Contemporary Chinese Law in Context - Essay Example

?The Chinese has become a strategic actor in law making, with an aim to tackle the changes brought by economic globalization. Please discuss with one example. Ever since 1978, Chinese legal system has undergone a drastic change. Almost every aspect pertaining to society, economy, market, property, etc has been revised and reformed. All contemporary laws both the existing ones and the newly formed, aims at constructing a ‘capitalist China’. Some of the present legal reforms, however, are borrowed from legal norms of foreign countries. By making some legal reforms and amendments, Chinese government intends and aspires to formulate standard legislative base for the country and enhance further growth and development of China (Potter 2001, p. 4). Traditional Chinese Laws were practiced in China even during the latter half of twentieth century. The traditional laws were highly influenced by philosophical and political doctrines propagated by Confucius. Thus, the traditional Chinese laws, government regulations and penal code had Philosophical influence (The Spirit of Traditional Chinese Law n.d., p. 2-3). This paper deals with some of the Chinese laws which were revised and those which have kept pace with the changes brought about by economic globalisation. While some of the existing laws were amended like the Competition law, social law, Property laws, some new laws like Food and Beverages Law, Antimonopoly Law, etc were introduced. This paper reviews some of those laws by focusing on the circumstances which required introduction of new laws, components of new laws, their implementations and effectiveness in the Chinese Society. At the same time, this paper also examines categorization of laws basing upon their formation as well as their limitations or drawbacks. Chinese laws after 1976 to 2013: Contemporary laws: westernization Chinese legal system got modernized only after the country earned its Republic status, and especially after the reign of Qing dynasty. The effects of Cultural Revolution necessitated the requirement for formulation of some new laws and reformation of some. It has been observed that, during the last thirty years China has put most efforts in implementing legal provisions. Not only this, China has also achieved significant amount of success in redefining its legal norms, development and innovations in institutions and systems pertaining to laws and regulations. Modern day Chinese laws are meant for serving long term goals. Some of these include modifying public behavior, family planning policies, proper functioning of social systems, and above all making up for flaws that were committed by Chinese legal systems before modernization (Dingjian 2010, p. 40). Over time, the legal reforms in China have been results of direct influence of legal systems of developed Western countries. However, China has blended them with their specific problems and has customized the laws to create a system which would best serve its purpose. In order to introduce a new behavioral model, China had to introduce new legal standards. Thus, modern Chinese legal concepts are aiming at shaping up a large- scale, proper and consistent legal- structure for China (Dingjian 2010, p. 41- 42). The Chinese legal system can also be divided into two broad categories- the state made laws and the non- state made laws. State made Law All the formal acts and regulations that are formulated and implemented in recent times are classified under this category. The state laws consist of standard legal provisions and procedures and in every aspect are held superior to non- state laws. Chinese laws are regulated by multiple authorities, and the division of power is centralized. Thus, China has a well defined law and regulations for its citizens, thereby promoting equality and peace (China's Current Legislation Structure). Non- State made law The non- state laws refers to those codified and un-codified laws and regulations that are practiced in a nation without maintaining any international convention. Numerous such laws could be found across Chinese provinces. These non- state laws varied from province to province from courts to courts. However, like the state- formed laws, sufficient measures were not taken to resolve issues arising from non- state laws. Rather they were ignored even while reforming current legislative system and formulating new legal acts. General Principles of Civil Law (GPCL) are presently in charge of controlling non- state made laws. (Tang 2011, p. 2- 11) External factors that influenced Contemporary Chinese laws Extraterritorial privileges and demands for legal reforms by the Chinese government in the past is one of the factors that have influenced contemporary Chinese laws. The foreign subjects in China were not subjected to local jurisdiction and civil trials, and so could not be arrested by local Chinese authorities. Rather, they were put to trial by their own respective national authorities. Also, any Chinese citizens accused by foreigners were judged by Chinese Mixed Courts. These laws required amendment as the policies were compromising