Document Type

Article

Disciplines

International Law

Abstract

"The Supreme People's Court, which has for the past 35 years issued its decisions through restricted channels, is casting off its veil of secrecy."' The above statement about the publication of Zhonghua Renmin Gongheguo Zuigao Renmin Fayuan Gongbao, the Gazette of the Supreme People's Court of the Peoples Republic of China (the "Gazette") appeared on the front page of China Daily on May 26, 1985.1 For a long time, many Western observers have criticized the Chinese courts for their failure to publish the laws on which they relied in their decision-making process. Accordingly, these observers concluded that China was a state without law.3 After China began its "Open Door" policy in 1978, nearly every Western legal scholar complained about "internal documents" (neibu wenjian) which were critical to understand and assess the secrecy surrounding the Chinese law and its administration.4 Likewise, businessmen were baffled by positions taken during negotiations wherein Chinese officials made claims that appeared to come from nowhere.8 As one scholar has noted, "[T]he almost comical scene [was] of a Chinese negotiator peering down into his lap to consult a document he was not allowed to show to his foreign counterpart was frequently replayed. .. . "

In a Communist country such as China, the importance of something is often suggested by the secrecy surrounding it. Yet, the secrecy surrounding the Gazette of the Supreme People's Court (the Court) has not drawn significant attention from either Western or Chinese legal scholars. Western legal scholars seem to focus their attention on the National People's Congress which is the Chinese legislative body.7 Most legal scholars do not even mention the Gazette when they discuss the decisions of the Court.8 One scholar who has mentioned this publication is Chief of the Far Eastern Law Division, Tao-tai Hsia.0 While he admits that the Gazette is "probably the most important new publication on law," he leaves many significant questions unanswered, such as who writes the Gazette and whether its published decisions will be cited by judges in their decisions. Moreover, Tao-tai fails to analyze the Gazette's role in the judicial process, simply stating that the function of the Gazette is "unclear."'" In addition, few Chinese legal writings havesystematically examined the Gazette. Only "On the Highest Judicial Interpretations of the Criminal Law in China" written by Zhao Bingzhi and Wang Yong briefly discusses it." Unfortunately, due to the limitations on freedom of speech in China, these two authors did not deeply explore the problems with the Gazette. For example, Zhao and Wang mentioned the problem with the Court's legislative interpretation, a function of the Standing Committee of the National People's Congress, but they avoided answering the critical question: how could such a problem occur? 2 This article will attempt to remove the Gazette's "veil of secrecy" by a thorough analysis of its history, functions, and impact on Chinese law.

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