Chinese law: code and conduct

China is the most populous nation, the largest developing country with relatively high levels of poverty, the fastest-growing economy, and one of the world’s most polluted countries. Bearing this in mind, the Chinese central leadership is keen to address environmental and developmental concerns concomitantly and strike a balance between environmental protection and economic development. One way that this can be achieved, in the author’s view, is through the development of green technology.
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\nInstead of repeating what has been said in the existing literature, this thesis attempts to approach the issue of green technology from a new perspective of law and institutional design, and seeks to stimulate green technological change through the development of a legal system that engages environmental law and patent law in a concerted effort to incentivize the innovation and dissemination of green technology to the greatest extent. This thesis argues that by improving a synergy between the Chinese environmental law and patent law, especially by using the Chinese patent law as an environmental instrument, the innovation and diffusion of green technology can be better promoted. This in turn would contribute to China’s environmental improvement without necessarily impeding economic growth or technological progress.
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\nSpecifically, this thesis puts forward three main ways in which patent law can be used as an environmental tool, i.e., the creation of a rationale governing both environmental law and patent law in a nation’s legal regime for including environmental goals in patent law, environmental law’s adoption of patent system as an environmental regulatory tool, and the “greening” of patent law. This so-called“three-step approach”, in conjunction with the proposed specific provisions, measures or mechanisms developed under each of the three approaches, will constitute a theoretically effective legal framework and can be used as criteria for assessing the Chinese law’s effectiveness in synergizing environmental law with patent law and using patent law as an environmental instrument. A total of 28 aspects and sub-aspects of the Chinese law have been examined against the proposed criteria, with a total of 31 points awarded. A notable gap exists between the Chinese law and the proposed theoretically effective law because had all the aspects and sub-aspects of the Chinese law fully met the criteria, the total score would have been 84 points other than 31 points. It is worth noting that such an assessment of the Chinese law is not conducted alone, but on the basis of a comparison with the counterparts of the US and European laws, which makes the evaluation of the Chinese law more meaningful and accurate and helps to identify lessons from the experience of the US and EU. Based on such vertical and horizontal comparisons, this thesis raises specific proposals for China’s legislative reform, with a view to synergizing the Chinese environmental law with patent law and using the Chinese patent law as an environmental instrument.

How do we Know When an Enterprise Exists? Unanswerable Questions and Legal Polycentricity in China

Chinese officials accused of forcing abortions in Shandong

Effective implementation and enforcement of laws and regulations will to a large extent determine how successful the Belt and Road Initiative (BRI) turns out to be. Mutual respect and trust between trading partners is crucial. This chapter explores how the various legal and regulatory systems can be developed to encourage and enhance trustworthy behavior. The countries involved in Belt and Road (BR) are very varied in their legal and regulatory approaches, ranging from those which rely heavily on religious teachings to those with common law or civil law traditions. Each type of law takes a different approach to matters which are relevant to trustworthiness. Achieving a sustainable legal and regulatory framework for BR requires, as a matter of urgency, that attention is given to how the various legal systems interact. BR follows a long tradition whereby the Silk Road facilitated interchange between the great civilisations of China, Mesopotamia, Persia, India and Rome, and later Europe. Achieving this will require that trust between nations is established, not only at the highest levels of government, but also between individuals, companies and communities. Lack of trustworthy behaviour can adversely affect relations between governments (for example, between Greece and Europe), between companies (leading to numerous defaults and corporate failures, including those which accompanied the Global Financial Crisis (GFC)) and between individuals. In what follows, we explore the various methods whereby shared values (or at least a set of shared beliefs) can be developed, in order to ensure that the behaviour of those in authority is trustworthy. This varies from country to country, from sector to sector, and under different legal traditions. In doing this we draw on work carried out at Oxford and elsewhere on how trustworthy behaviour can be encouraged. We argue that it is the role of the Law, including in bilateral and multilateral trading arrangements, to ensure that relationships between market players and stakeholders are as fair and transparent as possible, through mechanisms that influence norms and hold those who behave in untrustworthy ways to account. Chinese law and practice is contrasted with those in other jurisdiction in order to explore the relative merits of each. Sustainability of the BR legal system requires consensus and long-term sustainable relationships.