with peace and security of China. Meantime, the Western countries took the extraterritorial policy as imperfect and therefore objected to it. They stated that penalties for crime were too severe and the Chinese laws had no provisions for special cases, homicide and crime done after being compelled. Also, the court practices, too, were corrupt. Thus, reforming this system became important for China (Zimmerman 2010, p.41). Secondly, the contemporary Chinese laws are influenced by historical determinism. This implies that its chief aim was to transform the feudalistic nature of society into a utopian society of Communists. In this regard, the laws were heavily influenced by doctrines of Marx and Lenin. Confucianism was reintroduced by Mao. Thus, the organic laws developed during this time were based upon Soviet laws. However, during Cultural Revolution, legal practices were damaged and justice was awarded by Ministry of Public Security. Lastly, due to increasing amount of foreign investment since 1980’s legal reformation was required. After Republic of China was recognized by several Western nations, it had to adopt economic liberalization policies (Zimmerman 2010, p.46- 52). Land Property Law: Legal protection The Property Rights are framed to settle three important types of issues- issues related to possession or control of property, time period and benefits of using properties and finally disposal of properties. It primarily deals with ownership issues under varied circumstances, documentation and variation of clauses across provinces and sectors. Again, property rights could be classified into three major types- real property, personal property and fixtures. Contemporary Property Rights favors privatization of lands (Oi and Walder 1999, p. 4). One of the important features of Property Rights Law is that, the land or property holders must pay rental value to Chinese government throughout the period of occupancy and renew the terms from time to time. In case of personal properties, especially residential properties, subjects are required to pay simple fee or ‘little- cost’ pay common in most of the nations. In case of commercial properties, the Chinese government possesses the right of negotiation regarding expiring rights. The contemporary ‘land right system’ performs the function of informal zoning arrangement, that is, it regulates the actions and legal proceedings in a formal way whenever there is any announcement from Chinese government regarding availability of land. (Stein 2012, p. 40) In opinion of Oi and Walder (1999, p.3-4), the Property Rights focuses on rural industrialization or ‘corporatism’. In urban areas, it is entrepreneur- centered, thereby paving way for a ‘capitalist China’. This is quite contrary to the yesteryear practices which resulted in gain of social elites only. The recent improvising of land property law has experienced significant change and has developed spectacular growth rates. In contemporary scenario, this law is also effective in eradicating corruption and safeguarding private interests of general Chinese people (Stein 2012, p. 122) Contract Law: Legal Protection of Market Transaction The contract law is one of the most significant legal reformations adopted in recent times. The Contract law was introduced on March 15, 1999 effective from first of October (Zhang 2006, p 1). The Contract Law was introduced to serve purposes of individual and state as well. The Contract Law protected and marked the limits of allocations to commercial banks, settled disputes and issues arising from a bad bargain, increased effectiveness and efficiency of Chinese commercial system, made expectations of parties entering into contract clear and comprehensible and above all, it acted as an instrument for social control which aims at protecting interests of individuals. Over time, the Contract Law has proved immensely effective for both commercial and civil issues. The law consisting 23 chapters and 428 articles was introduced as an initiative to transform China into a market- oriented economy (Zhang 2006, p 15). The Contract Act could be further sub divided into General, Specific and Supplementary Provisions, and is often regarded as hybrid form. The Contract Law ensures that parties who are entering into any contract are bound by acceptance of offer and gain mutual benefits. The explicit and implicit details of acts to be performed, expiry date, liabilities, and major conjugal complications and obstructions, further simplify the commercial procedures are stated in details under Contract Law. Terms leading to breaching of ‘Contract’ are also stated along with possible remedies. Reformation of Contract Law has directed Chinese economy towards market- orientation. The law favors State plans and any violation of State plans would lead to legal complications. This is equally applicable for natural and legal persons as well as business transactions involving merchandising of products and services. (Zhang 2006, p 19- 50) Antimonopoly Law Chinese Government introduced Antimonopoly Law on August 30, 2007. It came into effect on August 1, 2008. This law aims at regulating monopolistic