China recognizes that there is now a global economy and China wishes to become part of it. This means that its law not be such as to enable China to take its proper role in the globalisation process. It is important that these laws fit within Chinese culture to ensure that such as do not become irrelevant. This means they must become part of China's social and business fabric and its relations with the outside world. Of course, it is also important that there be an independent judiciary and legal profession.
The meaning found in Cambridge International Dictionary of English about the term "globalization" refers to "the increase of trade around the world, especially by large companies producing and trading goods in many different countries" and "when available goods and services, or social and cultural influences, gradually become similar in all parts of the world"1. To answer the question, this essay will define "globalization" in a limited sense by focusing on the processes of convergence in economic and legal realms of People's Republic of China.
To explore China's attempt to follow the globalization process, it is important to examine its current social and legal structure as well as the underlying problems. This essay will try to present these issues through three aspects: the judiciary structure of the Chinese legal system; legal profession and tis underlying problem as well as the contemporary Chinese law. Chinese legal system The following part will start by asking the question "who makes law in China and who gets benefit?
" It will also try to present some deficiencies in the current Chinese legal system and look at how these would be changed and affect its globalisation process. One feature of the Chinese legal system that differs from Western is closely associated with the idea of "separation of power". More specially, there is no doctrine of separation of power in Chinese legal system. 2 This distinctive feature is a result of China's unique political environment. In China, the most powerful and also the only single political party is The Communist Party of China (the CPC).
In other words, the CPC is dominant political party in China. 3 On its face, the administrative, legislative and judicial power is said to be exercised by different government organs. Yet, majority of these important positions are held by party members, which inevitably challenges this so-called notion of "separation of power" in China. 4 By examining the relationship between the CPC and different government organs as well as its power execution in details, there further reveals a contradictory notion of "separation of power" between theory and reality.
In theory, to respect the independency nature of each power, the CPC does not have direct power to interfere with any of the legislative, administrative nor the judicial organs. On the other hand, while each of the responsible government body is respectively responsible to the CPC, the CPC in fact controls the all the organs, including the legislative system. 5 Therefore, it can be said that all of the powers are interrelated when it comes down to the CPC, and the separation of legislative, administrative and judicial power could only be interpreted as achieving at a functional level as minority view suggested.
Western critics often argue that there is a lack of "rule of law" against Contemporary Chinese legal system. In Lewis's argument, he summarised some of the reasons as follows: a shortage of professionally trained legal workers; lack of "stare decisis" (precedents) in Chinese legal system; lack of legal conciseness among Chinese people as well as the government, the CPC's superior position over law.
Furthermore, the lack of a reliable rule of law had also created skepticism on issues, such as governing Chinese behavior in international commerce, which once lead to some serious concerns about China's readiness for WTO membership. 8 The following question is how China should reform its judiciary system so that meanwhile Chinese law-making can still maintain the balance between its culture and the globalization process. To explore this issue in depth, it will be necessary to firstly look at the existing conflict between these two ends. The first issue come to mind is about the function of law.
In China, due to historical reasons and its Communist System characteristics, law functions merely as under controlled by one party, which is the presence of a still nearly totalitarian government. 9 Secondly, in reality, Chinese law tends to be more like an ideological ideal rather than presenting local people's need. Issue of freedom of speech and its allegation in the constitution presents serious conflicting ideas in reality. 10 Then the question comes down to whether those who make the laws are representing people's will or merely use its legislative power to secure its own political domination?
When law is designed to protect individual's rights and reflect people's will, individual's awareness of the law becomes of great importance, both in theory and practice in the development of the law. Although in recent years, an increasing number of Chinese citizens began to realize seeking legal advice to solve problems. In general, due to the massive population of people where a large proportion of which comprises people living in rural side who lack education and training; legal consciousness among Chinese citizen is still a very weak point.
Therefore, the following question is which of these takes priority, the globalization process or the fundamental cultural consciousness? Should the Chinese government prepare themselves for the globalization process first or its people who are direct beneficiaries of the process? Which is to give up and how to compromise? Should encouragement of legal culture take over China's urgent assertion into the globalization process? One thing is definite, that is there will be a long way ahead for China to conform to the globalization process along with progressive changes.
