WTO AND CHINA 'S LEGAL SYSTEM (2)


Sibao Shen


Ⅲ .3 A profile of law making and revision of China ,s laws and regulations

Up to now, notwithstanding the huge amount of work facing China ,s legal institutions, China has made substantial progress in this regard. The focus of such a large-scale law making and revision work includes such areas as investment, foreign trade and intellectual property rights and so on. Up to now, hundreds of pieces of laws and regulations and administrative rulings having an impact on foreign-related matters, both at the central government, level and local governments,, have been made, amended or abolished.

With regard to investment, TRIPs, GATS, TRIMs and ASCMs are WTO,s chief agreements regulating each member,s control on foreign investment. Such agreements provide China with models after which China has started to build its own management of investment laws. As to market access given to foreign investment, certain measures and regulations have been in existence for many years to attract or discourage foreign investment. With WTO membership , China is going to open up more to the outside world and is dedicated to creating a better environment for foreign investors, including the legal environment. In essence, the efforts are directed to make foreign investors feel like at home and they enjoy national treatment. For example, China ,s commitments to gradually phase out restrictions imposed on investment include the elimination of requirements relating to foreign-exchange balancing, trade balancing, local contents and export requirements 12 . The national government has already established the schedule of such phase-out. Another example is the control over investment areas, as some areas are specially tailored to attract foreign investment, while some other areas are not yet ready 13 . Certain areas like agriculture, infrastructure construction are favored targets for foreign investment. Through these measures and deregulations, the progressive liberalization of the once onerous requirements of foreign investment could be realized and a better environment would emerge for foreign investment. #p#分页标题#e#

WTO and western powers place special emphasis on market access to trade in services. As the services areas are a weak link in China ,s overall economic map, China is still cautious about the phrase-in of foreign investment in this particular area. The restrictions imposed on the foreign investment were quite strict, with the result that in certain investment areas, foreign direct investment was totally excluded. However, as per the Protocol, China has been on the way to lift those restrictions and allow more foreign investments in more areas that were exclusively left to domestic investment. Recently, foreign investment has started to come into such areas as telecommunications, banking industry, insurance, wholesale and retailing, legal service, investment institutions, advertising industry etc. through news reports, we could sense that foreign enterprises of these areas are particularly eager to cut through China,s huge domestic market and garner profits. What is amazing is that now they are welcome.

Besides, China has also amended related laws, including Law of the People,s Republic of China on Wholly Foreign-Owned Enterprises, Law of the People,s Republic of China on Chinese-foreign Contractual Joint Ventures, Law of the People,s Republic of China on Chinese-foreign Equity Joint Ventures and their implementation regulations and so forth. The
12 In the Report of the Working Party on the Accession of China (WT/ACC/CHN/49), the Working Party noted these commitments in para.203

13 Actually, MOFTEC regularly updates its list of foreign direct investment guidance principles, which could be found in its official website: www.moftec.gov.cn . This website is an important source for trade policies and issues.
objective is to delete those provisions found to be in contravention of WTO rules and to amend some provisions which contradict the normal international customs, such as technology import restrictions and arbitrary pricing policies. Another focus is to accord full national treatment to all foreign nationals and enterprise alike. For example, many foreign banks and insurance companies would be allowed gradually to engage in some key banking areas which were once closed to them. The amended laws and regulations will do more to promote the inflow of urgently needed foreign capital into China and boost China ,s participation in international competition. Indeed, against the backdrop of worldwide economic slowdown, China not only keeps her position as the largest developing nation destination for foreign direct investment but also is expected to be the world,s No.1 destination for foreign direct investment this year, surpassing U.S. for the first time in history. The total foreign direct investment this year is expected to amount to 50 billion U.S. dollars 14 . Such an unexpectedly good situation is the evidence of the effectiveness of the laws and regulations related to investment, because they provide strong incentives to foreign investors and attract them to invest with more confidence and less worries. #p#分页标题#e#

