Porcelli Chinese Law PDF

PORCELLI CHINESE LAW Lesson 1. 29-11-24 Synecdoche. Article 464: a contract refers to an agreement between the parties to civil legal relations for the establishment, modification and termination of civil legal relations. Agreements concerning personal relations such as marriage, adoption, and gu...

PORCELLI CHINESE LAW Lesson 1. 29-11-24 Synecdoche. Article 464: a contract refers to an agreement between the parties to civil legal relations for the establishment, modification and termination of civil legal relations. Agreements concerning personal relations such as marriage, adoption, and guardship shall be governed by the provisions of laws on the relevant personal relations; or absent such provisions, this book may apply mutatis mutandis according to their nature. >>> art. 464 (chinese civil code) – art. 1321 (italian civil code) Are all the agreements contracts? LAW AND ANTHROPOLOGY – 人类学 Societies without a written language still manage to make their social rules effective A given rule and distribution of power may be imposed coercively upon members of a group without any linguistic formulation. - Even without a written language societies still manage to make their social rules effective: human groups regularly abide by certain rules of behavior which they do not expressly formulate in advance. - identical facts do not always produce identical legal rules the results are affected by other elements like culture, social considerations, language. - distinction between a rule and the way it is understood and implemented, there may be broad deviations. Legal culture - ‘Rules’ - Language - Rigaux: There is, however, a close interaction between the concept of the world and the system of signifiers that name the semantic units of a given community. - Legal culture: concept that connects legal norms to the material and immaterial reality of society. However “Legal culture” and “language” are two interdependent dimensions that a study international legal discourse cannot overlook Mamede: What must be clearly understood is that language does not have as referent (‘it does not refer to’) the object of physical and external reality (that, has been shown, is inaccessible, in its essence, by the human being, from which only phenomena can be grasped); on the contrary, its referent is the object as placed in conscience, the concept of the object, shaped, in the end, by culture» … let alone when we deal with immaterial notions like those we usually deal with in the legal field (contract, obligation etc.) Mamede: “Reality” is the reality conceived by our culture. Initially, we inherit it. However, upon reelaborating it according to the needs of our survival instinct and our desires for the future, we build our own conception of the world. Even if within a certain language we can expect to find a more homogeneous cultural background, it can anyways happen that the same language itself can actually combine more than one legal language For instance: - France-Quebec-Switzerland etc. - Germany-Austria- Switzerland etc. - Italy-Switzerland etc… HOW TO HANDLE CONTRACTS? Sacco already in 1991 was warning that: Sometimes a choice of law clause refers to a legal system with a language that does not correspond to the one in which the contract is written. Or an arbitration clause may permit an arbitrator to be chosen from a third country, and the same word may therefore have three different meanings for three arbitrators. We need to apply these ideas to the law: - Clavier: although disagreement is always possible with my interlocutor, we speak of the same world, and it is from this world that we speak to each other, even though we do not necessarily say the same thing - Eco: Without the assumption that the two interlocutors must in some way share a system, no matter how asystematic, of directories and files, interaction is not possible. … and therefore we have to consider that, on the one hand there should be a should be a “shared system”, on the other hand there should be room for accommodating the cultural differences… In order tackle this issue we need to look at some elements that arose a fairly long time ago within a certain ‘legal tradition’ … … by starting asking ourselves: what is the law? And what are its main features? WHAT IS LAW? Ulpianus libro primo institutionum pr. Iuri operam daturum prius nosse oportet, unde nomen iuris descendat. est autem a iustitia appellatum: nam, ut eleganter Celsus definit, ius est ars boni et aequi. Ius – Iustitia Ius = «ars» Bonum, and not optimum Aequitas, and not aequalitas D. 1,2,41 (Pomponius libro singulari enchiridii), Socrates (?), Plato, Aristotles Generatim = employment of the διαίρεσις: a taxonomy of concepts, ordered according to a general–specific relation (ius est ars boni et aequi)  Syllogism: a form of reasoning in which a conclusion is drawn from given or assumed propositions (premises) Heylighen Advantages of formal expressions: - formal expressions allow knowledge to be stored in the long term - capacity for universal communication - testability of formalised knowledge Combination of the previous advantages leads to what is perhaps the most important benefit of all: formal expression makes it easier to accumulate and improve knowledge. Nonetheless it can be shown that complete formalization is impossible in principle. The reason for these restrictions is that the context cannot be eliminated: - The infinite regress of definitions: the general problem is that you can only define expressions by means of other expressions which need to be defined themselves - Gallo: in Kelsen’s Pure theory of law a norm is the foundation of the validity of another norm. - Primitive terms refer to the context: to evade such an infinite regress is to stop with some terms that are considered primitive, in the sense that their meaning is assumed to be given – Gallo: Kelsen’s grundnorm is assumed – it is not possible to be demonstrated you have to accept it as a matter of faith!) - Intrinsic limitation of the formal systems connected to the fact that formal systems retain a basic ambiguity. Heylighen Gödel theorem states that in any formalism that encompasses numbers, there are expressions of which the truth or falsity cannot be proven within the formalism itself. Heisenberg Uncertainty Principle: the observer perturbs the observed system (observer effect) – possible to be seen either the position or momentum. Stoeva on Heisenberg Uncertainty Principle in Law: when applied to law, Heisenberg’s uncertainty principle of unavoidable indeterminacy would hold that: - An increase in a rule’s precision at a definite time, decreases its accuracy in an indefinite future case, and vice versa. In 1794 Prussia enacted the “Preussisches Allgemeines Landrecht” that had more than 19.000 articles – however it did not solve the problem that all possible cases could have been solved on the basis of the legal text itself. Smith The simple structures of the law are open to exploitation by opportunists. Formal law provides information about where the line exactly is, and evaders can use this information to take unforeseen advantage of the gap between the law’s purpose and its literal terms. - Formalism comes in degrees, and different parts of the law can be pushed further towards the formal end of the spectrum than others. - We can also hypothesize that parts of the law can be as formal as they are because they are backed up with a safety valve of anti-evasion intervention. The safety valve can be for instance: - Something like the dinstinction between law and equity was theorised by Aristotles: Νόμος / ἐπιείκεια – then employed by the Anglo-American law through the ‘intermediation’ of the Chancellor (bishop) who probably was inspired by its version reproduced in Thomas Aquinas (Gordley) - Something like the ‘general principles’such as the bona fides, the objective good faith - the 诚实信 用原则 (chengshi xinyong yuanze) considered by the Chinese jurists as the 帝王条款 (diwang tiaokuan) Lotman - Eco: Cultures can be governed by a system of rules or by a repertoire of texts imposing models of behaviour. In the former category, texts are generated by combinations of discrete units and are judged correct or incorrect according to their conformity to the combinational rules. [Those are therefore leveraging on the formal systems we were discussing above]. In the latter category, society directly generates texts, which constitute macrounits from which rules can eventually be inferred, but which initially and most importantly propose models to be followed and imitated. A grammar-oriented culture depends on 'Handbooks', while a text-oriented culture depends on The Book’. A handbook is a code which permits further messages and texts, whereas a book is a text, generated by an as-yet-unknown rule which, once analyzed and reduced to a handbook-like form, can suggest new ways of producing further texts Roman Law (i.e. what we have been discussing so far) is an example of grammar-oriented culture, the so-called Common Law is an example of a text-oriented culture. Peter Stein: Bracton got his Roman law from the Glossators […] Bracton found a legal grammar with which he was able to build up a picture of English law in substantive rather than procedural terms The legal grammar has been the ground that has been used by China to build its ‘new’ legal system by combining ‘scientific’ notions and legal schemes with elements descending from its legal culture In the next classes we will look at the Chinese ancient legal tradition and then at how this legal grammar has been metabolized in the light of the Chinese legal culture: this is extremely important to understand the nowadays Chinese law as well as to identify a methodology to deal with law in a ‘global’ perspective (I use it at the China University of Political Science and Law to teach a course on Fundamentals of Transnational Contracts and International Arbitration). Lesson 2. 