The Report may be found at the website of the ECLSA and access here. It is also reproduced below.
Report upon Perspectives from the 2014 ECLS
Annual Conference
Xuanming Pan, Sirui Han, Pilar-Paz Czoske, Marco
Otten, Meng Fang[1]
The 2014 Annual Conference of the
European China Law Studies Association (ECLS) was hosted by the Chinese
University of Hong Kong (CUHK) on the 15th and 16th of
November. The two-day
conference
gathered the intellectual acumen of many academic and professional leaders from Australia,
Canada, France, Germany, Hong Kong, Italy,
Macau, mainland China, Netherlands,
Singapore, Ukraine, United Kingdom, and United States, to name but a few. With reference to China’s ongoing reform, the conference brought together academics, professionals, members of the judiciary, policy makers, and
the like, with
their collective knowledge and expertise to engage open communication with the themes of “making, enforcing and accessing the
law”. Founded in 2006, the ECLS seeks to establish a forum for the global
exchange of ideas and academic collaboration in Chinese legal studies. As the
first ECLS annual conference held outside Europe, this year’s gathering not
only benefited from geographic proximity to China, but was also enhanced by the
cultural richness of Hong Kong, one of the
world’s greatest cosmopolitan cities.
The
conference opened in a gala ceremony
with addresses from Benjamin Wah (Provost, CUHK), Christopher Gane
(Dean,
Faculty of Law, CUHK), and Knut Pissler (Chairman, ECLS). They extended
warmest welcome to all the speakers and participants for their
preparations to introduce and to discuss the themes
that shaped the two-day conference. As highlighted, the Chinese legal
system has been
involved in global interactions between various civil law and common
law
traditions. The emergence of China as a leading economic and political
power
has been measured and debated in a variety of transnational spheres,
whereas the genius of Chinese
law and its actual practices remain largely unknown to the Western
world. The sessions of the
conference covered a wide range of pressing issues, from theories
concerning the rule
of law and judicial reform, through subject matters that include company law,
international sales law, labour law and criminal law. The conference also
provided a platform for academic deliberation on the recent Fourth Plenary
Session of the 18th CPC Central Committee. The broadness of the
topics has been one of the core characteristics of the ECLS annual conferences,
as has their emphasis on an interdisciplinary approach to these topics.
I. RULE OF LAW AND THE GLOBALISED LEGAL PROFESSION
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Following the opening addresses, the distinguished guest speakers shared
their visionary ideas with the
conference participants. Lord Macdonald of River Glaven (Warden, Wadham
College, Oxford University; formerly Director of Public Prosecution, England
and Wales), Dr. Markus Ederer (Secretary of State, German Federal Ministry for
Foreign Affairs), and Grand Justice Guixiang Liu (Grand Justice of Second Rank
and Executive Member of the Adjudication Committee, the Supreme People’s Court)
addressed in the topic “The Rule of Law: Local and Global Perspectives”, subsequent
to which Giles
White (General Counsel, Jardine Matheson Limited), Vincent Connor (Head of Hong
Kong Office and Asian Sectors, Pinsent Masons), and Yi Zhang (Managing Partner,
King & Wood Mallesons and SJ Berwin) shared their insightful viewpoints and invaluable experience on
the subject of “China Law and the Globalized Legal Profession”.
According to Dr. Markus Ederer, the rule of law should
be pursuit not only as an ambition in modern societies, but also as a principle
commonly accepted in international risk management, a field characterized by
crisis and conflicts. He mentioned that the recent international conflicts in
Ukraine and other jurisdictions such as in Asia, and indicated the transnational
need for a rule-based international order. In addition, the rule-of-law
cooperation played an important role in foreign policies. To illustrate, the
Germany-China rule-of-law dialogue has taken place since 1999, after which the
German government assisted in a number of Chinese projects, including the
design of institutional reform, and the capacity-building of civil society. According
to Dr. Ederer, the international community has witnessed significant changes in
China, with emphasis on the rule of law being a pillar of its continual reform.
Among other examples, the Chinese government has devoted to further reform in a
variety of areas recently, such as reinforcing the protection of intellectual
property and safeguarding equal treatment in government procurement.
Lord Macdonald demonstrated his understanding of the rule of law and judicial
independence based on his experience of public prosecution. Referring to counter-terrorism
cases and relevant public protocols in the UK, his
presentation demonstrated the complexity of state secrets, the supervision of
security intelligence agencies, and the tension between human rights and
national security. Among the more important and recent examples are the cases
of Binyam Mohamed and Edward Snowden. When facing these challenges, judges must act with extraordinary courage and
practice exemplary ethics in upholding judicial independence and the separation
of powers. In the view of Lord Macdonald, no country is immune to the dangers imposed
by sensitive cases, serious crimes and the threat of terrorism, and thus a
strong and independent judiciary is the critical condition for good governance
and the rule of law.