As to the legal reforms in international trade, administrative regulations in relation to goods trade, technology import % export have been released. The result is that China ,s legal system in this field is characterized by comprehensiveness, transparency and ease of application. Generally speaking, such laws and regulations result in greater deregulation and more trade liberalization which are in line with WTO values. In terms of goods trade, free trade is the rule, but there are certain exceptions. China still maintains the right to take emergency actions in times of crisis 15 and relevant government bodies enjoy certain discretionary power to so do. As for technology trade, special attention is paid to some particular problems arising under this category, such as the issue of restrictive business practice, in order to defend the interests of weaker party in a technology transfer contract. In this respect, competition law is already in place to create a level playing-field for all competitors without regard to their nationality.

One of the great changes is the amendments made to antidumping, countervailing duties and safeguards measures. Great efforts are made to make trade remedies provided for by WTO-anti-dumping, countervailing duties and safeguards measures—parts of domestic laws and regulations, with the view to providing appropriate remedial means for injured domestic industries and to penalizing those unlawful trade practices. In this regard, both procedural and substantial issues are fully addressed 16 . Now China treats these three trade remedies separately instead of combining them into a single piece of law. New versions of regulations on anti-dumping, countervailing and safeguard measures have been released. They contain more specific provisions and certain confusions are clarified. Besides, certain specific rules guiding the application of these trade measures 17 have also been released recently. Actually, all these regulations are modeled after the relevant agreements within the WTO legal system. These changes have taken place as a result #p#分页标题#e#
14 Source: www.people.com.cn , a website reflecting the official position

15 This year witnessed the first safeguard measure taken by China invoking her own Safeguard Regulations. The target in this safeguard case is steel products from all exporting nations, which was largely taken to counter the U.S. safeguard measure against steel that might force surplus products of other exporting countries to overwhelm China .

16 In contrast, in the Regulations of 1997, s version, the anti-dumping and countervailing issues were treated together, with the result of certain confusions and lack of easy application.

17 For example, MFOTEC issues a series of provisional regulations on certain specific issues in these areas. Some issues addressed include: information disclosure, on –spot investigation, price undertakings, questionnaires investigation, anti-dumping duty refund etc. all the updates can be found in the website:
of China ,s determination to strictly follow the WTO rules in this regard. From the effective date of these Regulations, cased arising thereof shall be treated in a WTO-consistent manner, thus the interests of all parties can be accorded equal protection to the maximum extent possible. Of course, such trade remedies have the bonus of according protection to injured domestic industries.

Turning to the issue of intellectual property protection which is the subject of TRIPs agreement, China has also demonstrated a constant willingness to strengthen and to enforce laws and regulations afforded to intellectual property rights. Copyright, trademarks and patent laws and regulations concerning computer software protection are all newly amended or promulgated to give priority to this issue. No doubt, improvement in this respect will tremendously help China better implement her obligations under WTO and create a better environment for intellectual inventions. Actually, China has commenced the preparation works before the accession and worked even harder after the accession. From the date of accession, great achievements have been accomplished in her legislation work and other areas. Such a positive attitude to her commitments has largely eliminated the worries felt by some member states. The eventual objective of these endeavors is to bring China ,s protection of intellectual property right up to the level of the world and eliminate rampant infringements. But a word of caution may be appropriate here, that is, there is a long way to go before fundamental changes can come true finally in this regard as intellectual property right up to the level of the world and eliminate rampant infringements. But a word of caution may be appropriate here, that is, there is a long way to go before fundamental changes can come true finally in this regard as intellectual infringements are still a headache for the government. #p#分页标题#e#

In addition, TRIPs also helps China make laws to treat some kinds of intellectual property rights that have been not given the attention enjoyed by trademarks, copyrights and patents. This in itself is an example of the WTO,s role in helping China build China build a comprehensive legal system to correspond to international changes. To the extent of protection coverage, efforts have been made to include those rights covered expressly in WTO into China , such areas including integrated circuit layout design, industry designs, geographical indications, plant variety protection etc. Such new areas have been rarely heeded before in China as they are just considered to be branches of the chief intellectual property rights. Only with WTO,s membership are these quite novel areas addressed and added to the list.

