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Terms in this set (65)

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

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
Sources of Order in Chinese Law

In December 1978 the Central Committee of the Chinese Communist Party endorsed a programme of economic modernization
China's legislative structure is, as described below, a highly pragmatic response to political and institutional pressures. But whatever its pragmatic virtues, it is also a legislative system riddled with ambiguities and inconsistencies which have had a significant impact on the character of contemporary Chinese law.

However, the influence of China's once dominant Confucian ethos is readily apparent in the variant strains of modern Chinese legal culture.
Consequently the doctrinal coherence of the law and its consistency in application was derived more from this philosophical and moral context than from a formalist interpretation of legislative texts. Chinese society has in many respects held to this contextualist approach to law. There continues to be a widely held belief that the application of positive law should be subject to extra legal considerations, such as the relationship and circumstances of the parties and the demands of commonly held standards of justice.
Perhaps the most interesting parallel which exists between late imperial and contemporary sources of law in China lies in the dichotomy which exists between the formalistic and symbolic use of primary legislation and the flexible and pragmatic use of sub-statutory rules.

The upheavals of the nineteenth century brought an end to the dominance of Confucian orthodoxy within China. In the face of widespread economic and social turmoil as well as European territorial encroachment, many Chinese intellectuals looked elsewhere for the means to revitalize the state. A growing number believed that China should adopt the apparent hallmark of the powerful European states; constitution
The exposure of the Chinese to the German civil code is particularly significant.

others have emphasized the breadth and flexibility of the concept of legislation and the importance of regional law.

There are two distinct themes which have characterized the development of the formal sources of Chinese law during the 1980's and 1990's. The dominant theme is one which emphasizes the instrumental use of law and its essential openness to its context.
- deny a distinction between law and politics and perpetuate the principle of Communist Party supremacy.
- They have served to justify the use of Party directives to suspend or alter the operation of law and the use of Party policy documents to provide the necessary context for legal interpretation. These doctrines have also sustained the view that law derives its coherence of meaning more from its political and social context than from a reasoned interpretation of statutory language.
Development of Chinese economic system in the past 60 years:
"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.

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.

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.
Technically Improved.
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.
Political Economy of Oligarchy ; reorganization of Power in Indonesia

Fall Suharto regime asian financial crisis- IMF reforms
but after decade, access and control of public office and state authority continues to be the key determinant of how private wealth and social power is accumulated and distributed
- decentralization of andminsitative authorities and parliament politics extended "old ways" of doing politics
disintegration of Authoritarian rule did not give rise to a broader liberal transformation of the society and politics

reorganized in a complex and highly cohesive "oligarchic elite"
system that enable the concentration of wealth and authority and its collective defence

authoritarian exercise by state over state bank credit, forestry mining exploitation, gov contract and procurement became the basis of vast patronage favour
(e.g family of president family betiding a vast business empire)

part of the bureaucracy redoutant to convict corrupt political leaders and business figures
KPK contrives to be pressured by powerful interests

poses a challenge to liberal politics
new institutions made things possible, bUT at local and national level kinds of interest that are able to organize politically and influence institutions

POINT: transformation would require disintegration of the old order and forcing a new one - a new social order shall be put in place requiring a deeper social and political revolution, whether liberal or other

Hope? constitutional courts, supreme court publishing more and more ruling, Indonesians studying abroad, KPK border line
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.
Pre-Meiji - no central penal code
1880: introduction western ideals (betiding prisons, banning torture)
first penal court created: on french model
1907: reform: german influence
no obligatory prosecution - judges with more latitude
Post ww2; reform bc occupation
instruction of judicial review
reform more procedural
new code of penal procedure - right for the accused including silence

Structure: centralized, national, hierarchical structure of the prosecution office,
Discretion of individual prosecutor is significantly contained by internal control

strength: focus on rehabilitation of offenders,
low incarnation case ; punishment on majority of cases
-flexible solution
treating all case alsike
healing not just punishment

Weakness: too cautious, too much oversight by managers
large conviction rate because prosecutors choose "sure wins"
high rate of death penalty
too much expanses on confession
transparency and accountability can be undermined because prosecutor's discretion

how to interpret this with rule of law? define rule of law .. ; the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws
-criminal law as part of the rule of law
-successful and timely investigation and adjudication
impartial and non-discriminatory system
free of corruption and improper gov influence
rights of victims and accused properly respected correctional system effectively reduce criminal behaviour

career goal of prosecutors: career oriented, lot of pressure on them (focus on fault rather than successes)
but justice done by the whole justice process
-look at whole system

Reform? needed?

2016: introduction of plea-bargaining
incremental changes in practice