acts within domestic and foreign markets of China, and development of substantive provisions along with administrative operations. This perform several crucial business functions like regulating price changes of commodities, limiting sales output of commodities, maintaining interests of each division of sales market, enforcement of other monopoly agreements issued by Chinese Antimonopoly Authority, and finally regulating and controlling the amount of competition existing in Chinese markets from time to time (Foer and Cuneo 2010, p. 501). However, the Antimonopoly law is still in its initial stage and therefore requires more development of provisions and aspects. In present times, the Antimonopoly Law is applicable equally on natural and legal persons as well as for organizations, involving tangible and intangible assets and personal relationships (Li 2011, p. 37- 38). The Procedure Law facilitates any person or organization to take debate or disputable issue to all courts including the Supreme Court. Another provision of Antimonopoly law is that the private cases are put into trial under a separate body called the Intellectual Property Court, which is a judicial body within the people’s court. Thus, this law not only allows healthy competition among business operators but at the same time also includes provisions for granting injunctive relief (Foer and Cuneo 2010, p. 502- 505). One of the limitations of present practice of Antimonopoly law is that, in case of reputed business entities, the Antimonopoly law has inadequate provisions to declare which party is to be qualified for plaintiff. The fact that mode of damage- calculation differs from court to court under Antimonopoly law, implies that this law still requires further development (Foer and Cuneo 2010, p. 504-505). The Chinese regulations require administrative proceedings before legal measures are adopted in complicated areas of law, like the ones dealing with securities. This law has also paved way for Antitrust Law, whose aspects are closely related to antimonopoly law (Fleisher 2008, p. 95). The Competition Law is invariably related to Antimonopoly Law. The Competition Law started with introduction of Reform and Opening- Up Policy and Protection of Socialist Competition during 1990’s, and gradually the law has reached an advanced stage in present times. This law is provisioned under the Antimonopoly law. Its chief function includes regulation and restriction of certain market mechanisms, compartmentalization and above all promotion of competition through legal means. It is related to Antitrust law in the sense that it monitors the level of respect and privacy the competitors maintain for each other. The Anti- Unfair Competition Law, which was implemented on 1993, is responsible for ensuring that no illegal conduct takes place within a free economy. These policies are particularly useful for the ‘planned economy’ approach undertaken by government of China in present times (Ming 2009, p. 4). Furthermore, the Competition Law contains procurements for sociological understanding of market economy of China, especially economic sociology on Chinese law and market economy and business laws in contemporary China. Locating Laws in Society Several problems have come up in Chinese society in recent times. To control and regulate them, some reformations were required in existing legal system of China. Thus, some social laws were introduced. One such law is regarding aged citizens. It is mandated that every young Chinese children must pay regular visits to their grandparents and other elder members in a society. Also, grown’ up children, who reside at separate apartments, need to pay regular visits to their parents and other elderly family members as well as support them financially and mentally. The Law on Rights and Interests of Elderly People got approved on 1996 and was amended by Standing Committee (Lubman, 2013). This law has been the result of one of the most important issues in present day China-- increasing number of aged people. It has been estimated that by 2020, China will top the list of nations having maximum amount of aged population. A large section of this population suffers from lack of financial security, family comforts, and social support and hence become helpless and frustrated amidst extended families. This has prompted numerous senior Chinese citizens to opt for extreme measures like suicides in past few years. This law has been drafted as a measure to provide solution to such social problems (Elder Care Policies in China: The Social Value Foundation Is in the Family, 1981, p. 3-12). Among other social laws which were developed recently is “Civilized Behavior Promotion Law”. This law stresses upon ten behavioral manners which every citizens are expected to follow in public. Some of the habits that are highlighted are spitting, public sanitation facilities, poop of pets, etc. Any disobedience was to be regarded as punishable offence and fines would be charged against the offender. This law aims at improving moral conducts of citizens and also improvement of environment and public health. Added to it, this law stipulates