Grand Justice Liu focused on the development of judicial
transparency, a matter of paramount
importance in
the Chinese legal system, and, in particular, safeguarding fairness and promoting efficiency
in judicial process. Three mechanisms are central to this development,
including trial procedure transparency, judgment availability, and the enforcement information accessibility. Recently, the Supreme People’s Court established websites and other channels for release of official information, with its emphasis on different
levels of judicial documents to be provided in accordance with legal rules and
ethics. By November of
2014, more
than 5,800 Supreme People’s
Court’s decisions
and more than 3,553,000 local courts’ decisions can be accessed online. The
availability of online information, in his opinion, greatly safeguarded the value of transparency and the Right to Know of the general public, and doubtlessly, facilitated further legal
studies in
the academic sphere.
Giles White shared his experience from being a law-firm practitioner to a general
counsel. Against the backdrop
of global convergence in business regulation and governance, White pointed out that the biggest issue international lawyers have commonly confronted with is the delivery of legal services in consistent standards. The rapid changes in legal rules and regulatory
environment
have created new
challenges for different
industries,
where people generally turn to their trusted advisors. In this consideration, he suggested that
trust may be more important than expertise.
Vincent Connor further examined the shifting landscape of legal service provision since the financial crisis. Among the more symbolic changes are the
increasing competition, division of labour and stratification of the legal
profession.
In recent years, although the Chinese
local firms became more competitive in domestic legal services, the foreign law firms remained predominant in international legal practices. In addition, Connor touched upon the integration of core values, as demonstrated in recent convergence of regulatory policies and
internal governance
within a law firm. Such integration, together with other
aspects of improvement, would enable the international law firms to function in some kind of unity crossing legal jurisdictions and cultural boundaries.
Yi
Zhang echoed Connor’s ideas of mutual
influence between the East and the West. Among other institutional
changes, the convergence
of the civil law and common
law traditions was manifested in the history of legal service
provision,
especially in China.
As pointed out by Zhang, the number of Chinese lawyers topped up to
250,000 in 2013, and
88 per cent of them were full-time
lawyers. At the same time, the total annual revenue of Chinese lawyers
was reportedly 47 billion RMB, approximating 2.3 million RMB per firm
evenly
and around 20,000 RMB per lawyer. Having mentioned the above
statistics, Zhang
managed to highlight the disparities between the leading firms and the
others. Additionally, the leading Chinese firms would be more
aggressive in outbound
expansion, mainly through establishment of overseas branches or
engagement in special
international partnerships.
II. COURT REFORM, DISPUTE RESOLUTION AND ACCESS TO
JUSTICE
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China’s
Court Reform
Lixin Yang (China Renmin University)
opened the session with his presentation about the recent Fourth Plenary Session
of the 18th Communist Party of China (CPC) Central Committee and the
relative Communique focusing on “comprehensively advancing the rule of law in
China”. Among other things, Yang gave a comprehensive introduction to the
Communique, highlighting the measures for safeguarding judicial justice,
improving judicial transparency and credibility, and promoting fairness as well
as public awareness of the rule of law. Yang argued that the historical comparison
with the reform in the 1980s should be taken into account in evaluation of
China’s recent legal reform. Yang admitted that the performance of legal reform
agenda had been hindered by the political considerations in modern Chinese
history. Therefore, whereas the CPC Communique can be perceived as an
achievement of great historic value, further studies would be needed in
examination of how these ideas can be translated into actual practice.
Stéphanie Balme (Sciences Po Paris and
Columbia Law School) and Benjamin Liebman (Columbia Law School) further echoed
Yang’s speech in terms of legal transparency and credibility, the relationships
between legal reform and the political power centralization, and the uniqueness
of Chinese legal system. For legal transparency and legal credibility, Balme
mentioned that although the wordings in the Communique might be promising,
there are limited concrete solutions as for how these goals might be achieved.
Liebman also commented that Chinese legal reforms somehow have strengthen the
centralization of governors’ political rights over the years, compared with the
performance in terms of advancing the establishment of a rule of law system in
China. In addition, Balme made brief remarks concerning the uniqueness of the
routes taken in Chinese legal reforms throughout the history.
For issues concerning legal transparency
and credibility, Yang replied by quoting the Grand Justice Liu that several
innovative measures have been applied to achieve legal transparency and
credibility, including launching online judgment database and incorporating
lift-time responsibility mechanism for judges. In order to realize the goal
that “fairness and justice should be available to every citizen involved in the
judicial process”, Yang agreed that more effective measures might still be needed.
When touching upon centralization of political rights and judicial uniqueness,
Yang said that different perspectives other than the western ones need to be
utilized in understanding China. The development of Chinese legal reform is
self-evident that significant and fundamental advancements have been made in
recent decades. Considering the significant regional, national, and cultural
varieties in China, it is natural that unique solutions might be applicable in
solving existing problems.
Dispute
Resolution and Access to Justice
Michael Palmer (Shantou University and
SOAS, University of London) examined the legal and procedural responses to the social
problem of domestic violence. Palmer’s research focused on the domestic
violence from male partners against women. He argued that in many parts of the
world, including in China, the predominance of domestic violence is against
women partners. Echoing Palmer, Yanmin Cai (Sun Yat-sen University) presented
on “Approaches on the Reform of Civil Judicial Mediation in China”, in which
Cai mentioned that the related provisions in the PRC Civil Procedure Law might be too abstract to guide the national
mediation reform. In addition, earlier pilot schemes by the local courts
unveiled the disadvantages of the existing model, namely the combination of
mediation and trial proceedings. Thus, Cai argued that more open-mined
approaches should be introduced in the continual reform of judicial mediation.
