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China Law Evolving

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China’s globalization is influencing its laws and its law enforcement. What this means for foreign companies doing business in China (and hence the title of this series) is that China’s laws and law enforcement are evolving.

Today’s post involves an interesting article in the China Daily on how China’s judges and prosecutors are studying law overseas and how that will impact China’s own legal system.

This article is surprisingly blunt about where China’s laws are today, where those laws need to go, and how American legal study will assist China in moving its laws forward:

As China’s economy continues to grow and globalize, the legal community has come to realize that the country’s body of laws needs updating and globalizing, as well.  In some situations, China didn’t have a law; in others, it wasn’t current.

The article goes on to quote a Shenyang prosecutor, Shen Xiaojie, who secured his LLM from Temple University:

“A scholar once said that in the legal field, globalization is Americanization to a large extent, so we have to learn from the United States,” Shen said, referring to both knowledge and the way of thinking.

For example, courts in some regions in China began to experiment with plea bargaining between the prosecutor and criminal defendant a procedure learnt from the Anglo-American legal system, Shen said.  “Learning from overseas will help China grow stronger.”

The article also quotes a “civil and commercial judge from the Supreme People’s Court” who also studied at Temple on how “China’s civil and commercial law system and practices gained much from the US in the field of Securities Law, Corporation Law and Trust Law.” According to this judge, China had no trust law, “so China’s legislation governing the issue was adapted from Anglo-American countries, mainly Britain and the United States.”

Wang Chenguang, dean of Tsinghua University Law School, talked of how sending judges and prosecutors to the United States is important for China, but does not mean China will entirely abandon its own legal culture:

“We must train professionals so that they know both China’s law and foreign systems,” Wang said. But that doesn’t mean that China needs to imitate the Western legal system, Wang said. “Although it needs to be reformed, China’s judicial system basically suits the country’s condition,” he said.

Wang stressed that as China’s society is quite different from that of Western countries, the Chinese judicial system cannot be expected to match theirs. For example, some Chinese judges have adopted mediation more than their foreign counterparts, instead of merely making judgments. Even so, Wang stressed the necessity for Sino-foreign co-operation.

The influence of globalization goes far beyond the economic field,” Wang said, noting that, for example, co-operation between China and other countries on extraditing Chinese fugitive officials charged with corruption is strengthening. “We learnt the principles of presumption of innocence in the criminal code and human rights guarantees in the Constitution from successful experiences overseas,” he said.

I have had countless conversations along these same lines with the Chinese lawyers with whom our own China lawyers work in China and their views on this are eerily similar to those expressed by the Chinese attorneys in this article. Though the China lawyers with whom we work and the China lawyers in this article are, almost by definition, going to be the most globalized of China’s attorneys, they are also likely to be very influential.

China’s legal system is evolving and as it does so, we can expect it to become more like those in the West. Not in all ways, of course, and not quickly either, but its evolution has already begun and it is going to continue.

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