Center for Chinese Legal Studies
Extensive discussion of the Chinese Constitution focuses on the ways in which the Constitution is under-enforced or not implemented. This essay takes a different approach, examining one clause that is arguably at times over-enforced, providing for constitutional authorization for challenging legal determinations outside the legal system. This essay’s focus is Article 41 of the 1982 Constitution, which protects the rights of citizens to file complaints (shensu 申诉) against illegal conduct of state actors. My goal in this essay is to examine the ways in which the concept of shensu is used to provide a basis for challenges to state action both within and outside of the formal legal system. My central argument is that Article 41 provides insight into structural tensions inherent in China’s constitutional framework.
Benjamin L. Liebman,
Article 41 and the Right to Appeal,
Berliner China-Hefte/China History and Society, No. 45, 2014; Columbia Public Law Research Paper No. 14-407
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1878