There is a considerable body of literature on the relationship between common law and various systems of personal laws especially in the Asian context. My only excuse for adding yet another account is this: A technical legal description of this relationship, focusing on such topics as marriage, divorce, inheritance, and so on, adds a real and important dimension to the study of culture contact. Except in Hong Kong, common law is no longer the dominant political system; it has become, with local variations, “government law” in the territories under consideration. Since law is the instrument most often used in the implementation of new government policies affecting family matters, for example, it seems important that some attempt be made to describe the techniques of interaction and to set out the present law as accurately as possible. Hopefully this essay will serve as skeleton reference material on the relation between these two systems of law. To accomplish this aim I will: (a) describe the ways in which the common law has been adapted so as to take account of Chinese law, (b) state the “principles of Chinese law” which the courts have formulated in the course of this adaptation, and (c) note the points at which the respective courts in the three territories have differed in their interpretation regarding the content of Chinese law.

The emergence of crypto assets, a novel category of assets, has posed significant challenges to property law across various legal systems. The integration of these intangible assets into property law frameworks proves to be complicated for many civil law jurisdictions, which tend to adhere to dogmatic approaches. In contrast, Anglo-American common law and Chinese civil law systems, despite their divergent origins, have exhibited legally pragmatic responses to intangible property, including crypto assets. By examining the development of their property laws concerning property conceptualization and the treatment of emerging intangible assets, this article explores how the historical foundations of Anglo-American common law in feudal tradition and Chinese civil law in communist ideologies have fostered adaptable and flexible notions of property. This adaptability is argued to be a strength within both the Anglo-American common law and Chinese civil law systems, enabling them to accommodate innovative intangible assets more easily compared to their civilian counterparts.

The article is devoted to an Italian lawyer, a prominent specialist in comparative law Gabriele Crespi Reghizzi (1941–2022), who in the last period of his life worked at the Department of Law of St. Petersburg State University. It talks about main milestones of his academic career: emergence of interest in Soviet and Chinese law, acquaintance with leading scientists in these fields, creation of innovative works. In addition to the law of the USSR and China, he was interested in the law of states of Eastern Europe, India and Africa, focusing on not only genesis of legal systems, but also their development and interaction in the context of international relations. The knowledge and experience of G.Crespi Reghizzi, as it seemed, should have remained within the framework of a narrow academic interest, but economic reforms in China in the 1970s and 1980s and political changes in Europe in the 1980s and early 1990s gave them a fresh start. Professor G.Crespi Reghizzi was widely known by his professional activity as a business lawyer, international commercial judge, consultant on legal aid projects for post-Soviet states. His contribution to the codification of civil law in Russia is noted. Among G.Crespi Reghizzi’s distinctive features as a scientist, the author notes his extremely attentive attitude to legal terminology, and in the case of the Chinese language — to legal ideography, extensive use of primary sources and non-traditional sources, knowledge of several foreign languages. He attracted people, students and colleagues, by virtue of his personal qualities as attentiveness, spiritual generosity, originality of views, willingness to share his exotic experiences. To compile a complete bibliography of G.Crespi Reghizzi’s works seems to be quite difficult, since, besides professional legal publications and publishing houses, he willingly published in a variety of places and forms, wrote a lot of practical and popular scientific works, not to mention the linguistic diversity of his publications. Nevertheless, the article presents his main works, which made a great contribution to understanding the legal system of socialist and post-socialist countries and comparative law.

This article is a response to Morality And Law In A Global Society: A Place For Natural Law Theory? The first part is a summary and comments on Honorable Rollin A. Van Broekhoven’s survey of the natural law tradition and its relevance to the analysis of the controversial U.S. Supreme Court decisions. Then it addresses Mencius and the Chinese natural law tradition based on the researches of Hu Shih and John C. H. Wu, and the affinity of the natural theories of Mencius and Thomas Aquinas are explored. The third part analyses the sensational case of Yu Huan (2017) from the point of view of natural law and takes it as an example of the relevance of natural law to the theory and practice of contemporary Chinese law.