Some examples are appropriate here to demonstrate the work finished. In the newly-revised Copyright Law, more attention is given to how to safeguard the interests of foreign nationals according to the relevant parts of international agreements and how to enforce the laws. Indeed, it is safe to say that the revised law is in line with WTO,s emphasis on trade in intellectual property protection which is a pillar of the WTO legal system. Similar actions are also taken to bring changes to the trademark and patent laws. Besides, efforts have been make to create relevant executive regulations with a view to giving guiding principles to those administrative agencies for easier enforcement. This reflects the emphasis placed on these trade issues which used to be largely left to the care of administrative agencies. Now law has taken the helm. No doubt, these laws and their executive regulations are in line with the requirements of WTO and are bound to bring changes.

Now, all kinds of infringements are subject to heavier penalties as the legal framework has been roughly established and remedies provided for, which is a powerful deterrent force to those unscrupulous businessmen. Concrete actions have been taken to enforce the laws. Administrative #p#分页标题#e#
agencies empowered to enforce the law have been making hard efforts to eliminate any unlawful offences. Legal press and newspapers often have reports about the enforcement actions 18 . What deserves special attention here is the campaign against the pirated computer software and audio-video products. As the pirated computer software and audio-video products often flood the market and displace the original products, it has become a long-lasting headache in China . Unscrupulous businessmen make huge profits out of the illegal production of pirated products at the expense of the original copyholders. Besides, a lot of trade disputes arising from the dispute over the so-called insufficient protection of copyright protection in China have happened between China and U.S. Several years ago, a dispute in this regard almost let U.S. to invoke its Special 301 Clause to revenge against China and a trade war was almost within sight. Only through last-ditch efforts by the two governments was a trade war averted. Therefore, this issue commands special sensitivity and importance. However, after the accession of China ,s into WTO, more efforts have been made to address this issue. Enforcement agencies have been working hard to crack down against those illegal dealers. In the coast areas of China , dozen of production lines dedicated for the production of pirated products have been seized and confiscated. This has won phrase from foreign governments and high-tech enterprises. Generally, as the trade in intellectual property rights is only to start to develop, stringent protection is called for and China has just been on the way to fully implement it.

In addition to the above-mentioned changes, more laws and regulations have been put on agenda for legislative bodies and administrative agencies to deliberate. To regulate the market economy, revision of the corporate legal system has gone onto track and laws and regulations relating to corporation, bankruptcy, merges are highlighted for research and revision. On the other hand, attention has been paid to anti-trust, commercial secrets and credit laws and regulations. As can be inferred from these works, the legal environment in China since she joined WTO has been improving in the right direction and there is every reason to believe that the situation will continue to do better. #p#分页标题#e#



Ⅲ .4 The judicial review system 19 in perspective

WTO places a special emphasis on the judicial review system, and that it must be independent of any other outside intervention, particularly of the powerful administrative agencies which usually supervise trade issues. As has been stated, a balance must be established and maintained to keep a watchful eye upon any possible abuse of power by the administrative agencies. Such a balance is especially needed in China .

As to the issue of independent judicial review system in China the People,s Courts of China have been the driving force behind reforms as the issue has been put on the forefront of their agenda and they serves as active players. The idea of independent judicial review is much more than a matter of mechanism; it really touches the innermost part of a legal system. Basically, the judicial review is designed to ensure that no agency has the sole authority or power to adjudicate any case and to give interested parties in any case the opportunity to have recourse to appeal or other remedies. The existence of such a system is deeply rooted in western ideology and has found
18 http://www.rmfyb.com is a website sponsored by the People,s Supreme Court of PRC. In side the website, reports regarding specific examples of enforcement of intellectual property rights can be found in great numbers.

