Chinese Law Past and Present and Recent Legislative Developments

by Hongwei Shang on January 11, 2008

in Articles

In an article tiled "Past and Present and Recent Legislative Developments," Hermes Pazzaglini examined the most significant legislative innovations in the People’s Republic China within the broader context of the historical development of the Chinese legal system. 

According to Pazzglini, the current PRC laws can broadly be traced to:

(1) the traditional concept of law and state authority, as a result of which, the authorities’ discretionary powers under morder Chinese law are often wide and unchecked;

(2) civil law, predominantly inspired by the laws of the Soviet Union and Eastern European countries; and

(3) common law, whose influence has gradually increased as the knowledge of English has spread. This is most visible, according to Pazzglini, in the following areas:

  • contracts are becoming increasingly complex and typical common law clauses (such as force majeure and entire agreement) are becoming more frequent;
  • comparisons with Anglo-American laws have become increasingly significant in academic writing;
  • some influences of Anglo-American law are begining to emerge in legislation.

In the article, Pazzglini specifically examines the Chinese company law , bankruptcy law and property law reforms.

Acknowleging the tremendous changes in the Chinese law, especially after China’s accession to the WTO in 2001, Pazzglini emphasizes, however, that Chinese law remains a socialist civil law system ‘with Chinese characterists.’  According to Pazzglini, despite the comprehensive system of remedies against abuse of power by the executive in the 1989 Administrative Procedure Law and the 1999 Administrative Review Law, challenges to administrative decisions are extremely rare and are normally limited to matters concerning fines and policy custody.

Pazzglini envisons that the main tasks facing the Chinese government in the reform of its legal system in the next few years are:

  • WTO compliance: an increase in transpiracy, consistency and certainty of the law and its implementation is required;
  • The formulation of the Civil Code, now scheduled for 2010 (The author emphasizes that given the uniqueness of the Chinese economic system, the Chinese Civil Code has no choice but to be original);
  • The very task of providing an adequate legal framework for a country that not only is one of the largest in the world, but seems now on the way to becoming a world-class economy.

The task is daunting, and China seems to have no intention of taking a shortcut by ditching its traditional legacy or its socialist-law characteristics, Pazzglini observes. However, Pazzglini states that in recent years, China has been making a habit of achieving seemingly impossible goals and he would not be surprised if China were to surprise the world again by achieving this one.

Note: The entire article can be found in Business Law International, Vol. 8, No. 3, November 2007.

Comments on this entry are closed.

Previous post:

Next post: