On March 11, 2014 (Beijing) and March 10, 2014 (Boston), scholars from China and the U.S. attended the inaugural Renmin University International Virtual Workshop (RUIVW). A new platform for scholarly communication, RUIVW takes advantage of the internet videoconference technology to convene scholars from various parts of the world to discuss Professor Duncan Kennedy’s work, three Globalizations of Law and Legal Thought: 1850–2000. Professor Duncan Kennedy’s seminal work on the globalization of law and legal thought was introduced to China in 2009, when Gao Hongjun, a Chinese legal philosopher, took on the task of translating it into Chinese.1 The article (hereinafter “Three Globalizations”) has since been treated seriously by the Chinese legal academia, with prominent figures such as Professor Gao discussing the work in depth and a number of doctoral theses devoted to analyzing its core ideas.2 RUIVW was yet another occasion for Chinese scholars to engage its ideas and try to bring its insights to the Chinese context. The participants of RUIVW on the Chinese side are accomplished jurists and promising young scholars in jurisprudence, private law and public law. On the American side, Professor William Alford is a leading scholar in comparative law and a long-time friend of the Chinese legal academia. Professor Kennedy is an eminent figure in jurisprudence and founder of Critical Legal Studies (CLS). The Doctor of Juridical Science (S.J.D.) candidates from Harvard Law School and Professor Shen Yuanyuan, a legal scholar teaching at Boston College of Law and Zhejiang University, attended the workshop as well. The workshop participants discussed issues such as legal transplantation, the globalization of legal thought, the rule of law, the judicial system, the evolution of legal norms, etc. It was a fruitful and enlightening experience for all the participants. The following is the transcript of the first RUIVIW session.
Concerned about China’s future, a panel of Chinese legal scholars invited Professor Duncan Kennedy to discuss legal transplants and the rule of law. This commentary contextualizes their ideas and concerns and aims to clarify some concepts and arguments that underlay their discussion. At times though using the same words the participants were talking about different things. By legal transplants, the Chinese scholars were initially speaking of specific laws, while Duncan Kennedy was referring to legal thought. By law being political, Duncan Kennedy largely meant the distributive and discretionary nature of adjudication, while the Chinese participants were criticizing the interference by the Party and the government with judicial practice. Yet through this encounter, much was exchanged and debated. Regarding the triggers of legal transplants, the Chinese participants emphasized the law’s quality and the donor’s power, while Duncan Kennedy was more interested in chance and the recipient’s strategy. Among the multiple ways of defining the rule of law, both sides agreed that it should be an institutional framework within which an independent judiciary checks the executive power. Nonetheless, each side had their own hopes and reservations on how this institutional framework can enable judges to faithfully apply the law.
The legislation of choice-of-law rules for torts has a long history in China. General Principles of the Civil Law of the People’s Republic of China of 1986 (GPCL), Maritime Act of the People’s Republic of China of 1992 (Maritime Act) and Act of the People’s Republic of China on Civil Aviation of 1995 (Civil Aviation Act) provide respectively the choice-of-law rules for general tort, maritime tort and limitation of liability for maritime claims as well as tort arising out of civil aircraft. The Act of the People’s Republic of China on the Application of Laws in Foreign-Related Civil Relations of 2010 (PIL-Act) not only brings developments and changes to conflict rules for tort in general, but also provide choice-of-law rules for product liability, infringement of the right of personality via the internet and liability arising from an infringement of intellectual property rights, which marks that Chinese conflicts law has entered into a new developmental stage and taken on several new trends: (1) Chinese conflicts law system for torts has been basically set up; (2) Chinese choice-of-law rules for torts are becoming more and more diversified; (3) the principle of party autonomy has been fully introduced to tort liability; and (4) judicial interpretations issued or to be issued by the Supreme People’s Court will still play an important role in judicial practice.
China’s latest Marriage Law amendment illustrates how tradition contributes to China’s modernity. Traditionally, a house was a necessity for a marriage in China. This is because in ancient China, marriage secured the continuation of the family line and provision for ancestors. In modern China, the one child policy and soaring housing prices collectively force the “three families” to buy a house for the new couple. However, what happens when the couple divorces? Shall the house then be considered community property? The 2011 Judicial Interpretation of the Supreme People’s Court of Several Issues on the Application of the Marriage Law of the People’s Republic of China, provides that where real estate is purchased by the parents of one party, and after the party’s marriage is registered under the party’s name, such real estate shall be deemed as a gift given by the parents to the party and the party’s personal property. This interpretation represents a compromise between tradition and modernity. The article will firstly introduce the marriage system in ancient China, illustrating that under the doctrine of li, the real purpose of marriage was to be a bond of love between two (families of different) surnames. Retrospectively, this secured observance of ancestral rituals in the ancestral temple, and prospectively, continuation of the family line. The house was a necessity for marriage because one of the six ceremonies required for marriage under li was the procession, and then welcome of the bride at the groom’s home. (Other ceremonies involved a matchmaker securing a proposal, matching auspicious birthdates, exchanging gifts between the bride’s and groom’s families, setting an auspicious wedding date, honoring ancestors and deities, and having an elaborate banquet). The article will then analyze the marriage law in the of Republic of China, in which even the post-dynasty marriage law adopted the western marriage system, the strong resistance of the old tradition forced the law-maker and the court to blend into the marriage law some traditional elements, making it a hybrid of tradition and modernity. The article also pointed out that the Marriage Law of People’s Republic of China wiped out textually almost all the traditional influence. However, the generally accepted rule which considered post-marriage assets as community property, led to intergenerational social, economic, and legal issues that could not reconcile tradition with China’s rapid urbanization. This urbanization has been compounded by the one-child policy and rising divorce rates. The article will then explain how due to the tradition of the bride’s welcome at the groom’s home, even today people are unwilling to have a “naked marriage” (getting married with no house, no car and no thick wad of banknotes). The latest judicial interpretation of the marriage law pragmatically responded to the phenomenon in the new era with a strong tradition embedded in it. In sum, judicial interpretation indicates that in a country with a long history such as China, traditional legal culture is a necessary lens to examine contemporary social changes.