19 Part Ⅰ ,2(d) of Protocol on the Accession of the People,s Republic of China requires China of establishing and maintaining a judicial review system which is designed to accord full opportunity to interested parties in trade disputes and cases so as to allow them to defend their interests and to ensure a legal agency in operation independent of any administrative agencies.
expression in WTO. However, judicial review of trade issues is not a full-fledged idea in China as MOFTEC-the administration in charge of trade affairs-had discretionary power to decide trade affairs in the past. Therefore, the establishment and maintenance of such an independent system assume great importance for both the judicial and the administrative systems, as from the date of China ,s accession onto WTO, they would enter into a relation of cooperation and of checks and balances against each other. The once powerful administrative power shall be subject to new supervision exercised by the judiciary. #p#分页标题#e#

Recently, the People,s Supreme Court took the initiative to do the work. After much research, several pieces of judicial explanations have been released with a view to offering guiding principles for the adjudication of trade cases. The three newly released judicial explanations respectively concern the general principles in international trade cases, anti-dumping 20 and countervailing duties. In the Rules on Certain Issues of the Adjudication of International Trade Administrative Cases, explanations of issues such as coverage, jurisdiction, cause of action, applicable procedure law and so on are expressly provided for. This symbolizes a new stage when courts for the first time step into trade issues to serve as a check and balance against the administrative agencies. Thus, interested parties disputing the decisions by the administrative agencies would enjoy another security device to fully protect their legitimate rights. No doubt, this would fundamentally change the old system and open up a new system in which courts shall play a more active role in administering trade cases. On the other hand, two judicial explanations regarding specific rules applicable to anti-dumping and countervailing cases have also been issued. They are specific examples of judicial intervention in international trade cases, especially given the increasing anti-dumping cases which command a lot of attention in the current stage. This piece of explanations has focused on issues in administrative trade cased such as causes of actions, the scope of parties that may file lawsuits, jurisdiction etc. In these explanations the courts of competent jurisdiction have been given wide power to look into issues of facts and procedures and to decide whether the administrative agency in charge has correctly interpreted and applied the laws and regulations. Such a structure is quite similar to U.S. system in which the Court of International Trade scrutinizes the Commerce Department and International Trade Commission. Such changes supplement the Regulations on Anti-dumping and make it easier to be applied. The day when an administrative agency had the final say in international trade matters were gone forever. #p#分页标题#e#

However, such changes are just to develop as the judicial review system in China is still an idea that is gaining slow acceptance. In the past, as an aftermath of the time when “rule of law ”was ignored and administrative power supervised most affairs, courts generally remained on the sidelines concerning international trade issues which were traditionally within the hand of administrative agencies. Of course, no one would be willing to give up power and share it with others. In the past, administrative agencies in charge of trade had the final say in trade matters, often to the exclusion of other institutions. It followed naturally that interested parties would feel insecure if they would lose in a case, as virtually there was no other authority to which they could resort for help. Therefore, there were many rights not covered by laws and regulations. However, with WTO comes the judicial review which is designed to fill the gap and offer another safety valve to allow the interested parties to have their interests fully protected.

20 Anti-dumping cases have come to prominence in the past few years in China as a measure against injuries on domestic industry done by dumped imports. Such cases number in dozens in China annually. It is expected that anti-dumping cases will continue to grow. Up to now, there is no countervailing duties case yet.

Looking into the future, the establishment and maintenance of such an independent judicial review system have far-reaching influences going beyond the mere scrutiny of the trade issues. It is widely expected that the introduction of this system would get courts involved into the scrutiny of the conducts of all administrative agencies. This would fundamentally change the operation of the Chinese administrative system and may possibly lead up to a relation of checks and balances among the different branches. This change is in line with the requirements of “rule of law” which dictates the said relation. More importantly, this is a shock to the existing powerful administrative branch who thinks little of courts when they issue orders. They now have an outside force to scrutinize themselves. #p#分页标题#e#



Ⅲ .5 The overall impact of transparency requirement

Another huge challenge confronted by China is the transparency requirement that is a pillar of WTO mottoes. All members of WTO are requirement that is a pillar of WTO mottoes. All members of WTO are required to publish promptly laws, regulations, judicial decisions and administrative rulings having a bearing on various components of international trade, such as rates of duty, taxes or other charges, import & export restrictions etc 21 . Besides, they shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the said matters 22 . Such requirements carry heavy burdens upon the member states.