05-12-24 The ancient Chinese law The ancient Chinese law was based on a Zhufa Heti model, in our 'western' law we started having divisions within the law (private, public, labor...), but in Chinese law there was no distinction, as the perspective was different. "Fa" is the one we can rely on more a firm way, thinking about law in an objecting prospective, referring to THE Law, used to also represent the statuses. A reform put in place by Mao that simplified characters. We have to consider more the original character, it has three elements, one is water, the other is a unicorn and the last one is the verb 'to go'. The unicorn is not the typical image, but rather a mountain cow with a horn. We still read from this etymological dictionary what is the definition and explanation of the character. "Law, the sanctions" the idea which is the dynamic idea of the flat surface (like water), if anything comes out of the water it's the rhino that tries to calm down the flat water. Perception of the objective law and the sanctions (in the modern Chinese is the ‘criminal law’). Idea of equity, substantial equality is what the unicorn does. In this prospective of the unicorn, we can think that the society would be in a calm condition, a crime happens and the law solves the issue. If there is any crime the unicorn is putting society into its original form (flat) (se non si capisce> la società è come l’acqua calma, il crimine fatto è il problema che destabilizza tutto e la legge ha il compito di rimettere tutto in ordine). In order to refer to the subjective law we combine "Fa" and "Lü"(idea of the order). He Qinhua explains that the first usages of these terms came from the military laws. The character is made by 'people' and 'hands' so something in the hands of the people. The scholars said that the character (Lü) had its origins in the music that was given to the army that were moving, giving a sense of order. Another element is that given the fact that in the ancient china, there was no difference between the civil police and military in crime fields. As a matter of fact both parts could have a say in the crime and study it. (Commentary note) Each one of the characters have a peculiarity. "Fa" is the closest to our concept of law, although having the concept of the sanction. The idea of the codes divided into articles was called "Lü". The ancient Chinese law was a written law, it was NOT completely written, because even if in the system there were no distinctions between private and public law, the approach was still based on the law, the ‘fa’ and the ‘Li’. In brief words, the written one had just the public law, in which there was the criminal law. As we can see these written rules that are mentioned, were basically rules that were made public in order to give limitation to the social classes that had the power to impose a law. Rules written on bronze, enough rules limiting the aristocracy. This period is characterized by a dispute between two schools. One of them being the Confucian school who was mainly of the idea that it was not necessary to have written laws, but morality should be considered more into society. It mainly relied in the "li". The second school was the legist school, was highly relying on harsh punishments and written laws. Although the two schools were disputing, overtime they interacted many times. At the end happened that the confucian theory served as a base for written rules in a legist prospective. "Fajing", "qin code"(legist school), "Han code" (confucian school). These two were dynasties, the first one didn't last much, but the most important is the "Tanglü shuyi", the tang dynasty code served as a model for all the codes afterwards. They drafted 6 codes in which 5 for administration and one for crimes. Zhang Jinfan studied the codes and they had these elements: strict structure and summarizes the ancient legislation, articles and comments are integrated in a systematic way. 12 books arranged in a logical order with a book on the general part and the otherwise devoted to specific crimes. The following dynasties used these features as a basis to structure their own. (Influential on the Japanese law). The last dynasty "Daqing Luli". This code was influential even in other countries, the Japanese system was based on the tang code, it worked because there was a ‘common’ language and that the structure was working well. Related to the prospective to the international law, was basically outlined in the 16th century ca. The roman prospective was different (Ius Gentium) and china as well. China is the kingdom and the relations were based on circles, from china towards the outside. The first time that china used the modern international law happened when 'nercinsk treaty' took place, the official language was Latin. (1689). (China, through the Silk Road and foreign trades, started a path towards international law). The private law was regulated within the "Li", translates as ‘the rituals’, a customary law granted by the confucianist theory. The original had two main elements, the first one is referred to something ‘holy’, the second represents jades, from the combination we see that it is connected to rituals to supernatural beings or ancestors, thus ‘li’ is connected to worshipping rituals. In the Chinese history it was going from representing the ritual itself into a standard of behavior. Confucianism was relevant and used as a tool to regulate the relationships between people, therefore the society. Those who violated the rules, they will be punished for destroying the relationship in the society. ‘li’ was connected to the criteria based on the confucianist theories. (Among the criteria there were some that wanted a hierarchical relation between people, keeping the society in peace), among them there was a hierarchical connection between the various relations. (Father, son/ elder, younger siblings and so on). Private law was taking into account by the codes when it was related to elements that were connected to the crimes. (More about the Li on the ppt, pp 24-37) How do they interact with each other? If the Li was giving the main moral connotation, it was also serving as a foundation for rules created under the Fa. The ‘xing’ and ‘li’ (positive, xing and negative, li) interacted between them. There is the same mechanism, if the “Li” is connected to the main structure of the society, also when the legislator has established a certain positive rule in a court, was taking into account a positive “Li”. In order to understand the contract law, we have to search elements in the ‘li’ because the private law was found in that. The confucian theory could be used for interpretation and as base for the creation of other rules. As Zhang Jinfan explained, the ‘li’ was continuously legalized and the rules was continuously moralized. Lesson 3. 05-12-24 The “modernization” and the role of Japan In Japan, what happened? Christian missioners started approaching Japan and spreading the religion, they also spread a sense in the people of not wanting to be ruled by a military government, (the emperor was staying there formally, but the government was in the Shogun’s hands, being it a military government) as a result a rebellion started around the middle of 17th century. As a consequence, the government forbid to all the foreigners to not spread their culture (travel in Japan and sell books). So they left Japan, the tolerated one were the Dutch that stayed in Nagasaki bay, because they were just for trade. Overtime this relation prepared the ground of what could have happened century afterwards. If there were not Christian movements, after the prohibition in the 18th century, some western books started circulating in Japan. The language is the crucial part. These languages are different because they aren’t built with an alphabet. After this prohibition, in Japan they were starting translating the books coming from the western. On one hand they developed new ideas and new ‘alphabet’ (technical language and structure), we know that also the Rousseau social contract was also translated. When the Shogun went on a crisis, the government established a government office for the translation of Dutch books (1811) naming these translation ‘Rangaku’ or ‘studies on the Dutch’. Japan was already prepared to accept new ideas, in terms of domestic politics, the military government went into a crisis and the emperor wanted a reestablishment, that’s why they started a reform. The emperor, in order to promote politically this restoration, started the reform, something the government couldn’t do. Another thing is that they had objective elements to measure if these reforms succeeded or not. Later china underwent unequal treaties after the Opium war. The western powers were imposing an extraterritorial power on certain countries when the institutions of those countries were reliable. China