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Legal Reforms in the 1982 State Constitution

In late 1982 the National People's Congress adopted a new state constitution, which was still in effect in mid-1987 (see Constitutional Framework , ch. 10). The 1982 state Constitution incorporates many provisions of the laws passed since 1978 and distinguishes between the functions of the state and of the party, mandating that "no organization or individual may enjoy the privilege of being above the Constitution and the law" (Article 5). This article has been interpreted by Chinese observers to include party leaders. The state Constitution also delineates the fundamental rights and duties of citizens, including protection from defamation of character, illegal arrest or detention, and unlawful search.

The National People's Congress and the local people's congresses continued to enact legislation to meet the juridical and other needs of their jurisdictions. The draft Law on Civil Procedure, in force from October 1982, provides guidelines for hearing civil cases. These cases constitute the majority of lawsuits in China, and in the 1980s the number was growing rapidly. In some of the lower courts almost all cases were civil.

A major problem in implementing new criminal and civil laws was a critical lack of trained legal personnel. In August 1980 the Standing Committee of the National People's Congress had sought to remedy this shortage by passing the Provisional Act on Lawyers of the People's Republic of China, which took effect on January 1, 1982. Before the law went into effect, there were only 1,300 legal advisory offices and 4,800 lawyers in China. By mid-1983 the number had increased to 2,300 legal advisory offices staffed by more than 12,000 lawyers (approximately 8,600 full time and 3,500 part time). To meet the growing demand for lawyers, law institutes and university law departments that had been closed during the Cultural Revolution were reopened, and additional ones were established. By mid-1985 approximately 3,000 lawyers per year were graduating from the 5 legal institutes and 31 university law departments located throughout the country.

The law also established legal advisory offices at every level of government and established the duties, rights, and qualifications of lawyers. Any Chinese citizen with the right to vote who has passed a professional competency test after formal training or after two to three years of experience in legal work can qualify as a lawyer. Lawyers are expected to act as legal advisers to government and nongovernment organizations and as both public and private litigants in civil suits, to defend the accused in criminal cases on request of the defendant or upon assignment of the court, and to offer legal advice at a nominal charge to anyone requesting it. The 1982 law guarantees that in carrying out these duties lawyers will be permitted to meet and to correspond with their clients without interference from any organization or individual. The law seems to have had a positive effect. Although there was a serious shortage of lawyers and great disparity in professional competence among those practicing, China in the mid1980s was making progress in developing a corps of lawyers to meet its legal needs.

Data as of July 1987