the Chinese citizens to engage into community service on a regular basis (Lubman, 2013). Cyber Regulations: Baidu and qmyy.com China follows strict policies regarding internet and strictly regulates international wire agencies operating in China. It imposes restriction on circulation of economic news. The reputed ‘Reuters’ and ‘Dow Jones’ are monitored by ‘New China News Agency’, an agency by Chinese government. Pornographic contents are also blocked. Strict cyber laws are also implemented in a bid to keep away spywares, malwares and hacking, though in recent times numerous nations have traced Chinese connections behind major hacking cases (Rosenoer 1997, pp. 333- 335). Baidu is the most popular search engine in China. Presently China is aiming at making fullest use of its e- commerce potentials. Thus, Baidu propagated and is immensely supported by Chinese government. It functions by listing services of websites. These websites are liable to pay according to their respective hitting points. Due to this regulation, a popular qmyy.com experienced sharp decline in hitting points and was removed from Baidu’s listing service. It is a part of long- term strategy of Chinese government to use internet for economic modernization. China has long been in economic isolation and has developed all by itself during that time. Presently, China tends to retain some of it and therefore has filtered admission and penetration of certain international websites and search engines (Battersby, Siracusa and Ripiloski 2011, p. 144). Food and Beverages law: Coca cola and Huiyuan Since 2009, China has been increasingly concerned about safety of food and beverages, and therefore has new food safety laws framed. These laws were framed with an intention to produce superior- quality as well as safer products. The laws also aimed at manufacturing food and beverages full of nutrients made from fresh components and ingredients. Another reason behind present reformation of Food and Beverage Law is that the Chinese government aims at improving perceptions about processed food. The laws also focus on maintaining healthy competition within market. For this reason the Chinese Ministry of Commerce has not allowed Coca cola to take over Huiyuan (Bonarriva, n.d., p. 22). Shortcomings of current legal implications Jeffery, Firestone and Bubna-Litic (2007, pp.405- 408) share the view that, though the legal reforms and amendments made by China during last decade have proved to be a success, but still there exists certain aspects which requires to be reconsidered and revised. The legal improvising have no doubt contributed in China’s gross domestic product, but still they have not succeeded in imparting equity, when viewed from a broader perspective. The present social and legal condition of China could be classified as transitional state. And therefore China is finding it difficult to select suitable standards for comparison or find compatible role models to follow. Added to these, presently China is bowed down with random conflicts between different groups and classes. High corruption and weak environmental institutions, limited availability of skilled human resource, defective and often failing governance system also accounts for the flaws or ineffectiveness of reforms and amendments of Chinese legal system. Conclusion Over time, China has been undergoing severe socio-political and economic crisis. The legal environment in China lacked adequate standards and hence was failing. This prompted National People’s Congress (NPC) to build up a stable legal system which would not only ensure equality of all people but at the same time would also ensure equal privileges by State and not on personal whims. The legal reforms that are undertaken in recent times are proving to be effective, their success measured by economic accomplishments of China (Clarke, p. 6). By amending and reforming several laws and incorporating few others within the existing legal system, China has succeeded in providing solutions to most of its problems. Success of China lies in the fact that it has not failed to blend the State objectives along with contemporary issues arising in China regarding issues like, property, business dealings, criminal offence, illegal means, contracts, market monopoly, food and beverages, cyber crimes security and social issues and at the same time kept the pace with economic globalization. For achieving success and stability, every nation, especially the developing ones like China needs to decide on its priorities first. However, it has to be remembered that every act or law implemented in a democracy will have its own set of advantages and disadvantages. How China would overcome the shortcomings in near future completely depends on itself. References 1. Battersby, P, Siracusa J. M and Ripiloski, S 2011, Crime Wars: The Global Intersection of Crime, Political Violence and and International Law, ABC-CLIO, California. 2. Bonarriva, J n.d, China’s Agricultural Trade: Competitive Conditions and Effects on U.S. Exports, DIANE Publishing, US 3. China's Current Legislation Structure n.d., China Through A Lens, viewed 13 May. 2013, Read More