Much ink has already been spilled on the Chinese tort law system, focusing in particular on its development, formulation, and transplants from other legal systems (particularly from German and French civil law). Very few, however, addressed the relation between the statutory reform and Chinese unofficial law. Resting upon the assumption that law is institutional and cannot be alienated from its cultural contexts, this chapter aims to describe the multi-layered framework of the Chinese tort law system in light of Bussani’s legal stratification doctrine.

The subject of the research is the methodological problem of identification of some world regions as a legal systems and legal families. In recent years, in practical comparative legal studies (calculation of indices of the rule of law, human rights and freedom of the press), as well as in theoretical comparative legal literature, there has been a problem of incorrect universalization of legal system identification criteria based on the Western legal tradition alone. This problem is also particularly clearly manifested in the uncertainty of European legal space regions in the context of their attribution to a separate legal family. A striking example of such an uncertain region is Eastern Europe.The purpose of the research is to substantiate the directions for improving legal comparative legal research in the context of postclassical methodology, namely the approach from the point of view of legal values and in the aspect of legitimacy of legal institutions in the investigated legal system.Methodology. The interdisciplinary approach serves as the methodological basis of this research. It provides a synthesis of methodological tools of classical jurisprudence and methodological techniques and achievements of related socio-humanitarian fields of knowledge and post-classical jurisprudence. In our research we use sociological studies, especially legal sociology, political science and legal axiology, which allows a comprehensive study of the legal systems and legal families on a real case of investigated countries.Results and conclusions. The authors revised the existing criteria for classifying legal families, considered the criteria for the separation of legal families, as well as the classifications of legal families themselves, proposed by R. Leger, K. Zweigert and H. Ketz, V.A. Lafitsky. From the standpoint of non-classical science, authors propose a mechanism for verifying the legal system from the legal axiology point of view. This axiological approach can be applicated through an assessment of the legitimacy of norms, according to its value basis. In a dependence of affiliation of these values as a western or eastern (liberal or conservative etc.) it is correct to conclude that one legal system belongs to a particular legal family.The main results. The authors conclude that the prospects for the development of contemporary comparative law also lie in strengthening an interdisciplinary approach that allows combining the achievements of jurisprudence with sociology, philosophy, economics and cultural studies. The conducted integrative study of legal traditions opens up new possibilities for the analysis of legal systems. For example, it allows us to solve a specific research problem on the relevance of the legal systems of Eastern Europe to the Slavic legal family. The prerequisites for substantiating this conclusion were a shift in focus from the analysis of a not entirely universal criteria of legal ideology to the more basic criterion of legal axiology. It also allowed us to offer tools that opened up opportunities for a more differentiated definition of values relevant to the corresponding legal system through an analysis of the legitimacy of institutions and norms.

Positive law or a legal system as a closed logical system has its own inner coherence and this characteristic is a very important element of a system. It is important because the logical structure of norms which lead concepts and conceptions, at least in theory, is the guarantee of objectiveness or impartiality (thus ‘rule of law') of a legal system. In the second part of the nineteenth century and the first decade of the twentieth century however, legal theory was dominated by a kind of reductionism. It reduced the legal system to logical coherence. Exaggerating the logical element, it neglected other aspects of law – namely social reality and ethics. The first reactions were important but they depended completely on temporary social or judicial needs and were unsystematic. The second phase was not only a reaction but also gave birth to a new science, the sociology of law. So sociology of law has to have two opposite aspects: first, in order to prevent legal systems being withdrawn it always has to be critical and second, to help solve social problems it has to build up a strong theoretical base.