Yun Zhao (Hong Kong University)
continued the discussion with his observations on mediation reform in China,
with, inter alia, focuses on the
“normalisation” of mediation laws and regulations. With the newly amended People’s Mediation Law 2010 and the Civil Procedure Law 2012 being the
landmarks, recent legal reforms have demonstrated the trends as for the
reinforcement of administrative regulations in mediation practices, and the
more significant role that arbitration rules have been playing in promoting
mediation. Zhao further mentioned that the integration of legal rules and
recent experiments will be invaluable for the development of mediation in
China. In addition, He Zhihui (Hubei
University) later talked about practices and history of civil mediation in China.
He argued that that Confucianism cannot be seen as the only source for
mediation in traditional China, nor are present developments in this area
solely based on Confucianism.
Björn Ahl and Daniel Sprick (University
of Cologne) examined existing restrictions on judgment availability in light of
legal transparency in China. According to Chinese legislations, judgments that
show criminal practices cannot be published. This might be problematic, since most
criminal law decisions might involve certain descriptions of the aforementioned
practices. In addition, the existence of the catch-all clause in judicial interpretations,
which gives judges the competence in forbidding certain judgments from being
published, might be too liberal to foster legal transparency. Ahl and Sprick
also argued that transparency is needed not only to legitimate the work of
courts, but also to check whether Guiding Cases are referred to by lower courts
in their judgments.
Beth Farmer (Pennsylvania State
University) presented on the inner conflicts hidden in the enforcement of the Chinese
Anti-Monopoly Law. Chinese Anti-Monopoly Law is performed by three different
agencies: NDRC, SAIC and the Ministry of Commerce. While the NDRC is
responsible for price-related violations, SAIC handles non-price-related
violations. In addition to that, the Ministry of Commerce controls fusions
according to the Anti-Monopoly Law. Possible conflicts could arise from the
competences divided between NDRC and SAIC, considering the blurred boundaries
between price-related and non-price-related issues. Farmer pointed out other existing
problems, including unbalanced burden of proof, statutory gaps, and absence of
collective action mechanism, are also hindering the process.
Peter Wang (City University of Hong
Kong) addressed the evolution of the Guiding Case System towards judicial
centralization in China. Wang argued that Guiding Cases issued by the Supreme
People’s Court (SPC) have binding effect pursuant to empirical findings,
whereas Typical Cases issued by Higher People’s Courts might have no formal
binding force. General cases can have potential influence on similar cases, but
are even weaker in binding courts due to their lack of institutionalization. The
aforementioned case systems have fostered the judicial centralization in China,
which has freed SPC from the National People’s Congress and its Standing
Committee, allowing SPC to exercise its legislative function in the
constitutional domain.
III. ENFORCING THE LAW: THE BUSINESS AND NON-PROFIT
SECTORS
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Regulating
the Business Sector
Thomas Kristie and Qianlan Wu (University
of Nottingham) demonstrated the persistent constraints in terms of enforcement faced
by China’s legal system. Their research focused on examining the public and
private enforcement of the competition law and consumer protection law. Kristie
and Wu also touched upon the challenges faced by legal enforcement, while
evaluating the impacts imposed by “Chinese Characteristics” on the development
of the relevant Chinese market regulations. Lea Murphy (China Great Advisory),
on the other hand, outlined the enforcement regimes of China’s antitrust laws
and the reality of their enforcement. Murphy pointed out the existences of
overlapping authorities and the absence of cooperation in executing
governmental duties when enforcing antitrust laws.
Felix Mezzanotte (Hong Kong Polytechnic
University) highlighted the infringement notice and the warning notice as novel
tools of competition law enforcement. Created by the Hong Kong Competition
Ordinance 2012 (Ordinance), the infringement notice and the warning notice have
been providing speedier, more flexible and cheaper enforcement while injecting
greater discretion and uncertainty into the process. The empirical findings
provided by Mezzanotte suggested that the aforementioned situation happened
because the participating actors might have either ignored or neglected their
potential risks, which should be well understood and managed in development of
competitive markets in Hong Kong.
Law
and Enforcement
Raffaello Girotto (University of Trento) studied the interaction of the
legislative and judicial formants in the evolution of PRC trademark law from
the statutory amendment of 2001 to that of 2013. Girotto argued that the courts
seem to be the driving force in the evolution of Chinese trademark law. As a
result, although the legal system of the PRC denies judicial precedents any
binding value, case law in fact leads the evolution of law, in which sense the statutes
actually ratify ex post solutions. Girotto
further mentioned that this trailblazing activity of courts seems to be mainly
triggered by policy impulses.
Rebecka Zinser (Humboldt University
Berlin) argued that the
incorporation of administrative enforcement mechanism in Chinese copyright law,
unfair competition law, and consumer protection law enables the state to play
an active role in law enforcement, the reasons for which are rooted in history
and the current state model likewise. Later, Matti Tjäder (University of
Lapand) discussed the features of
Chinese legal system related to post-contractual parties’ obligations, with special
emphasis on inspecting the changing circumstances doctrine in Chinese civil laws.
