been disturbed by a series of successive political movements from 1949 to 1976. Before the Criminal Code was enacted in 1979, the Constitution Law passed in 1954 was the only statute for 25 years. The governmental operation largely relied on the policies and orders of the Party. The rule of law was not constructed until the massive legislation enactment from the late 1980s, after the Party decided to adopt the "opening-up policy" to develop the market economic system in the late 1970s. Since then, the skyrocketing development of the economy has led to substantial legislative activities that have laid the foundation of the modern legal system. Now, China has established a comprehensive scheme of legislation, including national laws, administrative regulations, and local laws.
Among the sources of the laws of the PRC, the statutes enacted by the National People's Congress (NPC, China's Congress), which includes the constitutional laws, civil codes, and criminal codes, have the highest authority. Administrative regulations by the State Council (China's cabinet) can not be in conflict with the statutes. The decided cases by various levels of judicial institutions are not official sources of law, though decisions of the Supreme People's Court are factually used as a guideline in the practice of lower courts when the provision of law is in obscurity. Local laws and regulations are enacted by provincial legislatures and governments.
However, the Hong Kong Special Administrative Region (HKSAR) and the Macao Special Administrative Region (Macao SAR) are the exceptions from the legal framework in the PRC. Those two special regions were set up directly under the theory of one country, two systems ? by Mr. Deng Xiaoping, the former President of the PRC and the giant of the Party. Right before the PRC resumed the exercise of sovereignty over Hong Kong and Macao, the NPC of the PRC enacted the Basic Law of the HKSAR (adopted on April 1990) and the Basic Law of Macao (adopted on March 1993), in order to keep the state sovereignty but to remain the special economic position of those two regions. From their position and nature, those two laws are national laws, not local laws, therefore, no laws, ordinances, administrative regulations and other normative documents of the HRSAR and the Macao SAR shall violate the Basic Law. At the same time, the Basic Law of the both regions states clearly that the existing capitalist system and the way of life in the regions shall remain unchanged for 50 years, the laws previously in force in these two regions shall be maintained. Hence, the legal system in the regions became a combination of the traditions of both civil law and the common law, and the political scheme turned out to be a mixture of the capitalist system and socialist system.
As a consequence of the underdevelopment of the legal system, the legal research and legal information supporting systems were primitive in China before the 1980s. Unlike Hong Kong and Macao, where the legal information resources are sufficient and information structures are sophiscated, and where the legal research and practice are supported by a sound legal information system, Chinese legal professionals in the PRC were backed up by an exceptional insufficiency of legal resources.
Twenty years ago, there was no concept of a legal information profession in China and few experienced and competent legal information personnel were able to assist with fundamental legal research. Moreover, few legal publishers existed before the 1970s because no systematic legislation and legal research existed. Though legal publishers were enlightened after the effect of the rule of law in the late 1980s, standardized and advanced techniques for organizing legal information, such as codification, indexing, cataloging, and superseding, had not yet been implemented by the legal publishers. Additionally, all legal institutions had only a meager budget for acquiring materials. Even law schools had very scanty funds to amass a legal collection. Back in the 1980s, law textbooks were the primary sources (the sole source for some subjects of law) for legal study. To carry out research in thesis work, a graduate student had to allot a significant amount of time to travel around the country to collect the data and materials. Within the agencies of law enforcement, the scarcity of legal materials was much worse.
For a long period of time, the difficulty in accessing legal information was the major obstruction to conducting legal research in almost every legal institution. Consequently, the construction of a modern legal system was hindered and which directly undermined the realization of the rule of law in China.
The reforms in both the economy and law starting in the late 1970s have apparently impacted the advancement of the law. The demands for a modern legal information system arose hereafter. The exchange of legal professionals between China and the rest of the world has enlarged the vision of Chinese jurists. A large number of Chinese legal researchers and practitioners have been offered opportunities to study law in the U.S. and other developed countries. They have been trained to utilize legal information to engage in thorough legal research.
On the other hand, jurists out of China have also keenly impelled the progression of legal information access in China. The U.S. Committee on Legal Educational Exchange with China (CLEEC), for instance, was one of the first of a small number of organizations that not only provided young Chinese law teachers opportunities to have legal training in the U.S., but also supported Chinese legal educational institutions with hardware, facilities, and training. Westlaw offers free access to both students and faculty at the Beijing University Law School. Ebsco, Dialog, and the U.S. information agencies offer university students free retrieval to their databases as well. Thus, the idea of constructing and developing the legal information system has begun to be embedded into the larger scheme of the modern Chinese legal system.
