I am happy to pass along the Conference Report of the 9th Annual meeting of the European China Law Studies Association, held last November in Hong Kong. (for earlier discussion see here and here).
The Report may be found at the website of the ECLSA and access here. It is also reproduced below.
9th Annual Conference
15th to 16th November 2014
Making, Enforcing and Accessing the Law:
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 conferencegathered 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
II. COURT REFORM, DISPUTE RESOLUTION AND ACCESS TO JUSTICE
III. ENFORCING THE LAW: THE BUSINESS AND NON-PROFIT SECTORS
IV. CRIMINAL JUSTICE, HUMAN RIGHTS AND THE INTERNATIONAL LEGAL ORDER
V. MAKING THE LAW: JUDGES, LEGISLATORS AND BEYOND
VI. SOCIAL TRANSFORMATION, SOCIALIST DEMOCRACY AND THE CHINESE LEGAL REFORM
VII. LAW, THE MARKET AND ECONOMIC GLOBALISATION
VIII. CONCLUDING REMARKS
I. RULE OF LAW AND THE GLOBALISED LEGAL PROFESSION
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 inthe 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 decisionsand 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 environmenthave 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 governancewithin 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
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
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
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
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 Zhengfasystem. The judicial empowerment vis-à-visother 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
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