Tjäder also touched upon the question as
to whether the changing circumstances doctrine can be seen de facto bringing flexibility for the post-contractual evaluation
of obligations.
Saisai Wang (University of Brussels) examined
the formats of the Traditional Chinese Medicine (TCM). The controversy of the
TCM formats led to the misusing or misunderstanding of TCM, which further brought
confuse to medical legislation. Wang suggested dividing TCM legislation into
two branches, with one regulates the crude Chinese drugs and Decoction piece
whereas the other focuses on the pharmaceutical supervision of Zhong Cheng Yao. Following that, Zhang
Shunxi (China Renmin University) touched upon the non-enforcement phenomenon of
the legislation relating to cultural heritage preservation in China. Low cost
of offence, over reliance on external intervention rather than citizens, the
monopoly of the benefits of cultural heritage might be the contributing reasons
behind the scene. Zhang argued that China should establish a better monitoring
and co-operation system in the area of cultural heritage preservation.
Energy,
Environment, Labour and Immigration
Paolo Farah (West Virginia University) presented
a comparative study between the development of Shale Gas in China and the
unconventional fuel development in the US. He pointed out the perplexities
faced by China in the development of shale gas, which include limited
liberalization of gas prices, absence of technological development, and market-access
barriers. Fernando Dias Simões (University of Macau) later stressed the absence
of concerns about the individual behaviour in Chinese environmental law and
policy. To achieve effective behaviour change, Simões argued that behavioural
economics and social psychology should be incorporated in law-making
procedures, while duly considering the specificities of Chinese society and
culture.
Yuhong Zhao (Chinese University of Hong
Kong) explained the rationales and the effects of using market based mechanisms,
including pilot schemes, to reduce carbon intensity and fulfil China’s
international obligation in terms of emissions control. Xianshu Wu (China
University of Political Science and Law) later shared her findings on the
prevention of agricultural land pollution. Wu argued that the lack of special
legislations, specific legal measures, and absence of effective administrative governance
and proper prevention mechanisms would impair the control of pollution.
Ronald Brown (University of Hawaii at
Manoa) presented on collective bargaining in China, with regard to the question
whether the Guangdong regulatory model is a “Harbinger of National Model”. Brown
argued that even though the Guangdong regulation is innovative in detailing the
negotiation procedures, questions regarding whether employees have the right to
strike or mediation remain untouched. Pilar-Paz Czoske (University of Cologne)
shed light on a contracting chain in Chinese building industry that involves prohibited
unqualified sub-contractors. Czoske found that the judiciary has recognized
legal mechanisms within the prohibited contracting chain, by which the judiciary
however maintained the prohibited status-quo of those projects, to grant legal
protections to the migrant workers.
Mimi Zou (Chinese University of Hong
Kong) touched upon the specific regulations within the new Exit-Entry Law in
order to analyse how the state decides over an individual’s legal or illegal
status. Jasper Habicht (University of Cologne) furthered the discussion on the
new Exit-Entry Administrative Law issued in 2012. Habicht concluded that the Guangdong
and Beijing campaigns to combat illegal “san-fei” foreigners do not only serve
to implement political aims by legal justification, but the law-making process
also draws on the experience to prior or parallel campaigning. Therefore,
campaigning and law-making are interrelated processes in China.
IV. CRIMINAL JUSTICE, HUMAN RIGHTS AND THE
INTERNATIONAL LEGAL ORDER
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In this session, Hermann Aubié (University
of Turku) examined the cases of
Xiaobo Liu and Zhiyong Xu, both of which concerned with the inner conflicts
between the freedom of speech and inciting subversion of state power. Aubié
argued that interpretations and implementation of laws in China can become a
battlefield for political aims. On the one hand, the use of legal rhetoric to
silence different voices has shown the prevailing status of politics over law
in China. On the other hand, Chinese intellectuals and lawyers have also endeavoured
to use the legal language to express their opinions and thoughts.
Joy Chia (Chinese University of Hong
Kong) discussed the enforcement issues concerning China’s first National Mental
Health Law, which has granted discretion to public security organs, hospitals
and guardians to involuntarily commit those deemed “dangerous” to society,
leaving the system open to abuse. Chia argued that understanding this apparent
conflict requires contextualizing the law within its political and social
context, where the twin government goals of economic growth and social harmony
are paramount.
Li Li (Sun Yat-sen University) pointed
out that the revised Chinese Criminal Procedural Law has not addressed the
fundamental power relations between the police, the prosecutors and the courts.
Li also touched upon the recent trends in the law enforcement, including the
reduced arrest rates, the exclusion of illegal evidence, and the decisions of
conditional non-prosecutions. In addition, Shuo Liu (University College Dublin)
found the strict border controls imposed by modern states rendered the
realisation of the asylum right difficult in practice. Although China is
routinely viewed as a refugee-producing state, China has resisted commitments
to establish a clear legal framework or refugee determination system to ensure
the proper processing of refugee claims. Liu concluded with some insights into
the gaps that currently exist in refugee protection regime in China and also
proposed the explanations for the failure in establishing a more structured
system.
