Schedule of Classes
261.8 sec. 1 - Contemporary Chinese Legal Institutions (Spring 2010)
Instructor: Stanley Lubman (view instructor's teaching evaluations | profile)
Instructor: Anthony Zaloom (view instructor's profile)
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Units: 3
Meeting Time: TuTh 1:55-3:10
Meeting Location: 12
Course Control Number (Non-1Ls): 49801
Main Section Enrollment:
Enrolled: 8
Waitlisted: 0
Enroll Limit: 15
As of: 11/26 06:43 AM
The materials to be used in the course,will be posted on bSpace (aside from some important laws and regulations) and will be used in conjunction with the paperbound edition of Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford University Press 1999).
This survey of the legal institutions of the People’s Republic of China is divided into six parts.
Part 1 presents philosophical conceptions of social conflict and its management that dominated Chinese society from the second century BC until the beginning of the twentieth century, as well as elements of Chinese state and society that are relevant to the study of law. Notably, some institutions that were not formally related to law performed functions similar to those carried out by legal institutions in the West.
After this introduction we consider the impact of the West on China in the 19th and 20th centuries, and then, before looking at the modern period, we pause against this background to consider some useful perspectives on the study of Chinese law.
Part 2 surveys legal institutions and the policies of the Chinese Communist Party (“CCP”) toward law before the current period of reform that began in 1978. The imprint of pre-reform ideology and institutions on current practice continues to be powerful. This unit of the course first considers CCP experience and practice as they developed in areas that the Party ruled before it gained power over the entire nation in 1949, and then describes legal institutions under Maoism.
Part 3 introduces the economic reforms that have driven subsequent legal reforms for three decades, and provides an overview of the evolution of legal institutions and current issues in legal reform.
Part 4 looks closely at key institutions that make and interpret laws and rules with the force of law - legislatures, the courts and the bureaucracy. It also examines dispute resolution, both in extra-judicial institutions and in the courts, and the Chinese legal profession.
Part 5, the largest unit of the course, surveys a number of critical areas of the law: First, we look at the rules and institutions of administrative law that have been slowly developing in recent years in response to the need to control arbitrary actions by the Chinese bureaucracy. Then we turn to criminal law and criminal procedure in the light of recent reforms. A cluster of topics that follow introduces legal institutions that have been developed for the post-reform economy: contracts, property and business organizations.
Part 6 addresses the impact on Chinese legal institutions of certain external influence. First we analyze the effect of China’s accession to the WTO with regard to the standards of transparency and judicial review that membership in the World Trade Organization obligates all WTO members to maintain, and to which China agreed when it joined. We will consider China’s compliance. Western and Chinese views of human rights will be considered in this context. We will then close with speculation on the future course of China’s legal development, including the influence of foreign assistance.
Throughout the course we will attempt to analyze the influence on the form of legal institutions and their practice that are simultaneously at work to shape what we call legal culture”the beliefs and attitudes of both officials and the Chinese populace toward law”its sources, nature, legitimacy and purposes. The factors include:
Concepts of law inherited from pre-Communist China;
China’s official ideology;
The superiority of the legislature over the courts as the source of law;
The organization and administration of the courts like administrative agencies;
The breadth of discretion exercised by administrative agencies implementing legal norms;
The low emphasis on procedural justice;
Emphasis on mediated rather than adjudicated dispositions of disputes; and
The impact of current political policies.
Exam Notes: TH
Special Notes: LE(15)
Course Category: International and Comparative Law
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