Furthermore, the rapid development of computer and Internet technology from the 1990s provides unprecedented opportunities to further build up China's legal information system. The Internet has very quickly become a unique vehicle for legal information storage and access in China. Aggressive construction of telecommunication infrastructures by the government has hastened broader Internet access, which results in a revolution of the entire arena of the legal information system.
From Beijing to Shanghai, from the headquarters of leading online services to law school computer laboratories, you can see a similar hectic scenario: young, energetic, and skillful graduates are busy with data entering, scanning or typing, and programming for the production of legal databases. Every founder or organizer of online services or databases is confident in their qualification to build the best databases. Their aim is to catch up to Westlaw and Lexis-Nexis online services. In addition, more and more law schools, legal institutions, and even law firms are proposing to create databases and e-law services. Law publishers have launched e-versions of their publications on the websites one after another. Legal professionals are constructing informal platforms for sturdy telecommunication. On the other hand, the legal databases on China law produced by sophisticated western legal publishers, and the resources on Chinese legal research provided by research groups out of China, supplement a significant amount of information to the current framework.
The endeavors by people in and out of China have led to the emergence of a virtual China law library in cyberspace. The vast availability of Chinese legal resources, including full text law databases (commercial and non-commercial), online legal publications, websites with research tools including library online catalogs, legal services and the jurists networks, is certainly exhilarating. However, these uncoordinated efforts by different forces have unavoidably yielded some negative results (which will be discussed later).
Armed with the technology of the digital age, will China be able to leap over the predicament of legal information access, which was promised on a printing-based information structure, to become a full partner on legal information exchange with other parts of the world?
Commonly, legal sources are classified into two categories: primary and secondary. Due to the complexity and uniqueness of the Chinese online legal resources, I will tentatively classify the online resources on the laws of the PRC into four types and discuss them accordingly in this article. However, the classification of the online Chinese legal resources, the number of categories they should be divided into to, are subjective decisions. For instance, a number of websites collect not only comprehensive links and annotations to other web resources, but also contain databases of full-text laws and/or publish online journals.
Legal Online Services are commercial services that provide computer-assisted legal research (CALR) systems to legal professionals. These services usually consist of comprehensive databases with a systematic updating process, standardized data retrieval systems, and powerful technical support, all of which are operated by professional information institutions. Electronic publications are another type of database that cover specific subjects and topics. While Online Legal Services focus on primary legal sources such as statutes, regulations, case reports, and other core legal documents, e-journals supply the most current briefing on changes in China law. The remaining online resources are grouped as "research tools and law related sites." Though some of these websites may also maintain databases covering a significant amounts of full-text law, the databases usually lack systematic updating and standardization. Thus, they are regarded as mainly providers of bibliographic and directorial information. All three types of resources above are accessed via the Internet. CD-ROM in vernacular are listed as a separate category. Because of the immaturity of the Internet infrastructure in China, CD-ROM is and will continue to be an important medium in Chinese legal information access in the near future, although CD-ROMs have been losing their attraction in the U.S. and other developed countries.
Existing Online Legal Services on Chinese law in general have the features of modern information storage and retrieval systems, although a comprehensive CALR systems similar to WestLaw and Lexis-Nexis have yet been developed.
Research Guides on China Law
Government Agencies and Other Organizations
Legal Publishers and Vendors
Directory of Law Firm and Legal Publishers
Legal Indexes and Abstracts
Because of the low cost but broad dissemination, CD-ROM has been a well-recognized means for legal publishers to convert their publication from print into electronic format. There are over a dozen institutions in both official and private settings, at both central and local government bases, that produce legal CD-ROM. Among them, only a few law databases became Internet-based services; most of these databases are still only in CD-ROM format.
Some of these databases, such as the Information Retrieval System of Law and Regulations of the Peoples Republic of China produced by the Information Center of the State Council, the National Law and Regulation & Government Agency Information Searching System developed by Shanghai law & Society, and the Reprint of Newspaper and Journals including index and full text articles published by People's University of China, have been operating very successfully. Both CEI and Chinalawinfo make their CD-ROMs more comprehensive and attractive to users than their online databases via web access. For example, CEI's 1999 version CD-ROM consists of more than 80 databases with over 60 thousand of legal documents, covering almost all laws and regulations in both national and local level, cases reports, and treaties.