In China ,s case, administrative agencies in China are not yet fully used to this requirement, as traditionally, policies and government orders often carry more importance in relation to specific trade matters. Sometimes, a piece of official document is much more important than a piece of regulation as the bureaucracy would usually follow the former. Such practice is of course done internally and in secrecy. In other word, outsiders usually do not have access to the inside information and they are clearly at a disadvantage. Such a situation often renders rules useless and makes impossible predictability of laws and regulations. What is even worse, it often makes the impartial administration of laws and regulations less possible, as some may be favored and others disfavored. Lack of transparency is a major concern for many foreign investors who demand equal access to government orders and information. Although since 1991, efforts have been made to publish laws and regulations related to international trade and the situation has improved somewhat, the tradition dies hard and problems arising from this question persist. Now, the transparency doctrine of WTO will gradually force the administrative agencies to increase the transparency of their work and thus a level playing-field in this regard can be within sight shortly 23 . #p#分页标题#e#

However, WTO,s requirement of transparency does not end here. Practically, transparency also requires that judicial decisions and judgments having a bearing on trade issues be published so as to allow foreign governments and businessmen prompt knowledge. For example, the TRIPs agreement provides that laws, regulations, final judicial judgment relating to intellectual property rights in terms of its scope, acquisition, enforcement and protection be published by the member. Of course, such a requirement of China ,s judicial bodies is quite stringent, as in the past, few
21 GATT1994, Article X (1).

22 GATT1994, Article X (3)a.

23 Actually, the Central Government of PRC is having a campaign to build an internet government with a view to providing easy and instant access for all information seekers. Most government agencies in charge of trade matters have established their own websites in which regular updates can be found regarding trade policies and orders and announcements, etc. They are an important source of information for businessmen and researchers alike, such as www.moftec.gov.cn


courts would make public their judgments. However, the People,s Supreme Court of PRC has already made it clear to all levels of courts in China that all judgments shall be made public gradually except to the extent that the publication of such information would create undue hardships or be against public interest. The importance of transparency requirement of the judicial decisions is that it can make sure that the judiciary system itself be put under scrutiny by the general public. Such a system is expected to ensure justice to the greatest extent possible. However, it takes time to see the full implementation of such requirements, given the fact that China ,s judiciary system has been used to keeping itself from the sight of the public.



Ⅲ .6 The uniformity of laws and regulations.

Another issue that demands attention is the uniformity of laws and regulations. It refers to not only uniformity in legislature but also that in application and enforcement. China is a vast nation with a huge number of judicial areas at all levels. This means that it would be usually hard to keep the laws and regulations uniformly applied throughout the nation, as conflicts and differences are an inevitable result of different economic development levels in different areas. For example, trade issues command a very high level of attention in Beijing and Shanghai ; however, efforts have to be made to educate courts in western regions to reach the same level. Therefore, China faces a tough situation of how to ensure that courts and administrative agencies all over China enforce laws and regulations in a manner which can take into account both the uniformity of laws and regulations and the development levels of that area. In other words, a delicate balance must be maintained in this thorny issue. #p#分页标题#e#

Approaching this issue from different facets, uniformity can only be arrived at with the following ways. Firstly, legislation shall be kept uniform. In China ,s case, this would require legislative bodies at all local levels shall first refer to the laws and regulations made on the national level when they make their own regulations and provisions. More importantly, they must ensure that their own regulations and provisions shall bear differences only to the extent that they are not in conflict with the national laws and regulations. Given the huge number of provinces and cities in China and the complexity of all the laws and regulations, this task is not so easy. Secondly, the uniformity shall be also observed in terms of application of laws and regulations. The fact that WTO puts forward such an idea is in line with the basic aim of creating a fair and complete market economy system.

