Upon the enactment of Chinese Civil Code, the previous rules that allowed for enlarged state power to annul contracts such as General Principles of Civil Law article 58 §3 and Contract Law article 52 §1-§2 were dropped. Chinese law has gone one step further in promoting freedom of contract. The validity rules now have been streamlined and the previous contradictory and inconsistent treatment between civil juristic acts and contracts, state and private parties eliminated. However, the new legislative technique will unavoidably facilitate asset stripping, the very reason that the paternalistic rules were in place. Through a historical, doctrinal and logical lens, we will show why there can be no effective model of a neutral set of validity rules that could deal with state-owned enterprises in a less than free and competitive market. The only way to make it work is to have SOEs exit most of the competitive industries and focus on areas that serve the policy goals. Also, paternalistic rules concerning the validity of a contract in trading state-assets should be enacted either in the Civil Code or through special legislations and applicable to government, state-owned enterprises and private parties alike.
{"title":"The New Validity Rules in Chinese Civil Code and Chinese State-owned Enterprises’ Freedom in Contracting: One Step Too Far","authors":"Hao Jiang, Antonia von Appen","doi":"10.1093/cjcl/cxac024","DOIUrl":"https://doi.org/10.1093/cjcl/cxac024","url":null,"abstract":"\u0000 Upon the enactment of Chinese Civil Code, the previous rules that allowed for enlarged state power to annul contracts such as General Principles of Civil Law article 58 §3 and Contract Law article 52 §1-§2 were dropped. Chinese law has gone one step further in promoting freedom of contract. The validity rules now have been streamlined and the previous contradictory and inconsistent treatment between civil juristic acts and contracts, state and private parties eliminated. However, the new legislative technique will unavoidably facilitate asset stripping, the very reason that the paternalistic rules were in place. Through a historical, doctrinal and logical lens, we will show why there can be no effective model of a neutral set of validity rules that could deal with state-owned enterprises in a less than free and competitive market. The only way to make it work is to have SOEs exit most of the competitive industries and focus on areas that serve the policy goals. Also, paternalistic rules concerning the validity of a contract in trading state-assets should be enacted either in the Civil Code or through special legislations and applicable to government, state-owned enterprises and private parties alike.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45516112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Centre for Chinese and Comparative Law and Asian Business Law Institute jointly organised an academic roundtable entitled ‘Insolvency Law and Policy in Times of COVID-19 and Beyond’ on 29 March 2022. The event brought together judges, scholars, experts and professionals from world-leading universities and institutions. This note sets out a summary of the proceedings held at the academic roundtable.
{"title":"Insolvency Law and Policy in Times of COVID-19 and Beyond: Academic Roundtable Proceedings","authors":"W. Wan, Xin Yan","doi":"10.1093/cjcl/cxac025","DOIUrl":"https://doi.org/10.1093/cjcl/cxac025","url":null,"abstract":"\u0000 The Centre for Chinese and Comparative Law and Asian Business Law Institute jointly organised an academic roundtable entitled ‘Insolvency Law and Policy in Times of COVID-19 and Beyond’ on 29 March 2022. The event brought together judges, scholars, experts and professionals from world-leading universities and institutions. This note sets out a summary of the proceedings held at the academic roundtable.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43644505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Existing analytical accounts of China’s interactions with international law are underdeveloped. This article proposes the use of an interactional model to explain the normativity of international law from three perspectives: shared understandings, normative qualities of international law, and the reception of individual countries to these normative qualities. Furthermore, the interactional model is used to explain how conceptions of the normativity of international climate change law are developed in China. It finds that China has accepted the common responsibility system under an enhanced transparency framework, while adhering to the facilitative nature of international commitments to accommodate the needs of developing countries and stringently insisting on obligations of support from developed countries being met. In this, China’s position on the normative qualities of international climate change law is influenced by its international identities, power status, national interests, and domestic understandings of anthropogenic climate change. The interactional account that follows implies that future research on China’s interactions with international law should be cautious of both Western centrism and Chinese exceptionalism and consider both the legitimacy of international law and China’s own domestic context.
{"title":"China’s Stance on the Normativity of International Climate Change Law: An Interactional Account","authors":"Feiyue Li","doi":"10.1093/cjcl/cxac023","DOIUrl":"https://doi.org/10.1093/cjcl/cxac023","url":null,"abstract":"\u0000 Existing analytical accounts of China’s interactions with international law are underdeveloped. This article proposes the use of an interactional model to explain the normativity of international law from three perspectives: shared understandings, normative qualities of international law, and the reception of individual countries to these normative qualities. Furthermore, the interactional model is used to explain how conceptions of the normativity of international climate change law are developed in China. It finds that China has accepted the common responsibility system under an enhanced transparency framework, while adhering to the facilitative nature of international commitments to accommodate the needs of developing countries and stringently insisting on obligations of support from developed countries being met. In this, China’s position on the normative qualities of international climate change law is influenced by its international identities, power status, national interests, and domestic understandings of anthropogenic climate change. The interactional account that follows implies that future research on China’s interactions with international law should be cautious of both Western centrism and Chinese exceptionalism and consider both the legitimacy of international law and China’s own domestic context.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2022-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41881296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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