This chapter elaborates on the claim that ideology provides a useful lens to understand the development of the Chinese legal system. In spite of expectations both inside and outside of China, this system does not seem to be evolving towards a rule of in the Western sense of the term. This chapter claims such expectations were based on an approach paying short shrift to the role of the Party in developing the legal system, and its ideology in particular. It further analyses CCP ideology in the light of three political questions: what is the purpose of politics, who should be in charge and what methods should they use. Lastly, it explores the impact of the answers to these questions on the trajectory of law in China. It suggests there many of the perceived flaws in the legal systems are logical consequences of its ideological structuring, or even fundamental features. Specifically, it finds that legal rationality in China remains tightly circumscribed in its scope of application, ideology is a potent tool to provide meaning to political terminology, and discipline the CCP's organisation.

Основоположники сравнительного системного подхода к изучению права (среди первых были американец Р. Шлезингер, французы Р. Давид и М. Ансель, итальянец Р. Сакко, канадец П. Гленн, позже немцы Х. Кётц и К. Цвaйгерт и др.) на рубеже 1960-1970-х гг. совершили прорыв в правовой науке. Они завершили создание основ нового направления сравнительно-правовых исследований, выделили и проанализировали различные правовые общности прошлых веков и современности, назвав последние семьями или системами (англо-саксонская, романо-германская, социалистическая, мусульманская и др.). Им следуют многие российские авторы. Термины «правовая система» и «правовая семья» часто используются как одинаковые, понятия системы и семьи, как правило, не даются, социальная суть основных (глобальных) правовых систем игнорируется. Англо-саксонская семья права и тоталитарная социалистическая правовая система находятся в одной и той же классификационной единице. В статье предлагаются новые подходы и иной синтез правовых систем. Автор использует методы исторического, логического, дедуктивного, индуктивного и сравнительного исследования, формационно-цивилизационный подход и на этой основе выделяет три основные правовые системы современного мира: мусульманскую систему (мусульман более 1,7 млрд. человек), либерально-полусоциальную капиталистическую систему (распространяется на 4,5 млрд. человек, включая многие развивающиеся страны) и тоталитарно-социалистическую систему (1,5 млрд. человек). При выделении правовых семей используется традиционный подход сравнительного правоведения, но с учетом социальных и культурологических правовых особенностей. На этой основе в рамках каждой из глобальных систем выделены правовые семьи. В системе мусульманского права есть фундаменталистская (радикалистская) и модернизированная (продвинутая) правовые семьи, а по другому основанию деления — суннитская и шиитская правовые семьи; в либерально-полусоциальной капиталистической системе — англо-саксонская, романо-германская и другие семьи (современные исследователи называют латино-американскую, скандинавскую и др.); в тоталитарной социалистической системе — ортодоксальная и частично модернизированная семьи.

This study presents results of the first empirical study of the role of Chinese in the newly established bilingual common-law system of Hong Kong. It considers whether Chinese performs the same role as English in the influential appellate court of Hong Kong. The study examines three facets of civil appeal. First, it asks if civil appeals conducted in Chinese exhibit the same level of legal representation as civil appeals in English. Second, it examines the likelihood of being professionally published among appeal judgments in the two languages. Third, it compares the financial stakes involved in Chinese and English appeals. The results suggest that despite what is stipulated in the Hong Kong Constitution, Chinese plays a marginal role in the higher courts of Hong Kong. There is no substantive development of a Chinese common law in Hong Kong. Instead, the availability of Chinese creates easier but problematic access to the legal system by the public in the form of pro se litigants. The findings also show that the reasons leading to the continued dominance of the English language in Hong Kong are global and social. As such, English is unlikely to be replaced in many postcolonial common-law systems in the world.

Globalization of the economy, public affairs, human rights, environmental issues and laws indicate the developing tendency of human beings and society, and this has a great influence on the third reform of Chinese law in many aspects. Upon its entrance into the WTO, China carried out a large-scale clarification and amendment of its laws and regulations, and incorporated itself into the global governance structure. This marks the beginning of the third legal reform in the country. This reform includes the reform of the political and legal system, restructuring of the legal system, and evolution of the real meaning of law. In the future development of Chinese law, the fundamental nature of modern, global and human civilization, and the legal profession will penetrate much more into the whole Chinese law and its operation.