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Preface xv
Acknowledgments xvii
Abbreviations xix
Introduction
The Transformation of Chinese Law in Context 1
Structure of the Present Study 3
Legal Culture, State Orthodoxy and the Modernisation of Law
Introduction 5
Legal Culture and Heritage 8
An Overview 8
Confucianism 10
Legalism 14
State Orthodoxy and Practice - the Confucianisation of Law 16
The Legacy of History 19
The Beginning of Modernisation - The Wholesale Westernisation of Chinese Law 23
Constitutional and Political Reform at Gunpoint 23
An Overview of the Reform 25
The Choice of Foreign Model 27
The Persistence of Conservatism 28
The Continuing Reform under the KMT - The Modernisation of Chinese Law 29
An Overview - the Continuity of Reform 29
Guiding Principles - San Min Zhu Yi 30
Between Westernisation and Modernisation of Chinese Law 33
Concluding Remarks 36
Experience of Law in the PRC
Introduction 39
The Pre-PRC Communist Experience of Law 40
The Triumph ofIdeology 44
Legal Experience under Mao's Leadership 46
Legal Experience in Post-Mao China 50
The Need for Law to Institutionalise and Generalise Ad Hoc Policies 50
The Need for 'Rational' Law for a Market Economy 54
Ruling the Country According to Law 62
After Ideology - Continuing Westernisation/Modernisation of Chinese Law 65
Legal Transplant and the Modernisation of Chinese Law 65
Using Foreign Law for Reference 66
Beyond Ideology: Globalisation and 'Rational' Law 70
Beyond Specific Western Models: Harmonisation with International Practice 73
Concluding Remarks 75
Constitutional Law
Introduction 77
A Brief Historical Review 79
Constitutional Monarchy through Transformation v. Republic through Revolution - The Path and Pace of Reform 79
Presidential System v. Cabinet System - The Struggle for the Control of Government Powers 81
Centralism v. Federalism - The Struggle among the Warlords 82
Political Elitism and Party Ideology - The Distorted Version of Chinese Constitutionalism 83
The Search for Socialist Solutions with Chinese Characteristics 85
Constitutional Law in Present-day China 90
Development of the 1982 Constitution 90
Fundamental Principles 96
The Party System 106
People's Congress 112
The State Council 119
The Unitary System and Central-Local Relations 121
Fundamental Rights and Duties 129
Interpretation, Supervision and Enforcement 135
Concluding Remarks 144
Legal Institutions
Introduction 147
An Overview of Legal Institutions in China 148
The People's Courts 150
Hierarchy and Organisation 150
Judges and Other Personnel of the People's Courts 152
Judicial Reforms 155
The People's Procuratorates 158
Other Government Institutions 161
The Legal Profession 162
Legal Education 167
Concluding Remarks 169
Sources of Law and Law-Making
Introduction 171
A Changing Constitutional Framework for Law-Making 174
The Law on Law-Making 177
Substantive Issues 180
Integrity of the Legal System and Unity of Law 180
Questions Relating to Guizhang and Other Normative Documents 191
Role of the Communist Party 195
Supervision 195
Interpretation of Law 198
Procedural Issues 203
Concluding Remarks 205
Administrative Law
Introduction 207
Historical Development of Administrative Law in China 209
Changing Conceptions of Administrative Law in Contemporary China 214
Administrative Decision Making and Reconsideration 223
The Concept of Administrative Acts 223
The Legal Framework 226
Procedural Requirements 228
Internal Review of Administrative Decisions 236
Administrative Supervision 242
Overview 242
Legal Mechanisms for Administrative Supervision 244
Administrative Litigation 246
Overview 246
Scope 247
Inter-relationship between Administrative Reconsideration and Litigation 250
Process 251
The Question of Guizhang 252
A Mixed Result 254
Administrative Liability 255
Overview 255
The Scope 256
The Process 257
Concluding Remarks 259
Criminal Law
Introduction 261
The 1979 Criminal Law and Its Development 262
General Principles 266
An Overview 266
Nullum Crimen, Nulla Poena Sine Lege and the Abolition of Analogy 267
