The Evolution of Fundamental Rights Legislation in PRC: From Soviet Model of Human Right Theory to Influence of the UN Universal Standard of Human Rights

Abstract

Legal transplant is one of the common measures for legal reform. Due to sharing Marx-Leninism ideology with former Soviet Union, China’s constitutional drafters were highly influenced by Soviet model both in 1954 and 1982 Constitution texts. Constitutional rights with Soviet feature can be easily found in China’s constitution texts where the State owes positive obligations to ensure the fulfillment of both liberal rights as well as the social and economic rights, and defend state and collective interests from infringement by the performance of individual rights. Thus, rights in socialist legal order cannot be entitled as an effective instrument against the state authorities, but can be treated as opportunities provided by Communism regimes with the purpose to enhance the social solidarity. UN human rights treaties founded on liberal ideologies have some limited but potential impact on shaping human rights legislation in China, despite the fact that domestic courts have no competence to apply UN human rights treaties. In my view, it implies to some extent that Chinese ruling elites would be favorable to promote reform on human rights legislation in compliance with UN human rights standard in the condition that new human rights legislation brings no threat to ruling status of China’s Communist Party as well as the formulated social order would not be overthrown by the prospective consequence of new human rights legislation. On the other side, the outcome of ideological struggle and compromise between the reformists and Marx Leftist is the crucial factor determining whether or not to incorporate UN universal standards into China’s new human rights legislation.

Keywords: China’s human rights legislation, constitutional rights, universal human rights standard, Soviet theory of human rights, interaction relationship, constitutional rights borrowing