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The World Bank Legal Review
allows lawyers to meet with clients without the presence of police officers. Lawyers have an obligation of confidentiality but are limited by the fact that theycannot keep certain information secret (Article 38 of the Lawyers Law). In addition, a lawyer can be condemned if he or she influences a client not to confess to a crime (Article 38 of the CPL). In China, the absence of a guarantee to the right to a fair trial is a serious issue, especially because the right to remain silent is not clearly established. The CPL stipulates that evidence obtained through torture cannot be used as grounds for a verdict. However, the law emphasizes that accused persons must give “truthful answers” (rushi huida) and that “resistance to answer will be treated severely” (kangju congya). The March 2012 revision of the CPL exhibits a punitive philosophy, mainly based on the traditional Marxist notion of crime, and the goal of maintaining public order. (There are more than 60 references to the terms “raison d’Etat” or “state secrets” in the revision.) A lack of empowerment by the judges within the judicial system, in contradistinction to the role played by the public security forces, emphasizes the effectiveness of exceptional police procedures on ordinary judicial procedures. Legal guarantee of ownership rights is a fundamental characteristic of a state that has rule of law. China’s legal system does not provide legal certainty in this regard for the following reasons: the system of ownership is extremely complex in China and public ownership often trumps private ownership; the lack of legal quality (precise rules) leads to legal uncertainty; and the judicial system does not have a strong authority to regulate chaotic legal norms. In 1949, civil codes enacted under the previous, Nationalist, regime were abolished. Land reform policies in 1950 resulted in massive and violent land expropriations and the abolishment of the notion of private property and ownership rights. The land collectivization that took place during the Maoist period led to the replacement of the notion of property rights (suoyou quan) with “a system of property” (suoyou zhi). After the Cultural Revolution, the abolition of the people’s communes allowed a growing recognition of the notion of “real rights,” espoused by administrative regulations specifying rules of transfer and the attribution of rights. In 1986, the General Principles of Civil Law (Minfa tongze) defined, for the first time since the Kuomintang’s codes, the notion of property rights. The Rural Land Contracting Law of 2002 (Nongcun tudi chengbao Fa) clarified the rights and obligations of the rural household and the agricultural collective based on a contractual system (chengbao zhi). In 2007, after a decade of consultations and debates, a Property Law was adopted by 96.9 percent of the 2,889 legislators of the NPC, with 53 delegates opposing and 37 abstaining. In 2004, a constitutional amendment specified that “the lawful private property of citizens is inviolable” (Article 13). Yet, according to the Property Law of 2007, “the state may in the public interest [ gonggong liyi] expropriate or take over land for its use in accordance with the law and provide compatible compensation [xiangying buchang]” (Article 10, paragraph 3). Because the