Equality Before the Law and Marxism-Leninism-Mao Zedong Thought as a Guiding Ideology for Criminal Law 270
Proportionality (Zuixing Xiang Shiying) 272
'White Collar' Crime - 'Unit Criminality' (Danwei Fanzui) 274
Territorial and Extraterritorial Application 279
Crime and Punishment 280
An Overview 280
Counter-Revolutionary Crimes and Crimes against State Security 283
Crimes Endangering Public Security and Social Order 285
Crimes Undermining the Socialist Market Order and Economic Crimes 288
Crimes Endangering Personal Rights and Democratic Rights 290
Dereliction of Duty 291
Crimes Undermining the Interests of National Defence and Military Duties 291
Administrative Sanctions v. Criminal Punishments 292
The Death Penalty 294
Concluding Remarks 297
Criminal Procedure Law
Introduction 299
An Overview of the Major Deficiencies of the CPL 300
Major Changes in the 1996 Revision 302
An Overview 302
Preliminary Detention and 'Shelter and Investigation' 304
The Presumption of Innocence 310
Exemption from Prosecution 313
Right to Counsel 315
The Trial Process 318
Other Revisions 322
Concluding Remarks 322
Civil Law: Development and General Principles
Introduction 327
Historical Heritage of Civil Law in China 327
The Emergence of Modern Civil Law in the PRC 331
A Politico-Economic Context 331
The First Attempt at Codification in the PRC 332
The Second Attempt 333
The Third Attempt 334
Present Status of Civil Codification 336
An Abstract Conceptual Framework on Civil Matters 338
Civil and Commercial Law Institutions 341
Legal Personality 341
Property 356
Civil Law Obligations 357
Concluding Remarks 361
Civil Law: Property
Introduction 363
Property Rights in Traditional China and Modern Property Law under the KMT 364
Socialist Concepts and Conceptions of Property Rights in the PRC 366
An Overview 366
A Politico-Economic Concept of Property Rights 367
The System of Property Rights before the GPCL of 1986 368
The System of Property Rights under the GPCL 372
The New Rights in rem 374
The Making of the Law on Rights in rem 374
The Law on Rights in rem 378
Concluding Remarks 388
Civil Law: Family
Introduction 391
An Overview of the Traditional Family and Society 392
Historical Development of Family Law in Modern China 395
The Pre-1949 Modernisation of Family Law 395
The 1950 Marriage Law 399
The 1980 Marriage Law and Its Recent Reform 401
The Contemporary Legal Framework on Family Matters 408
An Overview 408
Marriage 409
Succession 412
Adoption 415
Family Planning 418
The Law as an Instrument for and in Response to Social Change 421
An Overview 421
Freedom of Marriage and Divorce 422
Extramarital Affairs 430
Property in Marriage and Divorce 437
Domestic Violence 439
Concluding Remarks 440
Civil Law: Contracts
Introduction 443
The Development of Contract Law in the PRC 444
Present Legal Framework on Contracts 450
General Principles of the Contract Law 453
Equality of Parties 453
Freedom of Contract 454
Performance of Contract 457
Breach of Contract and Damages 458
Concluding Remarks 458
Law on Business Entities
Introduction 461
Business Entities in Transition 462
An Overview 462
The 'Individual Households' (Getihu) (the 'Two Households') 466
Private Enterprises (Siying Qiye) 468
Collective Enterprises (Jiti Qiye) 470
State-owned Enterprises (SOEs) 474
Joint Operation (Lianying) & Enterprise Groups (Qiye Jituan) 474
Foreign-invested Enterprises (FIEs) 475
Rural Cooperatives 475
Towards a Modern Enterprise System 477
Individual Sole Investment Enterprises (Sole Proprietorship) (Geren Duzi Qiye) 483
The Partnership Law 484
An Overview 484
The Partnership Enterprise Law 486
Company Law 491
An Overview 491
Structure and Scope of the Company Law 493
Limited Liability Companies 494
Companies Limited by Shares 497
Corporate Governance 499
Concluding Remarks 501
Securities Law
Introduction 503
Early Experiences and Their Politico-Economic Functions 504
The Coming of Age of the Securities Market and Its Regulation 513
Legal Framework 516
Primary National Legislation 517