In relation to trade issues, the Foreign Trade Law of PRC of 1994 also provides for this principle, i.e. China shall apply the foreign trade system on a uniform basis and maintain a fair and free foreign trade order in accordance with law 24 . Therefore, the uniform application hereof shall be applied to the whole customs territory of China . However, compared with the uniform legislation, this task is even more difficult as the local protectionism is still a serious problem. Many places erect protectionist measures to shield the local industries from the competition of industries in other areas in China and from foreign imports 25 . Often such protectionism finds expression through judicial bodies and their enforcement actions. No doubt, such practice is a fatal threat to the said application and to the national treatment enjoyed by imports. What,s more, such
24 Article 4, the Foreign Trade Law of PRC.

25 Indeed, China ,s official media such as CCTV and People,s Daily often features such events in some areas. For example, cars produced in a specific city are often favored in that city over cars from other areas. Sometimes, specific policy in a city in the form of government directive is released in order to accord protection to locally produced products over those of outside origin. Examples of such a kind exist in huge numbers. Such directives can be found in Hubei province and Shanghai city. #p#分页标题#e#

practice may get China involved in trouble with WTO. Fortunately enough, the People,s Supreme Court has come to recognize this issue and efforts have been made to address it.

Generally speaking, the Chinese socialist legal framework with the Constitution as the core has been established, which provides the legal blueprint of China ,s economic, political, and social rules. In the past 20 years, the “game rules” of the market economy has been brought into play and are bound to be more respected. However, with WTO,s membership, the “game rules” need to be further expanded and fine-tuned to the new situation. China is working around the clock to achieve this magnificent project.



Ⅲ .7 Establishment of new bodies in charge of WTO affairs

Faced with the new situations and obligations after China ,s accession to WTO, the Chinese government is also doing every bit of work to transform the role of government to one which features high efficiency, less intervention in economic matters and more macroeconomic control. With relation to WTO affairs, the central government has started implementing a restructuring of the bureaucracy and has especially established several new bodies within MOFTEC and other agencies to deal with the affairs related WTO as follows:

A. The WTO Bureau: it is especially in charges of the daily negotiations between China and WTO and of dealing with the daily matters concerning the relationship between China and WTO.

B. The WTO Notification and Consultation Bureau: it is in charge of the daily notification and consultation of the relevant information in WTO for China and the trade policy review mechanism. This body is quite important as its role its to offer instant and accurate information to all people concerned with WTO affairs.

C. The Fair Trade in Export & Import Bureau: it is in charge of the matters related to China ,s anti-dumping, countervailing and safeguards measures; it is devoted to ensuring a fair and orderly trade environment in China . It has the delegated power to investigate into potentially harmful trade acts and penalize the guilty. As a functionary body, this Department has broad authority and has huge power in trade affairs. #p#分页标题#e#

D. The Industry Injury Investigation Bureau within the State Economic and Trade Commission (SETC): it is in charge of deciding whether there is injury done to domestic industries by imports in cases of anti-dumping, countervailing duty and safeguards measures and of finding the extent of injury resulting thereof. It is also in charge of directing and protecting the safety consultation and training of the national industries and of establishing the injury prediction mechanism.

These newly established agencies reflect the importance attached to WTO affairs by Chinese Government. They are established with a view to strengthening China ,s responsiveness to WTO affairs and to conducting trade matters in line with WTO,s requirements. All these bodies will provide a bridge between China and WTO to enable smooth and efficient information exchange and to make it easier for China to fully implement her commitments. Only through the work of these functionary bodies can WTO rules and their proper interpretation and application be inserted into China,s laws and regulations; therefore, it is safe to say that China,s laws and regulations in this respect are moving ever closer to WTO and truly express the ideals and practice of WTO.