became the weak part while, in Japan, unequal treaties were estipulated without wars, because from a military point of view Japan wasn’t advanced, therefore the country didn’t go through war and accepted these trades. (Western countries and also japan realized they were not advanced in commerce). Within the frame of restoration, the fact that the government could build new institutions that will overcome this unequal treaties was used by the Meiji, that put in place the government (they succeeded), but they needed to have a technical language. If at the beginning they were sending their student in the Netherlands, they sent those students across other countries. They started creating legal experts. (they had people that went abroad and study the languages and concepts). Foreigner experts were called to teach their models in universities, for instance. Roman law was taught by Grigsby as a way to understand roman law as a precursor of English law. The problem was connected to the language (Norio Makiya, scholar) as a matter of fact, the notions were lacking, for that they used a technical word to represent the notion, China also used these technical words, using a French-Japanese legal dictionary. In Japan they were in condition to write a code. Japan code was based on German and French codes (Aoki). In 1894 Britain and Japan signed the ‘Aoki-Kimberley Treaty’ ending the unequal extraterritorial treaty, the treaty would have been enforced until all Japanese codes were full operation (end of the XIX century). A project ‘Boissonade Project’( The Meiji government aimed to revise unequal treaties. The lack of a modern legal system made they rely on French law as a model, with MITSUKURI Rinsho initially translating French laws. However, he couldn’t complete the Civil Code, leading to the hiring of French experts Bousquet and Boissonade to assist. The Old Civil Code, influenced by the French Code Napoléon, was never enacted due to controversy. The later New Civil Code, while seen as influenced by the German Empire’s Civil Code, also had contributions from authors who studied in France) based on the Code Napoleon and on the Italian 1865 Civil Code. In1898 first civil code. Modernization finished in this century. Lesson 4. 06-12-24 The Qingmo and the beginning of China’s modernization Timeline, Chinese history. Main point is the Silk road. At some point, during the Han dynasty, China got in touch with Rome. In Roman senate it was forbidden to men to wear silk clothes, silk was only produced in China. And the trade in Eurasia was limited. Another focal point is the triumph of the communist party. In the inequality treaties, the disputes regarding foreigner countries, the judges wouldn’t have been local, but coming from the western. The law was enforced by the foreigners, it was creating a strong pressure on the Asian countries. China trade was limited, at the end of 18th century, the western couldn’t trade with China, but they could entertain trade with Chinese merchants, called Cohong, in Guanjon. Canton trade system consisted in the supervision of the trading relations by the Qing officials, allowing just licensed merchants could trade with the West. Foreigners weren’t in touch with the Qing officials, but just with the cohong. English people started liking tea, within few decades there was a sharp increase in tea production and selling. Based on a study, the tea exports increased from 92k pounds to 2.7mil to 3.6mil. meanwhile other foreigners tried to establish diplomatic relations with china, but they failed. (English decided to get opium from Bangladesh and sell it to China. The Qing government didn’t approve the use of this drug, so that’s how the opium wars started). After the opium wars there were unequal treaties. As a consequence it was formed an extraterritoriality treaty, but china didn’t care going through any reform. They just took in consideration few reforms like a language school ‘Tongwenguan’ within the ‘Zongli Yamen’ that was a sort of minister of foreign affairs. Another school of translation was established within the ‘Jiangan jiqi zhizao ju fanyiguan’. The purpose was learning languages in order to improve military capacities and they wanted to know more about the treaties and to find a way to get rid of them. Those who worked in the schools of translation were not lawyers. (China didn’t allow foreigners to teach and they didn’t send abroad Chinese students). First translated book was the elements of international law, by a missionary (missionaries or merchants were considered ‘yi’ or barbarians), not a lawyer. Only another work that was translated was the 6 French codes. Chinese people referred the 6 codes as the 6 fundamental rules to regulate society. (The constitution, the criminal code, the criminal procedure code, the civil code, the commercial code, the civil procedure code). There is a difference between the criminal code (definition of the crime) and the criminal procedure code (different procedures to regulate the trial of the crime) is also the difference between substantive law (definition and sanctions) and procedure law (the way the trial is regulated). Difference between the civil procedure (civil law you have both parties that are private, the public party is still considered private. Therefore the procedure is connected to the possibility to find out which party is right, but the procedure is unbalanced, you don’t have investigation. The equal parties should persuade the judge to choose who’s wrong and who’s right. When the parties do not perform the judgement there will be the enforcement. The latter is performed by a public judge) and the criminal procedure (criminal law is part of the public law, because in criminal law you have a public entity on behalf of the whole society which is prosecuting a crime, then you have the defender that is the author of the crime the moment the judge says so). Pillars of the organizations of the modern society are these laws. In some countries the Civil and commercial code are divided, but in China, Italy and more, the two codes aren’t separated. The difference between them was founded during the middle age in Europe. The Japanese and the Chinese didn’t provide different codes, because there is no such distinction. They did a translation of these 6 codes and laws, but they didn’t translate the constitution, because the emperor didn’t want the people to know that other countries had a limitation of powers. What was a difference with Japan? It was that, while in Japan they sent people abroad and study, these translation in China were not entrusted to legal experts, the translations have been entrusted by a French guy (Billequin), with his translator, but he was a chemical expert so the legal translations weren’t accurate. This interest for china stayed for a century. 1894 and 1895 there was a war between china and Japan, it was won by Japan. From that time on, we see that in the Chinese society it started growing a group of people that realizes that china had to go through modernization. Until that time. China was not having a strong interest in the modernization, but after the loss, people realized it was time to start a modernization. Liang Qichao was a high knowledge person (not a lawyer), and realized that the translations were wrong and deceptive. His mentor, Kang youwei was remarking that they should translate relevant things, connected to social science, before moving to the technical matters. He said that in order to improve the military force, it is needed to change the society. These two people opened their own house of translation , but Liang Qichao said that it was too late to start translating new words, so they translated from Japanese. From that day on they started in a more systematic way, sending students and receiving foreigners. They decided to translate political works and secondly technical ones. At a certain point there was a rebellion against the foreigners, but the military power was unbalanced so they were boxing (boxers’ rebellion because they just kept punching). Once they got a further unequal treaty, having the same terms that we could find the treaty with Japan. From 1902 ,if china would put in place reforms and elaborated accords with western countries, Britain will prepare to relinquishing the extra-territorial rights. From outside there was a strong pressure, but from the domestic point of view there was an even stronger pressure against the dynasty. -There was a constitution elaborated in 1907. -They started working on a draft of a modern criminal code. Also drafting the civil code. -It erupted a discussion between the school of “Li” and “fa”. -What happened in this stage of China gave the direction to what happened in the following centuries up to now. They established universities. -The first book of roman law, 1903. What’s interesting is that an historian mentioned about the students in the oldest university. They sent there law teachers, but they were teaching case law. What we know is that teaching was not useful for a lawyer career, because it was too much valued dependent. (In the common law, for a better of political reason, once England wanted to become independent from EU, there was imposed and the rules were mainly based on decisions taken on similar previous cases). In China there was a dispute between two schools, one wanted modernization through looking at foreigners (Fa, Fazhipai) and the other wanted to reorganize their customs (Li, Lijiao pai). In China they discussed on how to use a grammar base approach. The emperor, or the mother, entrusted Shen Jiaben (leader of the school of ‘fa’) for the reforms of these schools. The school of ‘Fa’ was more influential. With time the translations got way better. There were some technicians that were capable to handle the legal notions (the others weren’t used to such legal nouns, since they used to have the description of the original notion, not legal and technical notions). First Chinese civil code, completed three months before the revolution (Qing dynasty fell and republic took over). It is a project fairly similar to the Japanese one. It was drafted by two commissions scholars. One commission with the first three books (general part, obligations and real rights), another commission dealt with the last two (family law and inheritance). In the first commission there was a Japanese expert, in the second there were some scholars of the schools of the ‘Li’. The first commission had more technical matters, the latter had more local customs and culture, that’s why it was assigned to the ‘Li’. Due to the revolution, it didn’t work. 5 constitutions, after the rebellion. Until 1949 the republic has been founded. More stability was given later on by a leader. In 1921 in Shanghai the communist party was founded which got momentum all over society. It was not a national stability. There were areas that were not regulated by general law, but they had adopted a Soviet model. It happened a japanese invasion, the internal issues with the communism and the WW2 didn’t allow China to reach a common stability. Lesson 4. 10-12-24 (from slide 72) In the Civil code there are mainly found rules connected to the private law (relationship between private persons). There are social rules. There’re also rules that regulate the relationship between private parties between each other or public entities. This code has been drafted by two commissions. One part is more general where there are collected the most general rules (principles, rules of persons and so on), then there is a book on obligations. Obligation, “how do I protect a duty in the future?” (example. I raise lands and on March I have two lands, one is to exchange. Instead of having just two lands, I will have ten, but I will exchange some, with the ones left I can exchange it for something I will need in the future, like animals. But how do I know I will receive the animal in the future by the counterpart? There are two strategies, on is the Subjection and second is the duty. With the subjection I will give you the land and you’ll stay at my house until I get the animal I want (harsh way). The other way, the other person will have a duty that in October they will give me the animal I asked for. There will not be a subjection, but in October they have to give me the animal, if otherwise I will sue them in front of a judge, going through a trial, which we use, usually, in civil law in order for a certain legal relationship. If the judge verifies that I am right they will give the counterpart some days to perform their duty. If after the given time, I still not receive my animal then we will use a public enforcement). The scheme of obligation is useful because it allows to make economic dynamic (also the concept of duty, but also legal protection). It is one of the pillars of the private law in general (book number 2). Obligation (for Romans) was used also in a case of a tort, what is a tort? A lawful damage made to someone else. Thanks to the work of the jurist, what we achieve is that the biggest damages, those that were the worst, were handled within the criminal law. Those that were not so severe have been kept and instead of having a revenge for the tort, the person will have an economic compensation and a penalty. We put more general schemes in the obligation section, accumulating sources of legal duties for private law. In case of a tort, I received it, I prove to the judge that I received the tort, the latter decides the sorts, they will impose the other person into compensation (roman time). The obligation section has two main rules, the contract and the torts. However, based on the obligation I have regulated the labor contracts, (source of obligation), law. Another book is related to the rights of the things. The differences between the obligations and the rights of things, in the obligation I was using an action (instrument I use to claim the rights, Actium persona which is an action against someone. I cannot use the obligation against everyone, but just the parties involved). In the case of the ownership, can you claim rights on this ownership only against one person? No, it’s based on actions (claim, ownership) between one person and an object, whoever gets included in this relationship is just to kick the person away. You can have your claims based on two actions. In criminal law you have the public prosecutor and it is not a private matter. In private law, is not the judge it’s me that I go to the judge and tell him. To get what I want I have two tools. The tool itself is the action, but the latter is divided into two steps. One is looking at the relationship between two people or more. The other one is look at the relationship between people and their objects. One of the consequences is that the obligations are not possible to be claimed to everyone. Where do I have a stronger protection? In the case of ownership, because it’s the absolute valued of the real rights. What are the real rights we have? Other rights that go on top of the ownership, the latter is actually the last one. What matters is that I own an object and whoever stands in the way could be “accused” and sent away. The other two books are related to inheritance and family law. In these two books, the head of the drafting was the head of the school of Fa (scientific models), but in drafting it they took on board people coming from school of the Li (tradition models). They were creating legal structures, during the middle ages. While in the middle ages, after the nation state came into existence, the nation state stated taking the monopoly of this commerce. When we reach the 19th century, they were separate books, the civil code and the commercial ones. Nowadays we have in some countries a separated civil and commercial code. The Qing civil code Draft is a Unitary code for the civil and commercial law since China did not experience a season of a merchant law as Europe did. (EU went from Ius Mercatorum, Ius Mercaturae to the Unitary codes). In the 1911 a revolution took place and 5 constitutions were made. The foundation of the People’s Republic of China (PRC) is in the 1949 (Previous laws abrogated and the Civil Code stays in force in Taiwan while on the Mainland a Soviet inspired system had been put in place). Because of the revolution the Qing Project did not get into force, another Project had been elaborated near the middle of the 20th century, but for political reason, it didn’t get into force. The Civil Code promulgated between 1929-1931 was inspired by the German, French and Swiss models. After the a “Provisional Constitution” dating back to 1949, a constitution has been promulgated and then a new one in 1975 (only 30 arts). From 1949 to 1957 China was influenced by the Russian Soviet model, and the year later, for the next 10 years the Socialist model was adopted, but in a more “original” way. This decade ended with a cultural Revolution Reform and opening policies. Transition, different from the ones commonly found, why? China is a socialist country. It was a gradual transition, it is still one. Very pragmatic change, they tried to go to use a strategy that was keeping into account tangible ??? Another one was Local conditions, constant experimentation, in general also now in china when they want to study s new regime, they will start ??? Starting from the coast, they realized that it was the way to attract foreigners’ commerce. Lesson 5 12-12-24 Persons and AI Ascription of legal effects. Mentioning the persons, we have a social structure, in order to give an answer. Artificial intelligence. There is a case where an AI has been used to create contents and this uses the points of a professional voice actor without their consent (a tort). The court recognized it as a tort The parties that were sued faulted the AI, then the judges denied this. Case B, here the AI didn’t do something bad, rather an art work. In this case the parties didn’t want the legal effect to be left on the AI, but they wanted the legal effect to be on them, get money using the copyright. In both cases an AI was involved, but it is having a peculiar nature because it’s ending up in the middle of the structures we used in the last centuries. We use persons and these ideas of subject of law in which we consider physical person and abstract ones. We can use this notion for the AI? We have to see how those notions are adaptable to the circumstances or not. The General structure of the Chinese civil code is based on the relationship between subjects of law (abstract, objective law. This one is the rule) defined by the law and rights that they have on the objects (subject, we don’t deal with rule, but with the right I have because the rule recognizes it. Do I need the law to recognize them or are there any rights that