Secondary Legislation: Administrative Regulations and Rules 519
Institutional Setting 520
Regulatory Authorities 520
Securities Companies 524
Securities Depository and Clearing Organisations 525
Securities Trading Services Organisations 526
Listed Companies 527
Issuing of Securities 528
The Changing System of Share Issuance 528
Types of Shares 530
The Mini Legal Framework 531
Information Disclosure 532
Trading of Securities 532
Special Rules on B-Shares 533
Legal Liabilities for Violations of the Securities Law 534
Concluding Remarks 535
Enterprise Bankruptcy Law
Introduction 537
A Historical Review of Bankruptcy Law in China 538
Current Legal Framework on Bankruptcy 546
Breakthrough, Compromise & Limitations 548
Scope of the Law & Transitional Arrangements for SOEs 548
Administration 553
Bankruptcy Property and Order of Priority 555
Alternatives to Bankruptcy 558
Financial Institutions 562
Cross-Border Bankruptcy 563
Concluding Remarks 563
Intellectual Property Law
Introduction 565
Rapid Development of the IP Market and Legal Framework on Protection 566
Trademarks 573
Legal and Administrative Framework 573
The Trademark System 574
Domain Names 578
Patents 581
Legislative and Administrative Framework 581
The Patent System 583
Layout Design in Integrated Circuits 585
New Varieties of Plants 587
Copyright 589
Legislative and Administrative Framework 589
The Copyright System 592
Audio Video Products 594
Computer Software 596
Computer Network Publications 598
Competition Law & Commercial Secrets 602
Implementation and Enforcement Mechanisms 604
Overview 604
Public Campaigns and Public Awareness 604
Internal Review and Administrative Sanctions 607
Customs Protection 609
Judicial Enforcement - Civil and Criminal Sanctions 612
Concluding Remarks 617
Foreign Trade and Investment Law
Introduction 621
A Process of Gradual Transformation 623
Law on Foreign Trade 626
Evolution of the Legal Regime Governing Foreign Trade 626
The Regulatory Framework 629
General Principles 631
Operational Mechanisms 634
Trade Barriers 635
Direct Foreign Investment 641
The Development of Foreign Investment Law and Policies 641
The Regulatory Framework 643
Equity Joint Ventures (EJVs) 645
Contractual (Co-operative) Joint Ventures (CJVs) 646
Wholly Foreign-owned Enterprises (WFOEs) 647
Foreign Investment in the Service Sectors 648
Concluding Remarks 650
Implementation of Law
Introduction 653
Implementation of Law - Its Nature and Complexity 654
Implementation of Law - the Case of IP Protection 656
Enforcement of Law - the Case of 'Zhixing Nan' 661
Enemies Within and Without, Systemic and Institutional 668
Politico-Legal Manoeuvres in the Battlefield 681
Contradictions in Reform and the Missed Target 686
Contradiction One: Politicisation v. Professionalisation 687
Contradiction Two: Judicial Independence v. Economic Fragmentation 688
Contradiction Three: Internal Efforts v. External Constraints 689
Concluding Remarks 690
Conclusion
Chinese Law Transformed 693
Towards a Rule of Law? 694
What's Next? 699
Select Bibliography
Sources of Chinese Law and Documents 703
Academic Works in Chinese 706
Academic Works in English 730
Index 745
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Add Chinese Law: Context and Transformation, This book examines the historical and politico-economic context in which Chinese law has developed and transformed, focusing on the underlying factors and justifications for changes. It attempts to sketch the main trends in legal modernisation in China an, Chinese Law: Context and Transformation to the inventory that you are selling on WonderClubX
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Add Chinese Law: Context and Transformation, This book examines the historical and politico-economic context in which Chinese law has developed and transformed, focusing on the underlying factors and justifications for changes. It attempts to sketch the main trends in legal modernisation in China an, Chinese Law: Context and Transformation to your collection on WonderClub |