However, China has already been a WTO, member for one year time and although most things go smoothly, there is still a long way to go.
Ⅳ .THE MAIN TASKS OF CHINA ,S LEGAL SYSTEM IN THE POST-WTO ERA



As is stated above, WTO requires China more than any other international organization, especially in terms of its legal aspect. The general principles underscored by WTO touch not only the economic aspects of China , but goes far beyond. It shall bring a lot of changes to China , legal system and shall transform it into one bearing similar characteristics to those established in western countries and those favored by WTO. Three principles shall gradually come to underlie China ,s legal system and its legislative, administrative and judicial bodies, namely, transparency, independent judicial review and uniformity of laws and regulations. These three principles lie at the core of “the rule of law”, a dream envisioned by many as the only way for China to successfully transform herself to a modern nation and eagerly practiced by the Chinese Communist Party-the ruling party of China . The three branches should thus change themselves accordingly. #p#分页标题#e#



Ⅳ .1 The legislation

In a sense, China ,s entry into WTO is the entry of China ,s legal system into the rules of world business community while legislature lies on the top of China ,s legal system. Legislature plays a key role in the successful adjustments to the WTO. Without the legislature making the game rules and internalizing the WTO,s rules in China , there would be hardly any possibility of transformation of China ,s legal system.

Recently, efforts to bring the Foreign Trade Law of PRC up-to-date have been initiated as the old version has been outgrown by the fresh changes following China ,s entry into WTO. The aim is simply to eliminate those rules found inconsistent with WTO and to add more to make this Law to better serve as the torch light of China ,s foreign trade.

Besides, more attention has been paid to issues that go to the roots of China ,s legislative work as follows:

Firstly, China shall emphasize the legislature of procedural laws. China ,s tradition has placed more attention on substantive issues than on procedure issues. However, with WTO rules of which a very large part is devoted to procedural matters that are used to ensure a fair result 26 , such a situation is no longer tolerated, because WTO always highlights the importance to uphold justice through strict adherence to procedural provisions. In trade issues, this problem deserves special attention for the administrative agencies hold huge discretionary power to decide cases. Indeed, the judicial review system is largely established to extend judicial examination into whether investigation authorities follow procedure to decide cases and to intervene in the interest of justice.

Secondly, China should deregulate the economy further and reduce the extent of administrative intervention into civil and commercial matters. Reforms in laws and regulations in this regard are quite extensive in scope. For example, personal laws(such as market transaction law) should be preferred over public laws (such as market regulation law), because WTO values make it very clear that excessive intervention by the government into economic matters is to be #p#分页标题#e#
26 For example, an in-depth analysis of Anti-dumping Agreement reveals that it focus more on procedural matters than on substantive ones with a view to ensuing that investigation authorities follow strictly the procedures and arrive at a just and unbiased conclusion. Certain key issues in many cases arising under it also focus on whether investigation authorities follow the procedure to find a dumping discouraged and free trade is better than controlled trade.

Thirdly, China should fully implement the transparency principle in legislative work and make hard efforts to allow more people to take part in the legislative process with a view to allowing the voices of average citizens heard and considered. This is also a reflection of the spirit of “rule of law”.



Ⅳ .2 The administration

As has been stated, in a sense, WTO Agreement and its annexes are actually a series of rules to regulate the administrative behavior of the member governments, with a view to phrasing out barriers to international trade set up by governments. To some extent, WTO can be deemed as “international administrative law”. In this sense, China ,s entry into WTO can be called the government,s entry into WTO. Governments from the central level down to the grassroots level must adjust themselves to this situation and learn to circumscribe their power in foreign trade.

In a country where the administrative branch dominated the political landscape for thousand of years and is continuing to play a key role, such changes are bound to wrench pain on the part of governments, for they are actually going to reduce their own importance and role while usually it is hard to force anybody to give up his own power by himself. It is easy to imagine what an arduous task it is. Indeed, many administrative rules and regulations formulated in the past under a planned economy are found to be WTO-inconsistent and must be cleaned up and modified. Fortunately, the work has been near its completion as is stated in 2.3. #p#分页标题#e#

The role of governments in a market economy is to service the economy instead of to control it. In China ,s case, it is imperative to upgrade macro-management strategies instead of to regulate the economy in every detail. The aim is to establish a market-oriented mechanism and consummate an efficient, harmonized administrative framework.