belong to human beings, but not formally recognized by the legal order?). Among the legal subjects we don’t have the AI. Nonetheless we have a problem to solve, because not only in china, but in other places, you can find the case of an AI putting in place behaviors that are against legal rules. Some people might use the consequences as they wish (if the consequence is bad, then people want to consider the AI as a person, but if the outcome is good, they want the credits). Through this we have some kind of push towards seeing how we can express some needs that we are receiving from this new kind of society. It never happened before that we have a thing like the AI that its condition is capable to reach sort of goals. Up to now we used to have people and objects, this fact that we have things that are in condition to have a certain kind of will, is giving a certain stress to the category we use in law to deal with the ascription of certain effects. Who are the legal subjects in the civil code are the ‘ziranren’ or ‘natural person’ (people like us, given the circumstances they have in Chinese society, they also have a special kind of natural, which is not a single person, but it is a ‘household’ or ‘hu’. So not a one person, but a group of people belonging to the same family that work on the same thing. This is connected to activities related to very smart kind of commerce or in the agriculture. In China, the lands are either public belonging to the state or a certain community. This households are those that get consensual. It is a problem because the household is different from a natural person, as the latter represent just one single person), the ‘faren’ or ‘legal person’ (divided into ‘for-profit legal persons’ ((a company)) or ‘yingli faren’, ‘no-profit legal persons’ ((association dealing with public benefits))or ‘feiyingli faren’ and ‘special legal persons’ ((usually public legal persons, like a Court, created to reconnect the legal effects)) or ‘tebie faren’. The legal persons is not someone that works in a legal field, but a not physical person but the law says it should be considered as a person in order to reconnect these entities the legal effect) and the ‘feifaren zuzhi’ or ‘organizations without a legal personality’. A private legal person is usually a company, because of historical matters, at a certain point there was the need to consider the company autonomous from the people who were composing it and therefore they needed to create and abstraction and give the company itself this legal personality. They used a ‘fictio iuris’ (theorical fiction that consider the whole organization as a legal person). We have some organizations that are not persons we wish we could reconnect some legal effects (external relevance. If the member is negotiating with other people and the legal effect are falling on the member, I don’t look at the organization, but at the member alone. But if a person is negotiating with other people on behalf of the organization and the legal effect are going straight towards the organization itself, I see that the organization is having relevance towards other people, the latter case is the meaning of the external relevance). The system is based on the will, this is the core of the system, and based on the will I can get a certain right or duty (built on the subjective rights). There are some organizations to which we cannot recognize the legal personality, but we recognize the possibility to interact with the external world. To these legal persons and legal organizations to which are not having a legal personality, are still recognized personality rights. This could be considered as a paradox. Art. 1013 “legal persons and other organizations have the right of name” (one of personality rights). Art 102 “an organization without legal personality is an organization without the status of a legal person but able to conduct activities in its own name […]”. Recognizing personality rights (dignity, for instance) also to both legal persons and those without a legal personality. The idea of personality right should be strictly connected to the person that used to be the human being. The fact the one recognizes personality rights to an artificial person, is more than enough, let alone you recognize it even to organizations which are not considered as a fake person. It’s a separate legal person, but not on its own. I have to consider it separate, to separate its assets to mine. If the company does not pay its debts back, the creditor of the company can only go and look at the assets of the company. Even if we don’t have a legal personality, I may want that this partnership may act like as if it was an entity. The personality is an abstraction, the problem is the conditions in order to ascribe something, legal effect. I have some personality rights that are made for people, but are relevant to a company. How do I protect the reputation of the company? The issue is that we have the noun that took over the contract, so we need to use the scheme of the personality, but we don’t need the idea of personality. Instead it could be a deceiving thing, because it is letting us to make easily connections between a person and their needs and what the law has to protect, and something that is a person just because we decided so. Even if those that we have just seen are solutions reached from paths originated in Roman Law, in order to tackle the challenges we are facing in the XXI century it is necessary to see how these solutions have been reaches, which building blocks have been used and how they have been combined in order to reach these results. These kind of recognition of personality rights to a fictional person, is a stretch of the idea of personality, plus recognize it to something that is not a legal person, is even more of a contradiction. We need to consider firstly, what is considered as a subject (the original meaning was ‘under’. The subject started to be “the one that carries out sentient activity,” so the subject is not passive, but an active side). From the philosophy we have another abstract tool we could use. What happened with the law. With the law we know that even if in roman time sometimes there were some organizations of people, these have been always considered as a number of persons put together. So there was this tangible notion, quite specific and not abstract. Based on the traditional construction, the person was at the core of the legal system. The person is the one that has to be protected by the law. All the law is made for persons. This is important, because it’s giving us the idea of the construction of the system, and here we don’t have a fictional person, but persons like us. There is a difference between ‘homo’ and ‘person’. The latter is already considered the human being within a certain community, the root of the third person is coming from the mask. Compared to ‘homo’ it is more abstract. All the structures we saw were all made for human beings. We started then considering the fact that even if there were divisions between human beings (during roman times), given the fact that the law itself was made for person, despite the divisions, there were legal devices for a slave to be free (as they looked at the ‘homo’, so just the concept of the human being. The ‘homo’ started being separated from the ‘persona’, and the person with the related personality becomes the prerequisite for the recognition of the subjective rights from the state). Things started changing slowly from the middle age. In this period, the idea of university was important because the ‘universitas’ were the religious structures in Rome. When we consider the concept of ‘univeritas’ (people put together to reach a common goal) we can pretend they are a person, but the concept of university is just an abstract notion. We see that still on the same issue, they started talking about a fictional person. This fictional persons and persons represented in your mind were used to connect legal effects to the ‘universitates’. 