Linking systems

'RULE OF LAW' IN CHINA AND IN JAPAN

By Zhang Yong

About a hundred years ago the modern western legal system was introduced into
Japan. Between 1890 and 1898, the Meiji Government drafted codes of civil law,
commercial law, criminal law, the law of criminal procedure, and the law of
civil procedure after the examples of France and Germany. In those days, the
purpose of introducing the western legal system was to force western countries
to abolish extra-territoriality, and it simultaneously served to mark the
start of the modernization of Japan. Another hundred years later, China began
formally to adopt the western legal system, just as Japan had done a century
before. There had been earlier attempts to introduce the western legal system,
at the end of the Qing Dynasty and at the time of the Republic of China (on
the mainland), but each time it did not succeed in taking root. Between 1979
and 1994, China enacted many basic laws, for example the criminal law, the law
of criminal procedure, the law of civil procedure, the civil law (the general
rules), commercial laws, and administrative laws (administrative litigation
act, state liability act, and others). The principal background to the
movement to introduce the western legal system was the long cherished desire
to develop the economy. In China, the movement to introduce the western style
legal system is said to be "to improve the condition of the socialist legal
system". With reference to administrative law, it is said to be " to carry out
administration by depending on law".
The purpose of this research is to investigate the characteristics of Chinese
style "legalism" in the field of administrative law by comparing it with the
Japanese system. In order to do this, I will begin by studying the differences
in the governmental structure between both countries. How do they enact laws?
How do they issue administrative rules or regulations? When the administrative
rules or orders violate the constitution and/or existing laws, what kind of
system is there to correct this? Secondly, having answered these questions,
I will try to compare the method of administration in both China and Japan.
Special attention will be paid to the fact that in China administration is
carried out by means of "powerful administration action" which includes
administrative punishment, whereas in Japan administration is dominated by
"powerless administrative action", such as administrative guidance and
administrative plans. The "powerful administrative action" can be the target
of administrative litigation, whereas the "powerless administrative action"
cannot. Thirdly, in both China and Japan, there are administrative remedy
systems, including the Administrative Litigation Act, the Administrative
Inquiries Act, and the State Liability Act. (In Japan, there is also the
Administrative Procedures Act). I will try to analyze the theoretical problems
and the practical effects of the Administrative Litigation Act in both China
and Japan, and by doing this reveal the great difference between the Chinese
and the Japanese system. 
Finally, we can conclude that the "Rule of Law" has a completely different
meaning in each country, and to a certain extent that the Japanese version of
the "Rule of Law " again, follows the path that Japan took a hundred years
ago; it has to deal with two problems simultaneously. One is to achieve the
goal of founding a modern legal system. The other is to have to lessen the gap
between law or administrative orders and the people under a system of the
concentration of power. To do so, China will have to develop a new style of
administrative law.

Zhang Yong (1961) studied Japanese language and literature in China and spent
seven and half years in Japan to research Japanese and Chinese public law at
the university of Okayama and Nagoya. In July 1994, he obtained his PhD in law
for a thesis entitled: "The Emergence and Development of Judicial Remedy Law
in China". He has published extensively on the Chinese and Japanese systems
of administrative law.