Last edited: November 2005
Summary and Analysis
The Convention on the Rights of the Child was signed on August 29, 1990 and ratified on March 2, 1992. It has been ratified by the Standing Committee of the National People’s Congress of China, thus making it legally effective in China and a part of Chinese law.
The Chinese government’s people’s procuratorates are the country’s legal supervisory authorities. According to the People’s Republic of China reports to the UN, they oversee cases involving juveniles and firmly adhere to the principle of the ‘best interests of the child.’[2] If a child does not have a legal advocate, then the court is required to appoint him or her with a lawyer; however, the child and his legal representative may reject a particular lawyer.[3] When a minor goes to court, the minor and his or her legal representative have the right to receive an agent ad litem.[4] In addition, when a child is involved in a legal proceeding, he or she may explicitly express his or her views directly to the judicial authorities.[5] Furthermore, the child’s legal representative, whether it is his or her relative or agent ad litem, is required to attend proceedings to ensure that child has available assistance for exercising his or her legal rights and that his or her views are expressed in their entirety.[6] If the minor is involved in an adoption or divorce proceeding, the court will hear the views of the minor if he or she is over the age of ten, and must take them into account.
Although the Chinese government has stated, in their reports to the CRC, that these rights exist, we have been unable to independently confirm the texts of these legal provisions. Many acts, however, have been passed in China to protect children’s rights, specifically, the General Principles of Civil Law, the Marriage Act, the Adoption Act, the Protection of Minors Act, and the Prevention of Juvenile Delinquency Act.
China has taken steps and continues to take steps to further implement the CRC. On August 25, 2003, the Judicial Bureau of the City of Beijing approved the Law Institute of the Chinese Academy of Social Science’s first legal aid institution legally allowed to operate as an office of law, the Oriental Public Interest and Legal Aid Office. The office specifically deals with human rights, with a great emphasis on the implementation of the CRC, providing legal assistance to children in legal proceedings. Furthermore, the government of China has created a National Programme of Action for Child Development (2001-2010), which also seeks to deal with the implementation of the CRC regarding the legal protection of children, and other children’s rights issues. Furthermore, Chinese juvenile court justices have been attending meetings and seminars regarding juveniles’ rights, with international judges specialized in legal proceedings involving minors coming to lecture on topics of the CRC.
Related Sources of Law (In Order of Authority)
Statutes
General Principles of the Civil Law of the People’s Republic of China [7]
Article 12. A minor aged 10 or over shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his age and intellect; in other civil activities, he shall be represented by his agent ad litem or participate with the consent of his agent ad litem.
A minor under the age of 10 shall be a person having no capacity for civil conduct and shall be represented in civil activities by his agent ad litem.
Marriage Act of the People’s Republic of China[8]
Article 15: Parents shall have the duty to bring up and educate their children; children shall have the duty to support and assist their parents.
If parents fail to perform their duty, children who are minors or are not capable of living on their own shall have the right to demand the costs of upbringing from their parents.
Adoption Law of the People’s Republic of China[9]
Article 11: Adoption of a child and the placing out of the child for the adoption shall both take place on a voluntary basis. Where the adoption involves a minor aged 10 or more, the consent of the adoptee shall be obtained.
International Law
Convention on the Rights of the Child[10]
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Translation (Unofficial)[11]
第十二条
1、缔约国应确保有主见能力的儿童有权对影响到其本人的一切事项自由发表
自己的意见，对儿童的意见应按照其年龄和成熟程度给以适当的看待。
2、为此目的，儿童特别应有机会在影响到儿童的任何司法和行政诉讼中，以符合国家法
律的诉讼规则的方式，直接或通过代表或适当机构陈述意见。
Cases
Mok Chi Hung and Lau Wan Sze v. Director of Immigration[12]
The Court held that ratification of an international covenant, absent statutory or executive indications to the contrary, gave rise to a legitimate expectation that administrative decision-makers would act in conformity with the international covenant. However, the Court decided that the reservations against the CRC were binding on the domestic courts. Those reservations pre-empted (in respect of all persons) the emergence of any legitimate expectation in matters concerning illegal immigrants;
Additional Resources and Links
Law Info China
http://www.lawinfochina.com/index.asp
EastView Online Services
http://online.eastview.com/login_china/index.jsp
iSinoLaw
Endnotes
[1] This page is also available as a .pdf Document, and Word Document.
[2] U.N. Comm. on the Rights of the Child, Consideration of Reports Submitted by State Parties Under Article 44 of the Convention, CRC/C/83/Add.9, p. 15, July 15, 2005, available here, and also as .pdf Document, and also as Word Document.
[3] Id.
[4] U.N. Comm. on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 12 (1) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, CRC/C/83/Add.9, p. 25, September 1, 2005, available here, and also as .pdf Document, and also as Word Document.
[5] Consideration of Reports Submitted by State Parties Under Article 44 of the Convention, supra note 1.
[6] Id.
[7] General Principles of the Civil Law, People’s Republic of China, Art. 12, January 1, 1987, available here, and also as .pdf Document, and also as Word Document.
[8] The Marriage Act, People’s Republic of China, Art., 15, October, 9, 1980, available here, and also as .pdf Document, and also as Word Document.
[9] Adoption Law, People’s Republic of China, Art. 11, April 1, 1992, available here, and also as .pdf Document, and also as Word Document.
[10] United Nations Convention on the Rights of the Child art. 12, Dec. 12, 1989, UN General Assembly Document A/RES/44/25, available at http://www.ohchr.org/english/law/crc.htm.
[11] Unicef, Convention on the Rights of the Child, http://www1.umn.edu/humanrts/chinese/CHk2crc.htm (Last visited Nov. 30, 2006), available here, and also as .pdf Document, and also as Word Document.
[12] Mok Chi Hung and Lau Wan Sze v. Director of Immigration, 2001 9 H.K.C.U. 1.