when riddle just a mistake?
perplexing features of chinese legal system
- who interprets them
1. "ideal Western Legal order" model approach
chinese approach in term of - how statically and dynamically with reference to its end state (oak tree example)
- 1. assumes that china has legal insistions, can be talked about meaningfully - can label this rubric "legal" , "meaningfully"
- something called "Chinese legal institutions'
- 2. assumes that these intuitions are "developing"
- i.e moving from more primitive to more sophisticated and better trajectiory of linear process
main problem: leave unjustified its most critical component : ideals against which chinese legal system is identified and measured
- can be useful but does not tell everything about chinese legal institutions
- can be useful to see if meets explicitly stated justified standards ' but NO means the only way of understanding the internal structure of chinese legal institutions
- critical phenomena may be overlooked
B. CONTRACT LAW
1) the Economic Contract Law of the People's Republic of China(1982);
--Contracts for economic purposes between Chinese legal persons, other economic org., individual business households, or leasehold farming households .
2) the Foreign-related Economic Contract Law of the People's Republic of China(1985);
--Contracts between Chinese enterprises (or other economic org.) and foreign enterprises (or other economic org., or individuals)
3) the Technology Contract Law of the People's Republic of China(1987).
--Contracts for tech. devel., trans., consult., or other tech. services between Chinese legal persons or citizens.
look at chinese condition through diff lenses bc no single paradigm adequate
- china is not static
- diff perspectives on the degree of significance of the doc
D. Administrative Law
"ideal Western Legal order"
unable to grasp internal relationships within chinese legal system , bc uninteresed in them
not just error, can be sings an alternative model coexist with dominant model
MUST be prepared to apply mustily models and to be alert to the needs always to move nimbly among them
How a Bill becomes a law in China
over last decades china lawmaking system developed a politically sophisticated process which can no longer be considered as unified, top-down policy-making system
Instead: Better though of as a "multi-stage" multi-arena process.
5 stages: agenda-setting, inter-agency review, top leadership approval, NPC DEBATE AND PASSAGE, explication , implementation and adjudication of the law
3 major arenas in the process: State council, CP central apparatus, NPC and its committee (SPC)
- no particular pattern that dominate in the process.
-each stage with typical set of actors and biases
CONCLU: imp changes in lawmaking be change in policy-making. more hospitable for innovation policy ideas, more accessible, to variety of groups and interests
role of party's leadership in 4 areas: Party and the congress, party and court, central-local, citizens basic rights
Argue: while the party's leadership is absolute, there remains room for innovation, D and power advancement for other state apparatus and citizen's rights. because of the party's interests requires so or bc lacks capacity for effective control.
how leads? Party central committee, instruct NPC whom to elect for most imp posts
1) Party control the pace of the NPC's development and even provides scripts for detailed steps
2)court much lower position in political hierarchy, compared to people's congress
SPC: supreme's peoples court
judicial independence and innovation must occur under the umbrella of the party's leadership
3)central country, but has difficulties to get its policies implemented
decentralization - requires significant powers to the localities
local initiatives still subject to central ones
4) chinese citizens have generally enjoyed a significant level of basic rights under the reform and more than under mao
(tolorated more incident of freedom for the process, speech, religion)
at the same time, the regime has heavily repressed some activities e.g. disappearance of activists
"rule of mandate" = constitution depends more on how the party appoint its members rather than what the law actually states
Development of Chinese economic system in the past 60 years:
I. CHINA'S ECONOMIC LEGAL SYSTEM WITHIN A HIGHLY CENTRALIZED PLANNED ECONOMIC SYSTEM (1949-1978)
"The essential feature of economic activities was state planning," which meant that "the economic activities were to be implemented
according to the state plans."'
As a result, laws were basically unnecessary in the governing of economic activities, and played little part throughout the formation, existence, and evolution of the planned economic system, which was initiated in the early 1950s, took shape in the late 1950s and declined by the mid- to late-1970s.
The state-owned economy was the dominant economic system.
II. THE ECONOMIC LEGAL SYSTEM IN THE EARLY STAGE AFTER THE
POLICY OF REFORM AND OPENING (1978-1992)
Starting in 1978, China abandoned the political theme of "using class struggle as a principle" and decided instead to focus on economic development. It thus began to implement the Reform and Opening-Up Policy that is still ongoing to date. Since the adoption of this new policy, with deepened knowledge obtained through experience and implementation, the economic system underwent a number of vital changes.
By means of these laws, a comprehensive legal system regarding foreign enterprises was established.