Wim Muller (University of Manchester and Chatham
House) pointed out that the domestic status of treaties and customary
international law in China remained a doctrinal, theoretical matter.
Muller touched upon the controversial question as to how norms of a foreign
provenance enter and later become internalised in a society. Following Muller, Kate
Surala (Maastricht University) suggested that, with the continuing efforts of
the European Union in reducing diversity of national private laws, the European
contract law is blurring the line between national and Community law and arousing
transnational impact on other countries, including China. The adoption of
Common European Sales Law (‘CESL’) may be a potential example for the above EU-China
correlations, especially in harmonization of private law perspectives.
V. MAKING THE LAW: JUDGES, LEGISLATORS AND BEYOND
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Law,
Politics and Law Making
Sarah Biddulph (Melbourne University)
examined the role of campaigns in law making. Biddulph argued that law
enforcement campaigns then do not only present a centralized coordination of
administrative action plans that address growing incidents of social unrest,
but further establish a basis for and facilitate legislative reforms. Campaigns
provide access to understanding the addressed problems on a national level and
thus are a tool of enacting new laws that respond in a regulatory and
centralized way to social unrest.
Ignazio Castellucci (University of
Trento) discussed the framework of law-making in China. According to
Castellucci, law-making in China is interacting with informal norm setters, while
attributing competences and guiding the other norm setters. Castellucci
observed that Chinese law is responding more to other norms already put into
practice, than laying its own foundations on which other norms should be based
on. By using the term “reactive legislation”, Castellucci described this
interactive and simultaneously authoritarian character of Chinese law making.
Ranran Zhao and Yu Xiao (East China
University of Political Science and Law) discussed inter-ministry politics
within the process of law-making by taking the example of drafting laws and
regulations for Private Equity Funds (PEF). In analysing the conflicts between
National Development and Reform Commission (NDRC) and the China Securities
Regulatory Commission (CSRC), Zhao and Xiao observed that China’s legislation
procedure heavily depends on the consent from related administrative agencies.
Keith Hand (University of California)
drew attention to the Chinese system of addressing legislative conflicts.
China’s legal system mainly provides three different ways of addressing the
problem of legislative disorder. Hand emphasized that due to multidimensional
capacity limitations, the legislative organs can barely assume their
responsibility to review the large amount of legislative documents. Thus, in
practice also courts play an important role in reviewing legislation on a
case-to-case basis, developing a form of judicial review.
Judges
as Legislators
Min Lee (Central South University of
Forestry and Technology) addressed the problem of judge-made law in Chinese
civil law from an empirical perspective. Lee argued that judge-made law might
endanger the uniformity of the legal system. Therefore, legal restrictions of
judge-made law are necessary. Firstly, the judge-made law should only be applicable
provided literal, teleological and systemic interpretations and analogical use
of statutes fail to solve the problem. Also, the judge-made law should be
established on civil legal principles and should only be applicable on a
case-by-case basis.
Vai Io Lo (Bond University) focused on judicial
interpretations and Guiding Cases in terms of judicial law-making in China.
Guiding Cases are used to illustrate how specific legal norms should be applied
or how certain disputes have been solved and should be “referred to” by other
courts in similar cases. Judicial interpretations are general, abstract and
often not up to date, whereas Guiding Cases are therefore used to fill in gaps
in judicial interpretations to unify the enforcement of law.
Marco Otten (University of Cologne) touched
upon the question as to whether the Chinese Guiding Cases System is a solution
to legal problems or a reaction to non-legal demands. Otten found that the
complexity of legal problem and the intensiveness of public and political
demands play important roles in the selection process of Guiding Cases. The
public opinion, especially political demands, seems to be a more suitable
explanation to determine whether certain judicial decisions are eligible for
becoming Guiding Cases.
The
Changing Role of Judiciary
Ivan Cardillo (Zhongnan University of
Economics and Law) shared his findings on the Supreme People’s Court’s use of
judicial explanations in giving accurate understanding and appropriate
application of the provisions of laws. Accordingly, the SPC’s position in the
Chinese legal system is unclear, due to its dual power of law-making and delivering
judgments. Cardillo demonstrated that the Supreme People’s Court has an
important role in shaping the Chinese legal system, by combining the abstract legislations
with the social needs, solving conflicts of laws, establishing more detailed
rules, dealing with sensitive social issues, and promoting legal awareness.
Xuanming Pan (Chinese University of Hong
Kong) then talked about the conflicts between the increasing size of regulator
as well as the deterrence failure triggered by inefficient law enforcement.
With allocating original law making powers being insufficient for achieving an
optimal level of deterrence, the power to interpret and develop existing law
and to decide how to deal with new cases, namely the residual law making power,
needs to be allocated to courts and regulators. Pan argued that Chinese judges
have strived to mitigate the problem of deterrence failure by expanding their
residual law making powers. Pan also contributed to the comparative literature
for understanding judicial responsiveness to socio-economic changes in terms of
exploring the unconventional regulatory role that can be played by the Chinese
local courts.
