Chinese Law: Towards an Understanding of Chinese Law, Its Nature and Developments

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Jianfu Chen
Martinus Nijhoff Publishers, 1999年7月14日 - 414 頁
Law, in particular its actual functioning in any given society, is above all a part of the culture of that society - a part of its historical, political, social and intellectual creation. If a black-letter' approach towards law in the West is under increasing criticism, it is particularly unhelpful, if not misleading, in understanding Chinese law, its nature and developments. Rather, to understand Chinese law, its nature and developments, we need to examine the Chinese legal traditions, the prevailing political and economic situations, Party policies on economic reform and tolerance towards political liberalisation, and scholarly discussions and debate. This is the approach of this book. Its aim is to put Chinese law in context', to outline the nature and present status of its development, and to analyse the meaning of the law within the Chinese context. However, this monograph does not ignore the practical needs for determining the precise contents of the black- letter' law either.
A study of this kind necessarily involves a process of topic selection. However, to avoid over-generalisation and over-simplification, it also demands a considerable degree of comprehensiveness in coverage. For this reason, the book covers what the Chinese scholars term fundamental law' and basic branches' of law, while other topics are covered because they are either crucial for the understanding of the law (such as legal traditions in China) or of practical importance (such as foreign investment and trade).
Chapter One provides an historical background to traditional Chinese legal culture' and modern law reforms. The historical background of specific topics is examined as the topics are analysed inthe following chapters. Chapter Two deals with the changing fate of law under Communist rule. Its focus is on the underlying factors and justifications for such changes. Chapter Three introduces discussions on specific branches of law, from public law (constitutional law, law-making, administrative law, criminal law, criminal procedure law) to private' law (civil law, family law, contracts, law on business entities, and law on foreign investment and trade). Each of these is dealt with in a separate chapter. After the analysis of these substantial topics, certain conclusions are drawn, which attempt to define the nature of Chinese law and its developments in present-day China.

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The Continuing Reform under the KMT The Modernisation
23
Concluding Remarks
29
Legal Experience under Maos Leadership
36
Concluding Remarks
55
4
65
Concluding Remarks
95
Sources of Law and LawMaking
97
A Changing Constitutional Framework on LawMaking
98
Concluding Remarks
196
Criminal Procedure Law
197
An Overview of the Major Deficiencies of the CPL
198
Major Changes in the 1996 Revision
200
Other Revisions
216
Concluding Remarks
217
Civil Law
219
Legal Framework Governing Civil and Commercial Matters
222

Sources and Hierarchy of Law and LawMaking
100
36
103
Legal Interpretation
106
64
109
Processes of LawMaking
110
Ambiguities and Conflicts
115
Towards a Uniform Law on LawMaking
119
Concluding Remarks
123
Administrative Law
127
Historical Developments of Administrative Law in China
129
Conceptions of Administrative Law in Contemporary China
133
Administrative Decision Making and Reconsideration
139
Administrative Supervision
152
Administrative Litigation
155
Administrative Liability
163
Concluding Remarks
165
Criminal Law
167
The 1979 Criminal Law and Its Development
168
General Principles
171
Crime and Punishment
183
Civil and Commercial Law Institutions
224
Concluding Remarks
246
Family Law
249
An Overview of the Traditional Family and Society
250
Historical Development of Family Law in Modern China
252
The Contemporary Legal Framework on Family Matters
256
Law as an Instrument for Social Change
262
Towards Reform
273
Concluding Remarks
274
Towards a Uniform Code of Contracts
282
Business Entities in Transition
288
Company Law
300
Partnership Law
313
Rapid Development of Special Investment Zones or Areas
320
Major Issues Concerning Doing Business inwith China
341
Problems and Challenges Ahead
352
Utilitarianism towards Foreign Law and Chinese Characteristics
358
Bibliography
365
Index
403
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