IV.3 The judicature

The judicial review system is only a part of the reforms of the judicature system. Actually, it is just a prelude to more far-reaching reforms which can only be summarized years later.

One of the top issues that need to be addressed for the time being is to train the personnel of the existing judicial bodies to fully appreciate the tasks faced by them and to instruct them to act in manners consistent with WTO requirements. This is more difficult for China because China,s judicial system is far from satisfactory for historical and traditional reasons, and its personnel has little experience dealing with matters in a WTO-consistent manner. Generally speaking, a lot of court judges lack the necessary knowledge basis in this regard as their education prepared them little to see matters from a global perspective. Some of them are not yet qualified professionals able to meet the requirements of a post-WTO era. This would bar the smooth transition to a post-WTO era as they are responsible in technical detail with the judicial matters. Therefore, hard efforts have to be made to bring the personnel to familiarize themselves with WTO values and principles and to act upon them when they deal with specific cases. Compared with the law-making and revisions, this task is much more than arduous as it takes longer time to change peoples, perception and behavior.

On the other hand, there is also problem with the court system itself. It is a fact that judicial bodies in China bear more similarities to that of administrative agencies than to their counterparts in western countries. This results in a situation in which sometimes the courts seem to live under the shadow of the administrative branch. Besides, China ,s courts are financially related to the local government as the latter fund the former, so full independence of courts cannot come true as long as this remains. Because court judges bear such close relations to the local governments, they sometimes unconsciously or consciously approach their work like an official. For example, in handing down judgments, sometimes they favor parties of their local jurisdictions at the expense of parties of other places, often out of consideration of local protectionism and in total disregard of justice. This means that the organization of China ,s courts must also be reformed and they must be brought to full independence. #p#分页标题#e#

Another issue is how to effectively enforce the laws and regulations. Problems with enforcement have become very acute as the rate of enforcement of judgments stay at relatively low end and thus, the authority and effectiveness of judicial enforcement are called into question sometimes. However, the time for a change has already come and such a poor enforcement situation must be terminated; the authority o the courts shall be strengthened and respected, as China must take into account the standards and responses of the international community when it comes to the enforcement of laws and regulations.

Whatever the problems may be, all sorts of them are detrimental to the integrity and reputation and authority of China ,s legal system and results in a less than satisfactory state of judicial work. Reforms must be sped up to bring a close to such a situation.





Ⅴ .CONCLUSION



All in all, an effective legal system is the prerequisite and guarantee of China ,s accession into the WTO and of her full fulfillment of her commitments. It is admitted that many defects still exist in China ,s legal system which fall short of the WTO,s requirements. However, in the past years since China joined WTO, China ,s efforts to abide by her WTO commitments are praiseworthy 27 . While the tariff levels have been cut down by enormous margins and many non-tariff barriers demolished or lowered, the opening-up of trade in goods and services is gaining new momentum and the international community appreciates such efforts. In review sessions held to evaluate China ,s performance, positive remarks were made about China ,s performance, especially in regard to China ,s fulfillment of the TRIPs Agreement.

However, in relation to legal changes, China has just started to phase in many new principles and phase out the old ones. The changes arising from such full-scale transformation are reshaping China ,s legal system in foreign trade into one compatible with the trends of the world. As China ,s economy is moving ever closer into the world community, her legal system must also reflect such changes in order to offer legal protection for the booming economy. What has already happened to China ,s legal system is quite extensive in scope and far-reaching in impact, yet the greatest changes have not taken full shape---they have just surfaced and been building up their force to wrench significant changes within the China ,s society. In this sense, China ,s WTO membership is just going to usher in them and help them grow. We believe that China is full of confidence of performing all her commitments and she has already started. #p#分页标题#e#



27 Director-General Supachai Panitchpakdi of WTO pointed out in a recent press conference that China has made great efforts to fulfill her commitments and has made it. For example, many laws and regulations of China have undergone major changes in the past year and trade regulation regimes reviewed and reformed.