Juan Wang (McGill University) and
Wenting Liang (Beihang University) shared their findings in the emergence of
environmental courts in China. Wang and Liang argued that different
facilitators and designs on the establishment and use of environmental courts
across localities reveal the existence of dynamic relationship between local
judicial systems and government administrations. Through interviews and
document collection, they compared and contrasted the roles of local judicial
systems and government administrations in provincial-levels environmental
courts. Wang and Liang also talked about the implications of their findings.
Xiaohong Yu (Tsinghua University) noted
the divergence between judicialisation and its adverse trends had been caused
by mistaking courts as the judiciary in China. Chinese courts are merely one of
the four institutions that compose the Zhengfa
system. The judicial empowerment vis-à-vis
other state organs derives from both the strategic and activists actions of the
courts, and the willing retreat from other agencies, especially when
central-local tensions are involved. The dejudicialisation within the Zhengfa system, on the other hand, takes
root in the key organizational rule of the party-state: to centralize on major
issues and to decentralize on minor ones (daquan
dulan xiaoquan fensan).
VI. SOCIAL TRANSFORMATION, SOCIALIST DEMOCRACY AND
THE CHINESE LEGAL REFORM
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Socialist
Democracy: Theory, Practice and Innovations
Ulrich Manthe (University of Passau)
talked about his findings and observations on some legal phenomena that is
recorded in Chunqiu and Zuozhuan in the Spring and Autumn
period. In the Zhou dynasty, the enforcement of Li by Confucius might be seen as the reaction to the decline of the
feudal system. During the Spring and Autumn period, the concept of Fa as a code of conduct for the
subordinate classes was developed. The first written code was enacted during
the 6th century BCE. In family law, the system of clan names was restricted to
members of the ruling houses, and marriages were only recorded when they took
place between members of the ruling clans. There are also traces of a
developing contract law and of criminal procedure in Zuozhuan.
Michael Ng (University of Hong Kong) touched
upon the transplantation of the English bankruptcy regime into early colonial
Hong Kong. Ng’s observation constituted one of the first empirical studies to
place English business law and its widely acknowledged contribution to the
economy of early colonial Hong Kong under scrutiny. From the perspective of the
relationship between English law and former British colonies’ quest for
business modernity, Ng’s findings presented herein contradict the readily
accepted notion that English business law provided a solid legal infrastructure
upon which colonial Hong Kong’s prosperity and economic growth were built.
Billy K. L. So (Hong Kong University of
Science and Technology) then analysed the historical formation of commercial
arbitration in the chamber of commerce in Shanghai publishing industry in the
early 1900s. He concluded that legal transformation in modern China was not
only theoretically and normatively driven through passive transplantation of
exogenous legal institutions, notions, and values. Legal norms and institutions
were also actively adapted into local cultural context and eagerly applied in
the pursuit of business interest. The assumption of binary contradiction
between transplanted legal institutions and local legal tradition may be
enriched in the light of this dynamic phenomenon of adaptive evolution.
Socialist
Democracy and the Chinese Legal Reform
Randall Peerenboom (La Trobe University
and University of Oxford Centre for Socio-Legal Studies) presented his findings
on the 4th plenum and its significance for legal reforms. Peerenboom
argued that China finds itself standing at a crossroad between already achieved
institutional developments and the insufficiency of major state capacity to
further develop towards a high-income country, which might have led to the reinforcement
of the rule of law in the CCP main plenum topics. Peerenboom stated that the
reaffirmation of the Party’s role and the implementation of both law and
morality will further be understood as the characteristics of China’s
developing path.
Mary Szto’s (Hamline University)
presentation about gift-giving practices in China and their relation with
regards to the concepts of rule of law and virtue, fits Peerenboom’s findings
about China’s aim to implement the rule of virtue as co-existing with rule of law.
If gift-giving was differentiated from bribery and other unfair competition
acts, gift-giving could be understood as an act of virtue that is rooted in
traditional Confucian society and that expresses the establishment of a long
lasting relation between families or friends. Thus, the legal acceptance of
virtual gift-giving would reflect the co-existence of rule of law and rule of
virtue.
Stanley Lubman (University of
California, Berkeley) then commented on China’s legal reform paths and the
outcomes of the 4th plenum by focusing on judicial reforms. His
presentation was embedded in an overall assessment of characteristics of
China’s legal reform process. A key point of the judicial reforms during the
last years has been to combat local protectionism and corruption by
strengthening local courts’ independency from the local government’s
extra-judicial interference. This aim was again emphasized in the decision of
the 4th plenum.
Juha Karhu (University of Lapland) presented
the studies about Chinese administrative structures. As Karhu argued, China’s
overall legal reforms can only be understood by focusing on the relation of
national and local administrative levels. Emphasizing the Chinese
characteristics in China’s own notion of rule of law has simultaneously
legitimized the Party’s role of leading China’s legal reforms.
Lubman noted that legal reforms will continue to be marked by “Maoist” tools
and schemes, such as campaigns, pilot projects and show trials in the criminal
procedure.