What is the nature of freedom of speech? The First Amendment to the U.S. Constitution is often taken as an important example of free speech protection. However, the premise underlying the First Amendment is that freedom of speech is positive rather than negative. Yet such a conclusion is far from being proved. The original academic model of freedom of speech is usually understood as the model of “minimal government.” According to this paradigm, harmful speech should not be constrained but rather contested in the “free marketplace.” Allowing “more and better speech” to challenge the harmful speech seems to be the best reconciliation. But “more and better speech” could fail in some occasions as well as the marketplace theory. Does the enforcement of legal protection in such area or the interference of the government always end up in over expanding and abuse of power? As a matter of fact, China is now facing the same challenge as the Western society. How should we reconcile the legal protection of sinking voices, the limitation of against harmful speech and the governmental power of censorship? Through discussing the several cases in China, we try to examine the consequence of both the old and new media techniques and internet that challenge not only the authority of the traditional power but also endanger the rights of individuals.
A special system of constitutional review, namely National People’s Congress Review Model (the NPC Review Model) has been established since the 1982 Constitution. However, this system was criticized for its inactivity and has never been actually activated. After 2000, there are lots of efforts try to improve the system of constitutional review of China, the results of the Qi Yuling case (2001) and the Luoyang seed case (2003) demonstrated that the U.S.-style of constitutional review is not and will not be accepted by the political system of China, while the results of the Sun Zhigang case (2003) and the Tang Fuzhen case (2009) proved that the existing NPC Review model cannot work very well if political leaders refuse to reform it. However, the experiences of the New Model of Parliamentary Sovereignty which was developed from Canada, New Zealand, the United Kingdom, Canberra (the Australian Capital Territory), and the Hong Kong Special Administrative Region of China after 1980s, showed that a third way to protect human rights in a liberal democracy and to coordinate the relationship between legislature and court in a system of constitutional review. I believe the third way provides a good case for China to reform the existing constitutional review system without abandon its cherished tradition of the system of people’s congress.
Since the concept of franchising was introduced into China, the franchising sector has witnessed a spectacular growth in the last decade. China today is the most franchised country in the world in term of number of systems. The value and success of most franchising concepts are often substantially based on intellectual property — primarily trademarks, trade names, copyrights, trade secrets, and patents. If a franchisor is to capitalize on the exclusivity of its unique intellectual property to provide it and its franchisees a competitive advantage, legal protection of these valuable assets is essential in China and contemplated business. The tremendous development of franchising has inevitably brought forth different kinds of problems such as the franchise contract disputes, intellectual property infringement disputes, etc. The strong growth of domestic and international franchising urges the great importance of protecting the intellectual property rights (IPRs) in China today. This paper addresses the Chinese franchising law and intellectual property law, analyzing the enforcement and protection of intellectual property law in China today in combination of some judicial cases judged by the courts. With more and more serious situation of intellectual property infringements in China it is crucial for the intellectual property rights to be maintained and safeguarded, some suggestions were put forward to protect the IPRs from the franchisors’ perspective.
China’s legal education had been experiencing a rather tough way of growing up after founding of PRC and did has achieved some achievements in the early days, but the following destruction period of nearly 20 years almost ruined all of them. Since the reform and opening up, China’s legal education had been rapidly recovering and developing, there had been an unprecedented thriving scene. After constantly summing up experience, reforming and adjustment, China’s legal education gradually stepped into independent and scientific development mode. But with the same time, behind the prosperity scene, China’s legal education is problematic both in quantity and in quality. In quantity, the biggest problem of china’s legal education is its imbalanced development, lies both in regional distribution and in their charging authorities. In quality, there are four serious problems which affect its healthy development: lack of professional education idea; lack of elite education idea; lack of legal ethics education and lack of professional skill education. In the future, China’s legal education should put more efforts on resolving these problems, that is to say, more efforts should be put on the quantitative balance. Meanwhile, concerning its quality, measures will have to be taken for bringing it back to the essential attributes of legal education, only by so doing can China’s legal education be incorporated into the mainstream of global legal education culture.