Porcelli Chinese Law Overview

Porcelli Chinese Law

• Article 464 defines a contract as an agreement between parties to establish, modify, or terminate civil legal relations. Personal relations like marriage or guardianship follow their own laws.
• Law and anthropology: Societies without written language still maintain effective social rules, despite not explicitly formulating them. Culture, social considerations, and language influence the understanding and implementation of rules. Legal norms interact with societal realities.
• Legal culture considers legal norms in relation to material and immaterial aspects of society.
• Societies with written language create and enforce social rules effectively, despite lacking explicit linguistic formulation of those rules.
• The close interaction exists between concepts of the world and the system of signifiers.
• Legal rules result not just from facts themselves but also from cultural, social, and linguistic factors.
• The interpretation and implementation of rules can vary.

Contract Handling

• A choice of law clause may refer to a legal system whose language differs from the contract's wording.
• An arbitration clause may allow the arbitrator to be from another country. The same words may have different meanings for different arbitrators.
• Various considerations are needed, in handling a contract, to reconcile differences in languages and cultures.
• Using a shared system of directories and files is vital in cross-cultural interactions.

Formal Expressions

• Formal expressions allow knowledge to be preserved long-term and contribute to universal communication.
• Formal expressions increase the potential for knowledge accumulation and improvement, however they cannot eliminate the complexities of context.
• Formal systems have limitations, including inherent ambiguity.

Formal Expression Principles

• Formalization is limited by context.
• Defining terms requires infinite regress. Primitive terms (not defined) are required.
• Legal systems maintain ambiguity.

Smith - Formal Law

• Formal law can be exploited by those who seek to circumvent its purpose.
• Formalization can vary among different parts of a legal system.

Smith - Safety Valves

• Distinctions like equity can be considered safety valves against formal law's exploitation.

Cultures and Legal Systems

• Cultures based on grammars utilize handbooks as the primary form of transmitting rules.
• Cultures based on texts use the book as the primary form.
• Romans (grammar-oriented) and common-law (text-based) cultures, for example, differ in these methods.

Ancient Chinese Law

• Early Chinese law lacked distinctions between private and public law elements.
• Chinese law primarily used 'Fa' (law) and 'Li' (ritual), emphasizing order and moral conduct.
• Chinese law emphasized legal principles rather than codes; it was relational.
• Distinction within criminal codes existed between a general code and rules that would be adapted to the occasion.

Law of the Codes

• Principles were used as ‘a repertoire of texts.’
• The code’s structure and format were systematic: rules grouped sequentially by issue.
• The Tang dynasty civil code served as a model for later codes.

Modernization and Influence

• A key aspect of China's modernization was the adoption of foreign legal systems.
• A significant aspect of the Chinese legal system evolved as a mix.
• Legal systems from western nations influenced China's legal modernization.

International Law

• The lack of a central legislative body makes it difficult to establish international law.
• International law is rooted in state consent through treaties.
• Courts and tribunals play a less prominent role in international law, compared with national legal systems, owing to the lack of compulsory jurisdiction

Foreign Investment

• China's catalogue of foreign investment structure comprises encouraged investments, restricted investments, forbidden investments, and allowed investments.
• Some foreign investments are subject to higher approval requirements or specific conditions.
• Provisions govern taxation, accounting, and foreign exchange within China regarding foreign investments.

This quiz explores the foundations of Chinese law as defined by Article 464, focusing on the relationship between contracts and civil legal relations. It delves into the influence of culture, language, and society on legal norms and how these factors shape the understanding and implementation of laws. The interaction between legal rules and societal realities is also highlighted.