16th century, the jurist Duarenus say that the university is a legal community that looks like a single person and is different from the specific people that composes it, creating the abstract object. At this point there’s a disconnection between ‘homo’ and ‘persona’ (in Latin was giving us the possibility to move towards a structure, because it was already coming by the procedure of a human being. We see with Pufendort, school of natural law, the theorized notion of a ‘person moralis’ to which was possible to connect both the ‘personae simplices’ ((human beings)) and the ‘personae compositae’). During this period the person from the human being changed to the will, who has a will is to be considered as a person and a subject. If this ‘will’ comes from a single person or an abstract entity, they still receive a personality, subjective rights and be recognized as a subject. The situation is different because here the human being is not at the center of the system, but we have an artificial subjective which is telling what are the rights. The state is possible to be considered as a subject (have its own will) and based to its will, it can tell who’s entitled to have rights and their conditions, and again the connect is the personality and the need to connect the legal effects. Then we reach the level where we have distinctions between the object and the subject. A German guy was trying to put the law in a systematic way and he reached a chapter where he was putting down the structure of china of a theoretical construction based on subject and object. Who are the subjects? Natural persons, or what in English we call legal person. We have on one hand these natural persons, but on the other we have persons that are legal person, not because they work in the legal field, but because they have relation with the law as a person. The German guy said “we have this legal person that have a substrate that could be either an organization of people or things (company, state, foundation). They are based on the assets, but they have recognized certain relevance, legal personality. Now with the AI, we have a new element. The substrate of the previous part, didn’t provide for a thing to have a will. The problem that we have with the AI, is that now things have a will. There is a concept that slides away. Example, we recognize the rights to an organization without a legal personality. You could reach the same result, because we need to protect the reputation of a partnership, but I’ll reach that result, but not fully adaptable. With this economic wall, we set up a company, but we don’t need other people. But a company with a single chief order results as a paradox. Because the ‘company’ is based on a group of people. To use this personality, some kind of privileges tend to get extended. The problem with the AI is just to see who takes the consequences or responsibilities of the doing of the AI. We have to make clear rules on how these consequences should be allocated. The judges were following the roman principle. We said the law is connected to happiness, which means that is required that similar cases should be treated in similar way and so on. Lesson 6. 16.12.24 International investments. Sources of international law. As we will we see, why in the domestic legal orders we have some legislator. (Ppt) D. 1. 1. 1 (Ulpianus libro primo institutionum) ¬Ius naturale -Ius gentium D. 1. 1. 6 (Ulpianus libro primo institutionum) Where does international law come from and how is it made? These are more difficult questions than one might expect and require considerable care. In particular, it is dangerous to try to transfer ideas from national legal systems to the very different context of international law. There is no “Code of International Law”. International law has no Parliament and nothing that can really be described as legislation. While there is an International Court of Justice and a range of specialized international courts and tribunals, their jurisdiction is critically dependent upon the consent of States and they lack what can properly be described as a compulsory jurisdiction of the kind possessed by national courts. The result is that international law is made largely on a decentralized basis by the actions of the 192 States which make up the international community. The Statute of the ICJ, Art. 38 identifies five sources: 1.Treaties between States; [several taxonomies can be used such as bilateral/multilateral] 2.Customary international law derived from the practice of States; [the rule n. 1 here] 3.General principles of law recognized by civilized nations; and, as subsidiary means for the determination of rules of international law 4.Judicial decisions and the writings of “the most highly qualified publicists XIX century -International customs about the protection of goods belonging to foreigners located in other State’s territory -A few treaties XX century -Attempt to reach the agreement for a multilateral treaty on investments on a global or however on a supra-regional scale: not succeeded so far… -In particular after the WWII there was a proliferation of Bilateral investment treaties BITs. New trends: Investment related matters regulated in specific chapters of new FTAs It seems that a number of BITs which are expiring are not being renovated The efforts to reach multilateral treaties are rather focusing on regions and macro-regions (although the results do not seem to be so brilliant so far…) China is a WTO member since 2001 – The main issues with China are rather with the so-called Non-tariff barriers. Nonetheless China is currently party to more than 20 FTAs (including the RCEP – Regional Comprehensive Economic Partnership among the 10 ASEAN Countries + China, Japan, the ROK, Australia and New Zealand – which should be at the moment giving ground to the largest free trade area in the world), it is having more than 10 under negotiation and several more under feasibility study. China – EU FTA negotiations were ongoing but it seems like they have been in stand by since December 2020 (after the Lisbon Treaty – Article 3(1)€ of the Treaty on the Functioning of the European Union (TFEU) – the EU has exclusive powers for common commercial policies + more bargaining power with China) In the context of China-promoted ‘new wave of globalization’ under the impetus of the Belt and Road Initiative (BRI), it might be reasonably expected that the large number of transnational activities would necessitate a higher standard of investment regulation and China itself may play a relevant role in its promotion. China is a member to the ICSID Convention Digression on the regime of the ownership in China: -the ownership in China can be: public or private -the public ownership can be State ownership (ownership of the whole people) or collective ownership (ownership of a given community) Constitution (art. 12) public ownership is sacred and inviolable + Civil Code (art. 206) public property plays a predominant role – other kind of discussions after the 2006 Real Rights Law. Land ownership is public – resources ownership is public. Since the 80s, the international investments in China were mainly regulated through the: -Law on wholly foreign owned enterprises -Law on Sino-foreign contractual joint ventures -Law on Sino-foreign equity joint ventures FOREIGN INVESTMENT CATALOGUE At the beginning of the opening and reform policies there were direct negotiations between governments and their Countries major companies. -1° Edition: 1995 -Following Editions: 1997, 2002, 2004, 2007, 2012 -Last Edition:2015 A special Catalogue for investments in central-western regions had been issued since 2008. Now substituted by the «Negative List» (last edition in force since Nov. 1° 2024) + the Catalogue for Encouraged Industries for Foreign Investors (last edition 2022) with a special part on the central and western regions. Catalogue’s Structure -Encouraged Investments -Tax benefits, approval and authorization processes related benefits etc. -Restricted Investments -Higher requirements and stricter approval and authorization procedures – sometimes necessary to enter a EJV or CJV with a Chinese partner (who sometimes may be required to have the control of the company) -Forbidden Investments -Allowed Investments -Everything that is not mentioned in the Catalogue General provisions Article 1 For the purposes of further expanding the country’s opening up, vigorously boosting foreign investment, protecting the lawful rights and interests of foreign investors, regulating the administration of foreign investment, propelling the formation of a new pattern of extensively opening up, and promoting the sound development of the socialist market economy, this Law is enacted in accordance with the Constitution. Article 2 (…) For the purposes of this Law, “foreign investment” means the investing activities within China directly or indirectly conducted by foreign natural persons, enterprises, and other organizations (hereinafter referred to as “foreign investors”)… Article 3 (…) The state implements high-level investment liberalization and facilitation policies, establishes and improves the foreign investment promotion mechanisms, and builds a stable, transparent, and foreseeable investment environment with a level playing field. Article 4 The state applies the administrative system of pre-establishment national treatment plus negative list to foreign investment. (“Pre-establishment national treatment” means the treatment accorded to foreign investors and their investments no less favorable to that accorded to domestic investors and their investments at the stage of investment access) and (“negative list” as mentioned in the preceding paragraph means a special administrative measure for access of foreign investment in specific fields as imposed by the state. The state accords national treatment to foreign investment outside of the negative list. The negative list shall be issued by or with the approval of the State Council.) Digression: On June 30, 2019, the National Development and Reform Commission (NDRC) and the Ministry of Commerce (MOF) jointly issued two “negative lists” (one to be implemented on a national scale and one for the FTZs) and one “catalogue for the encouraged industries…” (divided between a ‘general catalogue’ and a catalogue for encouraged investments in the central-western regions), all three of which took effect on July 30, 2019. A new Catalogue has been then issues in 2022 and a new negative list in 2024 – in force since November 1st. Art. 4 ult.co. Where any international treaty or agreement concluded or acceded to by the People’s Republic of China provides for any more favorable treatment in respect of access of foreign investors, the relevant provisions of the treaty or agreement may