Beginning in the spring of 1979, different forms of the agricultural
production responsibility system appeared in rural China and the "contract system with remuneration linked to output" eventually became the major form of agricultural production. expanding the autonomy of enterprises.
the emergence and development of private economy.
With the Reform and Opening Up Policy, the integration of the Chinese intellectual property system into the global system proceeded at an unprecedented pace.
and maintained a heavy emphasis on environmental legislation even as it developed its economy.
III. THE ECONOMIC LEGAL SYSTEM UNDER THE SOCIALIST MARKET ECONOMY SYSTEM (1992-2009)
In 1992, China proposed the establishment of a socialist market economy system, which had long been a goal of the country's reform.6 7 In 1993, Article 15 of the Constitution was amended.
After the adoption of the market economy system, the development of a basic civil and commercial law, as well as economic law, became China's most pressing legislative task.
Features of Act 1999 Contract law:
Market Economy Oriented;
Freedom of Contract Emphasized;
Government Interference Restricted;
Contractual Rights Better Protected.
One distinctive feature during this period was that theoretical studies of law began to have a direct and significant impact on the economic legal system.
Thus, in 2005, China enacted major changes to its Company Law
One legislative milestone during this phase was the enactment of the Anti-Monopoly Law.
After over ten years of research and repeated rounds of revisions, China enacted the Anti-Monopoly Law in 2007, addressing issues such as monopoly agreements, abuses of dominant market positions, abuses of administrative power to eliminate or restrict competition, and the investigation of suspected monopolistic conduct. The enactment of the Anti-Monopoly Law had far-reaching importance in preventing and restraining monopolistic behavior, protecting fair competition in the market, enhancing economic efficiency, safeguarding the interests of consumers and the general public, and promoting the healthy development of the socialist market economy.
Despite all the ups and downs experienced over the past six decades in the construction of China's economic legal system, the overall trend is a positive one, pointing towards progress and prosperity.
Bureaucratic Politics and China's Anti-Monopoly Law
Few areas of Chinese law can rival the attention that the Anti-Monopoly Law (AML) has drawn at home and abroad since its enactment on August 1, 2008.
First, bureaucratic politics have a powerful impact on the allocation of economic resources in China, which in turn determines how monopolies arise in the Chinese market. Second, the bureaucratic structure and political processes of deci- sion-making shape the incentive structures of administrative agencies, thus affecting how they regulate the economic activities of various actors in the economy.
Contrary to the conventional notion that Chinese policymakers have a single, unifying goal to maximize national interests, the Article finds that Chinese antitrust enforcement outcomes largely result from a struggle among government agencies which decide antitrust issues in terms of the personal consequence for their stature and power. The claim here is not that Chinese AML is free of protectionism and discrimination— far from it, as will be elaborated upon in detail below. The claim is that the complexity of China's bureaucratic structure, policy process, and incentives of government agencies leads to a far more heterogeneous enforcement outcome than the existing literature predicts.
Japan's prosecution System:
Discretion of prosecutors - between them, with criminal court community, with the broader economical, cultural and polity structure = very imp
significant changes can occur ; adapting the japanese prosecution system and reform it
used to be a "paradise for a prosecutor' or "heaven for cop"
but 1990s and 2000s changing, more crime, caseloads, miscarriages, and intensified public and political scrutiny
context changing: prosecutors and police posed to record interrogations electronically and more disclosure and evidence
2009: introduction lay judge system for adjudicating suit and sentence
what has not changed: high conviction ; remains 99% for lay trial judge under new system
SO remain a powerful presence in criminal justice system but their role is being changed and challenged in several significant ways
Their discretion is so great that ana- lysts call the criminal process one of "prosecutor justice." Prosecutors exer- cise this discretion within three overlapping ambits: their own organization, which is centralized and hierarchical and has a division of labor between op- erators, managers, and executives; a criminal court community that includes police, judges, and defense lawyers; and the broader contexts of economy, polity, and culture. For most of the postwar period there was considerable continuity in Japanese criminal justice, especially in the central roles played by prosecutors and police, the strong reliance on confessions, and a convic- tion rate that approached 100 percent. But significant changes started in the 1990s. Punishments became harsher, victims were more empowered, revela- tions of wrongful convictions and official misconduct started to stimulate in- creased transparency, and the advent of a lay judge system for trying serious cases provoked change in other parts of the process, from bail and discovery to interrogations and defense lawyering. Japan's lay judge system is in its in- fancy. Time will tell how much reform this fundamental change will arouse. What is clear is that Japanese prosecutors will continue to adapt to the shifting contexts of criminal justice.