Larry Catá Backer (Pennsylvania State
University) talked about theory of Collective Presidency in light of Socialist
Democracy. Backer suggested that state legitimacy can also be conducted through
internal democratic patterns, namely within internal structures of the CCP. The
internal democratic patterns are expressed through collective presidency. The
collectivization is the democratic moment that legitimizes socialist China. Collective
presidency is, amongst others, conducted through collective decision making,
collective research and learning and collective succession. Thus, limited
authority of individuals is the foundation of collective leadership of the
party.
Keren Wang (Pennsylvania State
University) and Larry Catá Backer later presented on “Institutionalising Shangfang within the Chinese Socialist
Rule-of-Law Framework”. They demonstrated that the continuous popularity of shangfang shows the citizens’ claims for
rule of law as they demand the correction of the government’s behaviour. Wang
and Backer stated that the shangfang
system can also reveal the separation of powers within the China. They also
argued that by interlinking shangfang
with the shuanggui system of
correcting inter-party behaviour, Shangfang
would then develop to become a multidimensional platform, which would
strengthen inter-party rule of law.
Yongxi Chen (University of Hong Kong) examined
the freedom of information from a socio-legal perspective. Chen tackled the
question the boundaries of journalists’ right to information granted by the
Regulations on Open Government Information (ROGI) in 2007. Chen came to the
conclusion that the granted right of access to information might be effectively
implemented in socio-economic realms, however politically sensitive topics and
any watchdog-attempts do not fall within the scope of granted access of
information and thus don't grant a journalistic-related right of access to
information.
VII. LAW, THE MARKET AND ECONOMIC GLOBALISATION
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Law and Economic Globalization
Lutz-Christian Wolff (Chinese University
of Hong Kong) talked about the liberalization of the Chinese
outbound-investment regime. Under the new outbound investment regime, investors
only need the verification of NDRC and the Ministry of Commerce if they plan to
invest more than one billion dollar or if they are aiming at sensitive
industries or countries. It is still not clear, how the new rules will be
interpreted by the state organs involved or if other rules will become more
important instead.
Julien Chaisse (Chinese University of
Hong Kong) then proceeded to take a closer look at the protection of Chinese
outbound investments, in specific to state-owned enterprises (SOEs) under
investment treaties. Chaisse touched upon the question as to whether SOEs can
use the protection measures in bilateral investment treaties, since only
private investors are protected in the treaties. Article 25 of ICSID Convention
seems to imply that states cannot file a suit against a state at ICSID. Since
SOEs do not necessarily fulfil the functions of a state, they might be eligible
for filing a suit in front of ICSID.
Shuo Liu (Erasmus University Rotterdam)
examined different approaches of national jurisdictions to define a ship. Liu
explained that the more complicated the definition of “ship” is, the harder it
becomes for a vessel to be governed by maritime legislations. In China, where
there is no definition of “ship” in the Maritime Code, other statures suggest
that almost all requirements are necessary to define a ship, which might lead
to a definition that is too narrow to satisfy practical needs.
Law and the Market
Mary Ip (University of New South Wales) talked
about the determinants for effectiveness of Chinese law with a case study of
the product quality legal regime. The amendments of the Product Quality Law
contained several improvements, such as better supervision, expanded liability
and an improved compensation system. Following the melamine scandal, the Food
Safety Law was promulgated in 2009. Ip argued that the Food Safety Law still
consists of problems in its regulatory structure, and she recommended that both
judicial and procuratorate enforcement and higher penalties should be
incorporated.
Tianlong Hu (Renmin University of China)
addressed issues relating to the recent fiscal and taxation legal reform in
China. To achieve the tax and fiscal goals formulated in “The Decision on Major
Issues Concerning Comprehensively Deepening Reforms of the Central Committee
(2013)”, different measures, including Free Trade Zones, carbon tax, and tax
incentives in NGO-related issues, can be utilized to foster an
environmental-friendly, energetic, and harmonious society. Hu argued that China
should also take a more active role in shaping the international tax order.
Yelyzaveta Sushko (Ukraine) presented on
the protection of minority shareholder rights in China, Germany and Ukraine.
While in principle available in China and Germany, derivative suit by minority
shareholders is not available in Ukraine. While shareholders of a German joint
stock company can lodge a suit directly at a court, shareholders of a Chinese
company have to apply to organs of the company to file a suit first. If said
organ remained silent for 30 days the shareholders can file a suit at a court.
Sushko proposed that a mixture of Chinese and German approaches could be suitable
for the Ukrainian law to protect minority shareholder’s rights.
As the last speaker of this panel,
Zhongyi Tao (University of Hong Kong) talked about private-ordering on the
internet. In the field of Internet, private-ordering it is often encouraged to
be used by the Internet Service Providers (ISPs) as a mean of dispute
resolution. Using the Sina Weibo as an example, Tao argued that, potential risks
exist in the ISPs private-ordering mechanism, including limiting the freedom of
speech or violating parties’ interests. Tao concluded that simultaneous legal
protection should be incorporated to avoid aforesaid risks while encouraging
ISPs private-orderings.
VIII. CONCLUDING REMARKS
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The two-day conference facilitated
invaluable academic exchanges and engendered transnational dedication to
exploring Chinese and comparative legal studies. Among many other tangible
outcomes, the scholarly deliberation during the conference shed light upon the
following fields of academic interest.
