Chinese commercial law
- Course Code:
- Unit value:
- Taught in:
- Full Year
The object of this course is to examine the principal features of commercial law in contemporary China. The course explores the manner in which law regulates the resultant growth of commercial activity in modern China, looking at both general principles and specific substantive areas of law.
Particular attention is given to key issues such as:
- the general principles of civil and commercial law,
- the law-making process,
- the relationship between law, administration and policy,
- the principles that infuse the rapidly growing body of commercial law,
- incorporation of foreign law and legal concepts,
- and implementation and enforcement of law.
Among the topics ordinarily covered in the first part of the course are:
- categorisation of types of law especially relevant for commercial activity,
- general principles of civil law,
- contract law,
- company and enterprise law,
- law relating to foreign trade and investment,
- law governing financial and commodity markets,
- banking law,
- maritime law,
- labour law,
- commercial dispute resolution,
- intellectual property and labour law.
In the second half of the course, a series of seminars provides students with an extended opportunity to present their work in progress on course essays.
Objectives and learning outcomes of the course
The objective of this course is to study the classical foundations of law and legal institutions in China and to examinee some of the modifications to the established system from the middle of the nineteenth century onwards. This is a field with a large and impressive scholarly literature. It is also an area of practical importance and one in which a substantial and extremely interesting body of case law has developed. Students should have a good understanding of the Chinese legal system of Imperial China by the end of the course, and this understanding will also give them a better understanding the basis of contemporary Chinese law and legal system in their concurrent or later studies.
At the end of the course, students should be able to demonstrate that they can:
- Explain and discuss the general features of the Qing dynasty Chinese legal system such as the sources of law, its ethical and moral foundations, the role of punishment, the administration of justice through courts and judicial procedure;
- Explain and discuss the developments in the legal system in the late 19th and early 20th Centuries, including the role of Western influence and social and political change
- Distinguish between and contrast statutory and customary law
- Develop sustained and well-referenced arguments about a selection of areas of substantive law including but not restricted to:
- the Chinese Family , marriage and divorce;
- adoption and ritual succession;
- property and succession , including land tenure;
- social and religious traditional organisations (such as village temples);
- mercantile law: commercial contracts, firms, partnerships,guilds, trade unions, traditional( family) business forms;
- finance including 'native banks'
- Understand, where relevant, the 'Chinese' law applied through the courts of various jurisdictions in East and Southeast Asia, such as Hong Kong and Taiwan;
- Understand some of the developments and continuities in mainland Chinese law in the Republican and Communist periods.
Scope and syllabus
The object of this course is to study the classical foundations of law and legal institutions in China and to examine some of the modifications to the established system from the middle of the nineteenth century onwards. this is a field with a large and impressive scholarly literature (some of which is contributed from other disciplines). It is also an area of practical importance and one in which a substantial and extremely interesting body of case law has developed. Most of the relevant reading materials are readily available at SOAS and in the Internet and these materials will be more than adequate to support the teaching of the course and to assist students in the preparation of coursework.
Following an examination of the evolution and early history of Chinese law, and the jurisprudential debates surrounding these developments, the central focus of the first part of the course is on the general features of the Chinese legal; system as found during the Qing dynasty (1644-1911). This part of the course will also examine developments which occurred during the late nineteenth and early twentieth centuries.
The second half of the course examines in detail a number of areas of substantive law - family, marriage and divorce, concubinage, property ( including ancestral property and religious and charitable endowments), and commercial law. Each of these areas will be examined primarily as an aspect of the law of mainland China. it will also be looked at where relevant as part of the 'Chinese' law applied to Chinese persons and institutions by the courts of various jurisdictions in East and South East Asia - in particular Hong Kong. some consideration will also be given to developments and continuities in the Republican and Communist periods.
Note: No knowledge of Chinese language is required, but students taking the course will be expected to familiarise themselves with number of Chinese terms.
Part A: Legal Values, institutions and Processes
- The philosophical background: the place of law in the history of Chinese social thought - traditional explanations of law and its origins - early rationalisations of the place of law in government - the Confucian and Legalist tradition.
- The evolving institutional setting: the development of the pre-Qing legal system (in outline) - legal institutions of XIXth century China and their functions - the reach of sate authority - delegated legal authority of social organisations
- Sources of law: imperial legislation - judicial law-making - legislative functions of social groups - custom.
- The Criminal Code: the Da Qing Lüli and its background -its scope and arrangement - function of general part - punishments - theoretical elaboration of particular rules - homicide
- Procedural principles; criminal cases - civil cases, extra - judicial dispute settlement
- Twilight of the Traditional legal system: impact of Western influence - social and political changes - the legal system after 1911
Part B: Law and society
- Introduction: statutory and customary law in China - traditional law and custom of overseas Chinese communities in colonial and post-colonial jurisdictions in East and South East Asia
- Legal nature of the Chinese family: lineages and families as legal entities - dual nature of succession
- Marriage and divorce: principal wives- concubines - jiantiao marriage - minor marriage - uxorilocal marriage - other special forms; divorce; reforms of marriage and divorce
- Adoption and the ritual succession; informal adoption of sons - adoption of girls- mui-tsai - the concept of legitimacy- guardianship
- Succession: the ancestral cult - succession to property - family property and private property - division property - wills
- Law of property; nature of different interests in immovable property - statutory and customary interests - divided titles - leases - security interests - property transactions
- Traditional organizations and their property: clan organizations and lineage endowments: educational and other charitable endowments; quasi- corporate proprietors: temples and monasteries and their property - other quasi-corporate proprietors
- Mercantile Law: the guild system - firms and partnerships and their employees - commercial contracts
- Monetary transactions: loans and loan associations - traditional banking institutions - payment instruments - security and guarantees - the comprador system
Method of assessment
Assessment weighting: 50% unseen examination and 50% coursework (one 7000 word essay)