However, even among these acclaimed databases, only the databases created by the State Council are not just well indexed for both the title and contents of the documents, but offer cross-reference between the updated and the obsolete provisions of the law in the retrieval system.
Due to the limitation of the Internet and concerns of being accessed by non-authorized users, the majority of CD-ROM producers have no current plans to port their databases onto the web. However, facing the magnitude of the potential market in cyberspace and under the pressure of competition, this attitude might have to change soon.
In addition to the Chinese domestic CD-ROM production, some western publishers also produce CD-ROMs for their Chinese legal publications, for instance, CCH Australia Ltd. has a CD-ROM version of its China Laws for Foreign Business loose-leaf service.
Coverage of the Contents
The majority of the commercial databases in Chinese vernacular languages described above are supposed to have complete coverage on laws of the PRC from 1949 to present. However, the relative completeness of the coverage of these databases might differ in some aspects. Though both CEI and Chinalaw Retrieving System (CRS or Chinalawinfo) have similar contents and structure, CEI collects more legal documents than CRS. For example, when using the title to search Notary Law in the national law database of both services, CEI gives five hits that include laws and judicial and administrative interpretation, but CRS gives no result. Despite the many efforts taken to make the online databases more complete in covering the primary resources, the coverage of the existing online services are still limited. Secondary resources such as references, directorial information, legal literatures and treatises are not yet available in online databases. Moreover, online services in English usually have much a smaller scope in coverage than their Chinese counterpart.
According to the law of the PRC, legal compilation and electronic publishing should be examined, approved, and then published by a specific governmental agency assigned by legislature. The sole lawful publisher for the national laws should be the Legal Affairs Committee of the Standing Committee of the National People's Congress and the Bureau of Legislative Affaires of the State Council. However, for the purpose of research and study, the compilations of laws is also published by non-official publishers, such as research institutions and commercial publishers. Due to the lack of adequate quality control on legal publishing, the accuracy and authority of the existing commercial online databases are sometimes doubtful. Furthermore, law databases produced by volunteers or less qualified commercial agency also undermine the reliability and authenticity of the online legal resources.
The modern techniques and standards for organizing information have been overlooked in the production of Chinese legal databases. These online databases, even CEI which is one of the top online legal resources, basically compile a cluster of documents together, instead of organizing them into an integrated entity. There are no relationships or cross-references between these documents. For example, no cross-reference is given between a new enacted law and the existing laws or the previous law that is superceded by a new one.
A similar problems can be found in online catalogs. The utilization of online catalogs has freed people from the card catalog, and the Internet has allowed online catalogs to be accessed without the constraints of space and location. However, because of the lack of professional resources on law librarianship, the immaturity of the domestic automation system, and the financial constraints and staff shortages, most law libraries are unable to follow cataloging standards during the retrospective conversion of card catalogs into the electronic format. Though a number of law libraries utilize the USMARC record, many materials are not fully cataloged according to the standards. The problem will be more distinctive and severe when local online catalogs are launched on the Internet. In addition, due to different implementation algorithms of the web interface, some online catalog systems only allow a limited number of results to be retrieved, so users with remote access to the online catalog would not be able to access the results exhaustively. Moreover, there are several subject classification schedules in China, the major ones being set by the Beijing Library and the Chinese Academia of Science. The unification of the various classification systems will be essential in the future for standardized information access and sharing.
The disorganization is not just manifested in the substance of the online databases, but also is reflected in the composition of the databases. A number of online services strive to create a "one-stop shopping mall" for Chinese legal information, however, the services have lost their simplicity of layout and appear to be a poorly managed warehouses. Also because of the access problem for the vernacular language, one popular approach is to display the heading in the vernacular language as images in addition to other picture files. This, however, makes the document extremely big and the retrieval process extremely slow.
As the other aspect of weakness of the information organization, the primitiveness of searching capabilities undermines database retrievals. The major online services in Chinese can only be searched using the title of the laws, the date of promulgation, and the legislature. The contents of the law are not indexed and therefore not searchable. For example, both CEI and CRS online databases can only be searched using a combination of the name of the documents and the date of enactment. No keyword search of the contents is available, nor are advanced Boolean search and nature language search algorithms implemented, despite the fact that both services provide complete searching functions for their CD-ROM products.