apply. Article 6 Foreign investors and foreign-funded enterprises conducting investing activities within China shall abide by the laws and regulations of China, and neither compromise China’s national security nor cause damage to the public interest. Article 8 Employees of a foreign-funded enterprise shall establish a trade union and conduct trade union activities according to the law to protect the lawful rights and interests of employees. Article 14 As needed for national economic and social development, the state encourages and directs foreign investors to invest in particular industries, fields, and regions. Foreign investors and foreign- funded enterprises may enjoy preferences according to laws, administrative regulations, or the provisions issued by the State Council. Article 16 The state guarantees that foreign-funded enterprises participate in government procurement activities through fair competition according to the law. Products manufactured and services provided by foreign-funded enterprises within China shall be equally treated in government procurement according to the law. Article 20 The state expropriates no foreign investment. Under certain special circumstances, the state may expropriate or requisition the investment of foreign investors in the public interest according to the provisions of laws. Expropriation and requisition shall be conducted under statutory procedures, and fair and reasonable compensation shall be made in a timely manner. Article 21 A foreign investor may, according to the law, freely remit into or out of China, in Renminbi or foreign exchange, its contributions made, profits, capital gains, proceeds from disposition of assets, and royalties of intellectual property rights derived from, indemnity or compensation lawfully acquired, and income from liquidation, among others, within China. Article 22 The state protects the intellectual property rights of foreign investors and foreign-funded enterprises, and protects the lawful rights and interests of owners of intellectual property rights and relevant right holders; and for infringements of intellectual property rights, strictly holds the infringers legally liable according to the law. The state encourages technology cooperation on the basis of free will and business rules in the process of foreign investment. Technology cooperation conditions shall be determined under the principle of fairness by all investing parties through equal consultation. No administrative agency or its employee may force the transfer of any technology by administrative means. Article 23 Administrative agencies and their employees shall keep confidential, according to the law, the trade secrets of foreign investors and foreign-funded enterprises to which they have access in performing their duties, and neither divulge nor illegally provide others with such secrets. Article 25 The local people’s governments at all levels and their relevant departments shall fulfill their policy commitments legally made to foreign investors and foreign-funded enterprises and various contracts legally concluded. Where any policy commitment or provision of a contract needs to be changed in the national or public interest, such change shall be made according to the statutory powers and procedures, and foreign investors and foreign-funded enterprises shall be compensated according to the law for their losses so incurred. Article 26 The state establishes a working mechanism for complaints of foreign-funded enterprises to address concerns of foreign-funded enterprises and their investors in a timely manner and coordinate and improve the relevant policies and measures. Where a foreign-funded enterprise or its investor deems that an administrative action taken by an administrative agency or its employee infringes upon its lawful rights and interests, it may, through the working mechanism for complaints of foreign-funded enterprises, apply for coordination to resolve the issue. Where a foreign-funded enterprise or its investor deems that an administrative action taken by an administrative agency or its employee infringes upon its lawful rights and interests, it may also apply for administrative reconsideration or institute an administrative lawsuit according to the law, in addition to applying for coordination to resolve the issue through the working mechanism for complaints of foreign funded enterprises. Article 31 The business forms, structures, and rules of activities of foreign-funded enterprises shall be governed by the Company Law of the People’s Republic of China, the Partnership Law of the People’s Republic of China, and other laws. Article 32 In conducting production and distribution activities, foreign funded enterprises shall comply with the provisions of laws and administrative regulations pertaining to labor protection and social insurance, conduct taxation, accounting, foreign exchange, and other affairs according to laws, administrative regulations, and the relevant provisions issued by the state, and accept the supervisory inspection legally conducted by the appropriate departments. Article 34 The state establishes a foreign investment information reporting system. A foreign investor or foreign-funded enterprise shall submit investment information to the commerce department through the enterprise registration system and the enterprise credit information publicity system. The contents and scope of reporting of foreign investment information shall be determined under the principle of necessity; and investment information accessible by interdepartmental information sharing shall not be required to be submitted again. Article 35 The state establishes a foreign investment security review system to conduct a security review of foreign investment that impacts or may impact the national security. A decision legally made upon a security review shall be final. Article 40 Where any country or region adopts any prohibitive, restrictive or other similar discriminatory measures against the People’s Republic of China in terms of investment, the People’s Republic of China may adopt corresponding measures against the aforesaid country or region according to the actual circumstances. Article 41 Where the state has issued any other provisions on foreign investors’ investment in the banking, securities, insurance, and other financial industries or the securities, foreign exchange, and other financial markets within China, such provisions shall prevail. Article 42 This Law shall come into force on January 1, 2020, upon which the Law of the People’s Republic of China on Chinese-foreign Equity Joint Ventures, the Law of the People’s Republic of China on Wholly Foreign-Owned Enterprises, and the Law of the People’s Republic of China on Chinese- foreign Cooperative Joint Ventures shall be repealed. Foreign-funded enterprises formed under the Law of the People’s Republic of China on Chinese-foreign Equity Joint Ventures, the Law of the People’s Republic of China on Wholly Foreign-Owned Enterprises, and the Law of the People’s Republic of China on Chinese-foreign Cooperative Joint Ventures before this Law comes into force may maintain their original business forms, among others, for five years after this Law comes into force. The specific implementing measures shall be developed by the State Council. This article 42 has to be coordinated with the above-mentioned art. 31 providing that the foreign-funded enterprises shall be governed by the Company Law of the People’s Republic of China, the Partnership Law of the People’s Republic of China, and other laws -Difference between Company and Partnership -Building blocks of an enterprise structure: the ascription of legal effects: ‘legal personality’; the limited liability: peculium or other mechanism; the contractual element: societas – cum panis (the paradox of the 一人有限责任公司) Lesson 7-8 17.12.24 Contracts In order to understand the Chinese law, we need a bigger prospective. The graph in the ppt, shows the increasing of rate of trade. Why is this important? How is this regulated? We don’t have a supranational law. These increase were supported through the innovation of technology. This relevant increase in the trade was not supported by an equal increase in the quality of the international regulation dealing with aspects. These exchanges are based on contracts, stipulated several times a day. We have in general the idea that a contract is based on agreements, but we always require a bit more than just an agreement, in order to understand it, we have to look at the historical perspective. From the international law we don’t have a strong support, because we don’t have a treaty that gives us a global contract law. The best treaty where the state commit to each other there will be a contractual relation with the citizens, is the LCIA. Which is a convention dealing with the same contract. One of the most important, and also in terms of regulation is not giving us a full regulation related to the same contracts. The domestic rules go in a certain direction, if I put other rules, I put in difficulty the domestic rules. If we have an international law binding instrument, you have always rejection. For instance the LCIA goes in an automatic application if the parties of the contract are member states (italy, china). It means that if I don’t want to apply automatically, I have to express it formally, however we don’t have many