First, a policy trend with its emphasis on legal terminology was widely
accepted in the understanding of China’s recent reform. For example,
commentators concerned with either top-down law enforcement campaigns or
bottom-up pilot schemes, commonly suggested the importance of legal doctrines
or other types of legal definitions that have been
applied in pursuit of policy legitimacy or, more specifically, suggested
support for the implementation of central-level campaigns or local-level
experiments. Although the enforcement strategies and the functions of the law may be revealed ambiguously in many
case studies, the emphasis on legal discourse
is more obvious than
in the previous political narratives. This indicates an emerging field for Chinese legal studies.
Second, in-depth studies remain scarce on the role of European legal culture that is played in China’s legal development, and hence more research is needed in this area. During the conference, a number of studies have highlighted the European elements
evident in the shaping of Chinese domestic legal order, e.g. some pointed out the impact of
European laws on Chinese contract law and consumer protection law, as well as
called attention to the Chinese legal reform since the influence of the WTO
Agreements and other international treaties. According to comparative studies
as presented in the conference, the Chinese legal mechanisms in pursuit of
regulating insider trading and protecting minority shareholders are in part the
results of legal transplantation that has European origins. However, certain
approaches adopted in other areas of Chinese law are dissimilar to their
counterparts in Europe, such as those mentioned in the study of
post-contractual evaluation of obligations in the Nordic countries. In a
nutshell, certain connections
between the Chinese and European legal systems have been demonstrated, but
further implications should be drawn through continual research.
Third, judicial reform in China has
received much attention according to the submissions and presentations in this
year’s conference, which demonstrates an interesting convergence of research
interests between Chinese and overseas legal scholars. As pointed out by Grand
Justice Liu of the SPC in the opening session and by other scholars, the court
system is imbued with the principle of “judicial transparency” and, among other
campaigns, has promoted the Guiding Cases system to a nationwide extent.
Simultaneously, different levels of Chinese courts have engaged in the practice
of judicial law making, while the issue of judge-made law remains controversial
both in practice and in theory. Furthermore, as judicial and legal reforms in
general are embedded in the discourse of the concept of a socialist democracy
with Chinese characteristics, scholars explored this theoretical framework by
asking what socialist democracy might mean and how to apply the different
notions of this concept to the developing legal systems. The existing
innovations, nevertheless, have been increasingly encouraged and will gather
further momentum, especially against the backdrop of recent judicial reform
initiated at the central level. In this sense, the field of judicial reform
will continue to be a key barometer for China’s legal development that will
likely attract much scholarly interest.
Last but not least, the availability of
new data and the development of new research methods will further the
understanding of China’s ongoing legal reform. For example, the SPC’s decision to publish court decisions online and to allow access to official Guiding Cases has, unprecedentedly, established an authentic source of data for empirical assessment of China’s legal cases and judicial practice. As
revealed in the conference, the governmental and judicial commitment to
transparency has fostered a growing number of platforms for both lawyers and
social scientists to conduct quantitative and qualitative research. This trend
is also reflected in the studies on judicature, legislation and regulation, and in different subject areas of law
such as intellectual property, international investment, and labour and immigration issues.
As
the first ECLS annual conference held
outside Europe, the intellectual
event
has benefited greatly from the cultural
heritage and geographical advantages of Hong Kong. With global visions
and a mission to combine wisdom of East and West, researchers,
practitioners and policymakers have reflected on a wide variety of
perspectives and advanced the broad themes of law making, law
enforcement and access to justice in China. As the biggest
international academic
community for Chinese legal studies, the ECLS through its annual
conferences has provided an excellent forum for the exchange of ideas
and a platform for the development of
research collaboration. The achievements of the conference and the
collective work accomplished in the year of
2014 have laid a solid foundation for the success of the forthcoming
2015 ECLS Annual Conference that will be held at the University of
Cologne in Germany.
[1] Xuanming
Pan is a Chinese lawyer and
research fellow at
Faculty of Law, the Chinese University of Hong Kong (CUHK). Sirui Han
is a PhD student at CUHK Faculty of Law and was Fellow of Liberal
Learning Programme at Sun Yat-sen University from
2008 through 2012. Pilar-Paz Czoske is a Master student of
Chinese Studies and Law
and research assistant at the East Asian Institute (Chinese Legal
Culture), University of Cologne. Marco Otten, M.A. (Chinese Studies /
Law) is a
Law student at University of Cologne. Meng Fang is PhD candidate at the
CUHK Faculty of Law. The authors wish to express
their profound gratitude to the
conference co-organisers, Profs. Chao Xi
and Flora Sapio, ECLS Chairman
Prof. Dr. Knut Pissler, Prof. Björn Ahl and all the conference
participants admitting access to their drafts or
abstracts, as well as to CUHK staff members, in particular, Mary Ho and
Terry Lee, for their technical
support in the process of preparing this
conference report. The opening sessions of the conference are
summarised
with audio record, while other sessions are concluded with the
abstracts
submitted by the conference participants. The usual caveats apply.
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