All legal resources in Chinese on the web can be searched via browsers such as Netscape and Explorer. Understanding the coding systems of the Chinese characters is the key to configure the right setting to access vernacular databases. There are several different systems for coding Chinese characters, such as Big5, EACC, GB, HZ, and Unicode. Generally, databases based in Taiwan and Hong Kong are coded in traditional Chinese characters using the Big5 system and databases produced in mainland China, Singapore, and elsewhere adopt the simplified Chinese characters using the GB coding system. EACC is a coding system for Chinese, Japanese, and Korean characters, which is mainly used by ILS, for instance, INNOPAC. The HZ code system has the same standard as GB, and is widely used for web-based electronic journals or newspaper. Unicode is not a commonly used code system.
Web browsers usually have plug-ins for reading Chinese characters. However, since many documents are encoded using a non-standard code or a mixture of several code systems, in order to have the input capability and to ensure the quality of downloading the sturdy searching results, a Chinese reader interface is usually needed, such as the simple reader Unionway or more advanced applications of the Chinese reader interface, such as Cstar, Twinbridge, or NJStar.
Output or Downloading
Although downloading from online databases can be carried out with a Chinese reader application, the buggy characters due to non-standard coding are sometimes unavoidable. Reload or refresh is needed after changing the configuration for different Chinese coding systems. Downloading directly to the printer demands a printer be equipped with a big buffer, and that is usually time consuming.
The idea of establishing a Chinese CALR system was initiated in the 1980s by the Law Department of Beijing University. The goal was to create a Chinese version of a Westlaw-like database on Chinese law and to provide comprehensive resources for legal research. The excellence of Westlaw and its peers has influenced Chinese jurists so deeply that the Westlaw pattern has been regarded as the model for Chinese online legal services.
Because of the deficiency in legal resources in the 1980s, this Eastlaw Myth was beyond the imagination of most Chinese legal professionals. The swift progress of the construction of the legal information systems in recent years brings the hope of the realization of the myth. However, optimistic people might overlook one fact: the new cyberspace medium can accelerate the construction of the legal information system in China, but it cannot change the nature and the substances of the databases. The online resources are merely the reflection of the legal sources in print format. Therefore, the central issue is really how to establish a legal information system rather than how to establish an online legal system. The following perspectives are crucial in the realization of a modern legal information system in China.
First, the standardization in all aspects of the legal information process should be stressed. Systematic codification will be the most important step in consolidating the legislation (written law). For legal publishing, instead of purely compiling codes, statutes, regulations, their focus should be on taking up more research tools for primary resources, such as indexing and digesting. These research tools commonly adopted by the western publishers have not been set up in Chinese legal publishing.
A current awareness services, another important part of the legal information structure, should be accentuated. In addition to the initial efforts of Law-Online and Chinalawinfo to create a legal periodicals index, the Reprint of Newspaper and Journals published by the People's University of China has also appended an index for legal articles. However, the service has limited coverage. Furthermore, this publication has a major problem: the Reprint does not have the permission of the original publishers for reprinting. Some leading law journals have been protesting this infringement of their copyright. Thus, the future of this service might not be bright.
Additionally, as an outcome of the advent of the Internet, the globalization of information exchange and sharing will result in more and more fusion of the common law and the civil law system. Therefore, Chinese jurists should keep an open mind to appreciate the virtues of other legal tradition, for instance, considering formalizing case law as a legal source in China. At the least, systematic case reporting and analysis should be emphasized for the moment in the construction of a modern legal information system in China. The online version of Taiwan statutes sets a good illustration: for the articles of the statute, the online database provides not only the legislative history and the judicial and administrative interpretation, but also the judicial decisions.
Last but not least, the government ought to maintain consistency in the policy of legal information storage, dissemination, and sharing. The government is the largest producer of legal information in China and provides official resources on regulations, rules, interpretations, statistics, new trends, and other information on various aspects.
To the government, the Internet is a knife with two blades: on one side, it is medium for the government to effectively store and distribute governmental information to the public and to improve the efficiency of governmental operation; on the other side, virtual access means an increase in the difficulties for the government to control and censor information dissemination. Facing such a dilemma, the Chinese government has to weigh the gains and losses.
A recent regulation of the PRC on the Internet, Administration of the Maintenance of Secrets in the International Networking of Computer Information Systems Provisions, that was promulgated by the State Secrecy Bureau on January 25, 2000, reflected the desire of the government to control Internet access. Thus, whether the construction of the legal information in China is able to move beyond the border is an uncertain issue. If the progress of building a modern legal information system in China is hampered by governmental control, it will be a great pity for the Chinese legal society.
The original version of this article is published by International Journal of Legal Information, Vol.29:1 (2001).