New Developments in Law in the People's Republic of China (original) (raw)

The Role of Law in China's Economic Development

China's Great Economic Transformation

The Role of Law in China's Economic Development 379 mushroomed. The role of the courts has expanded considerably, and at least in the cities the salaries and benefits enjoyed by judges have been enhanced greatly through court fees. 5 Perhaps most symptomatic of the change in the role of law has been the change in the role of lawyers. In 1983, five years into the reform era, China had only 8,600 full-time lawyers (Chen, 2004). By 2005, that number had increased to well over 100,000, 6 and the year 2004 saw over 40,000 new LL.B. graduates (China School Net, 2005). There is no reason to doubt that this is a supply response to income opportunities, which in turn suggests that what lawyers do has much more value than before. Of course, some of this work may be old-fashioned "fixing." But it is fixing within an increasingly dense web of rules that barely existed at the outset of reform. Just as Naughton (1995) has characterized the economic reform process as "growing out of the plan," so may the process of legal reform be described as growing out of the system of administrative directives. Unlike in the states of the former Soviet Union and Eastern Europe, in China the planned economy was not suddenly abolished. Within the Chinese state sector, the replacement of administrative directives with legal methods of supervision and control has been very gradual. Even today the senior management of enterprises in which the state has an important stake are selected and vetted through the Communist Party personnel system, with the board of directors merely supplying legitimacy. 7 Yet the operations of state enterprises are increasingly subject to legal instead of administrative regulation. For example, contract disputes with nonstate suppliers and customers cannot be resolved administratively, because there is no common superior. The great expansion in the number and importance of economic actors that are not core parts of the traditional state system reinforced the process of growing out of the system of administrative directives. Privately owned enterprises have had to rely largely on the legal system for organizational vehicles 8 and remedies for wrongs suffered. Early on, the legal system did not provide much, but over time it became more responsive. For example, article 31 of the 1986 General Principles of Civil Law (GPCL) requires a written agreement for a partnership. However, just one year 5 As of 2004, for example, an experienced senior judge in Shanghai could have annual earnings of 110,000 yuan (Gechlik, 2005). 6 The exact number depends on whom you count. There were more than 103,000 full-time lawyers in law firms, but another 16,000 working part-time or in government, the military, companies, or legal aid services (Ministry of Justice, 2005). 7 In November 2004, for example, the Chinese government undertook a remarkable reshuffling of top executives in its majority-owned, but ostensibly independent, telecommunications companies, with the executive vice president of China Mobile becoming the president of China Telecom, the executive vice president of China Telecom becoming the president of China Unicom, and the president of China Unicom becoming the president of China Mobile (Financial Times, 2004). 8 By contrast, state-owned enterprises, for example, existed for decades before the promulgation in 1988 of a law providing for their existence and organization.

In search of Chinese jurisprudence : does Chinese legal tradition have a place in China's future?

Qut Business School School of Accountancy, 2009

Over the last few decades economic reforms have been the primary policy objective in Asia, legal reforms were however treated as a by product. If China wishes to create a uniquely modern economy, commercial laws should be economically conducive as well as culturally receptive. However, Chinese legal tradition and philosophies are quite different from those of Western counterparts. So can Chinese jurisprudence, if there is such a thing, be adapted for a rapidly growing economy in a globalised world? This article will attempt to tackle these challenging issues and offer some tentative suggestions. Introduction: Over the last few decades, economic reforms have been a key policy objective in Asia. Legal reforms were however treated as a by product. Legislators and regulators in Asia did not appear to give much thought to consider the compatibility of new commercial laws with their cultural heritage and social norms. The People's Republic of China (China) is a prime example. Many new commercial laws such as company law, securities law, and antimonopoly law were recently introduced. These laws were transplanted primarily from the US and European Union as Chinese officials assumed that if it worked in those countries it would work in China. What the Chinese authorities failed to realise is that the fundamental values and rights attached to these Western laws are entwined in the Western legal traditions. Hence, the embedded ideological and cultural contradictions with Chinese culture and heritage have not been addressed. Undoubtedly, China needs to move with the times to enact commercial laws that are in line with international investors' expectations. Yet, the lack of experience of Chinese authorities means that the government does not have much option apart from drawing inspiration from Western countries.

Paradigm Shift in Chinese Legal Studies

Hua S. (eds), Paradigm Shifts in Chinese Studies. , 2022

This chapter aims at offering a brief sketch of the changed and ever-changing paradigms in contemporary Chinese legal studies. The authors identify here two general paradigm shifts across the legal scholarship and academia of legal studies in the post-1978 China which are: de-Sovietization and de-Marxization, on the one hand, and legalization of market economy and Westernization of law, on the other. Since legal science is rather a comprehensive area of research which can be further divided into many sub-areas, the authors choose to develop the central theme of paradigm shift around the three broad sub-areas of law that are: legal theory/jurisprudence, public law, and private law. Finally, the authors also advise to adopt a realistic lens to observe and reflect the subtle process of paradigm shift in Chinese legal studies and to closely observe the ongoing development of legal scholarship “with Chinese characteristics” today.

Studying Contemporary Chinese Law: Limits, Possibilities and Strategy

The American Journal of Comparative Law, 1991

Johnson & Bridges, San Francisco. This article grew out of a paper originally presented at a conference on American Studies of China organized by the Woodrow Wilson International Center for Scholars at the Wye Plantation in 1988. The author is grateful for support provided by the Law Schools of Harvard and Stanford, where he revised the article while in residence as Visiting Professor in the spring semesters of 1989 and 1990, respectively, and by the law firm of Thelen, Marrin, Johnson & Bridges. Judith M. Lubman, William P. Alford and James V. Feinerman were kind enough to read and comment on earlier drafts. 5. Without pretending to completeness, I cite the following alumni of the Harvard East Asian Legal Studies Program, who have written widely and promoted the study of Chinese law as law teachers or practitioners: R. Randle Edwards, currently teaching Chinese law at Columbia Law School; William P. Alford, who after teaching Chinese law at UCLA returned to Harvard in 1989 (see n. 42 infra); James V. Feinerman, currently teaching Chinese law at Georgetown Law School; Victor H. Li, who taught Chinese law at Stanford before becoming President of the East

Legality of Rule Of Law With Chinese Characteristics

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. This thesis considers that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society”. The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and to elaborate the outcomes of China’s recent legal developments. This thesis has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In this thesis, it is claimed that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade, perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this thesis suggests that the Chinese legal progression can be taken as successful example of legal experimentalism.