of these international law instruments, but we have lots of cases. In order to sell the disputes coming from cross border transactions, instead of going to the judges of a certain country, parties choose an arbitrator because they are faster and in general more professional. These cases are involved in (example, in 2011, 70% of the parties were all from UK. What is the incidence? Basically to deal with these contracts, we don’t have specific rules because we don’t have an international law instruments, where do I find the rules for the contracts? In the civil code. There is a full set of rules for contracts, whatever happens in contracts should be solved within the rules of art (…). However you will find the solution there). Towards the same event, based on the different cultures who may have different rules and judgments, and even giving an interpretation of a single rule, there are different interpretations. Based on semantic and semiotic the variation may increase when we jump from one culture to another one. In the ICC in 2011 there were almost an enormous request of arbitration. The parties were almost 3 hundreds. The place of arbitration was in 63 countries, affecting what is going on with the arbitration, however we’re sure that the decisions are affected by the nationality of the debaters. If we don’t have an international law (gives us the rules to settle the cases) how can we sold the cases? What are the rules we can apply? The arbitrator can settle the cases based on the ‘bonum eternum’ but in general in order to be enforced, the arbitrator has to choose some rules. In general it is used a national law, almost never this kind of international instrument are taken into consideration. In many cases, Parties, don’t get to choose (since you don’t have an international law, what you have as a general custom, is the possibilities for the parties to choose a law to regulate the contract. So it’s the parties themselves that, based on a number of elements, that will decide how to regulate the cases. If parties do not choose you have some default rules that apply, this event is called conflicts of law, it's an area in each domestic legal system. However we see that it’s the parties themselves that choose a certain national law. (To draft contracts you have to see what is the law to use to regulate the contract, because based on that, you give the contract a certain structure), but it happens quite often that parties do not choose a law to regulate the contract. Why does it happen? One of the reasons is that they don’t reach an agreement. The choice of law between different jurisdictions could change the relationships between the parties. In many cases, if they don’t come to an agreement, they postpone the decision, which is a dangerous move. (contracts between privates from different countries, it’s internal companies). Sometimes it happens that people stipulate contracts without realizing it, there are many cases in which people stipulate contracts thinking that the counterparty is getting bound to what they discussed, but the think it’s not happening, so they just want to book the counterpart to a certain agreement, without realizing that they are stipulating a contract, which is dangerous, because when there are these kind of circumstances, in general, you have the obligation happening. In common law there is a distinction between civil law and common law, but in general, if we look at the outcome, it is similar. If you are dealing with contract law, you have to take into account that there are different countries adopting different laws. Most of the world uses the civil law (where the regulation has common features), another greater part has the common law (Anglo-Saxon law), then a smaller part uses the Bijuridical/mixed (mix between civil and common law) and another smaller part uses the Islamic law (they either look at the civil law or common law). So basically you can’t know the law you will apply everywhere in the world, what you can do is approach it by not just knowing the rules (it changes a lot). What is important is the methodology, so within the big mess, you can keep in mind we have two models, the civil one and the common one. They have their own features, in order to understand how these mechanisms work, we have to take a look at when law became a science, because from there we start seeing what are the differences. One important element is that in the common law (expanded when England was expanding, when the countries became independent, they kept on the traditions that were stablished. In these countries you don’t have the legislator for creating many rules for what it concerns the contracts. The legislator doesn’t formulate many rules, but you have many rules that you can use from similar. They use this principle the ‘stare decisis’ (you keep the decision, used in the Anglo-Saxon law). So since you don’t have a certain rule coming from a legislator? You see the decisions on similar cases and then you decide which rule should be applied. In our civil law jurisdictions, we have a different approach. We have a legislator drafting the rules. If I would have been in England (what is now the UK, but it is also broken from the inside), there’s no civil code, but the common one, so I have to take that one in consideration. In other countries I have to use the other countries’ civil codes. In our countries the judges study similar cases in different ways. In the common law we seek more systematization, in the USA we have the ‘uniform commercial code’, while in the civil law we have the need to trying to have a more predictable decision by the judges, because each judge is following their own directions, and lastly we have the supreme court (cannot oblige the other courts on how they have to decide) that try to find ways to try give directions for applications. Going back to the contracts, we have two different approaches. While in a common law contract, if we have a written instrument, want to write a contract, it’s extremely important, it may happen that the judge just reads what’s inside the contract, in our countries (civil law) the judge has more freedom to interact with the contract (because we have many other mandatory rules among the many rules. What are these mandatory rules? Not all rules are mandatory, and in particular in private civil code, some rules are just for indication. If I have many written rules, the probability that I have mandatory rules is higher and if what I write in the contract is not mentioned within the mandatory rule, the judge will apply the rule, not what is written in the contract). Also in common law, if there’s something deceiving, the judge will find a way to deliver justice. What we need to take into consideration is that we need to consider the underline regulations and the impact of the culture. We start from where Rome was way smaller than it is now, we need to consider as well the difference stages of development of Rome, because in these stages there were having different kind of social steps. At the beginning, Rome was a monarchy, then a republic and then it turned back into a monarchy. How were they holding this enormous place? It was clear that Rome was important. The emperor Justinian, was explaining to those who stated studying law that the roman majesty cannot be only honored by arms, but it must be also armed with laws, so that the government may be justly administered in time of both war and peace. He also said that law had a great importance because without the it, the effort made by the army would have been wasted. In order to understand contract law, we have to know what it based on and the reason why he have it. Emperor Justinian laid down as a first statement with regard to the teaching of law students that the magnificence of Rome was not just related to the war, but with the same relevance also to the law, the law was systematically arranged through the work of the jurists that created a logic- based system in order to achieve justice which represents the aim of the law. (Back to the situation of the lands ((lesson 4)), the ground of the obligation was the ‘oportere’, what is this? It was considered by the ‘pontifices’ in ancient Rome as a mean to create a legal religious duty to be performed in the future. Because Roman law was a legal religious system and in particular in this ancient times (first centuries) basically there were these kinds of mechanisms that were based on the work of this potifices ((religious community)) that gave the interpretation of what parties should have done to keep peace. If there was an oportere, in order to keep the society in peace, you were supposed to do that. If not, the consequence would have been the subjection. It is connected to equality and freedom. We have a different kind of approach between the duty and subjection. This oportere was a contractual oportere, we still don’t have a contract, but the oportere that was based on an activity that later one was considered as a contract (legal notion, abstract). At this stage we are dealing with ‘archetypes’ (influence on what happens later on). The contracts were mainly connected to these. Some kind of relationships that may have had a contractual on the verge of the ‘damnatio’(a personal liability arising from the fact that a certain paterfamilias was condemned by the community to the possible unilateral aggression by another paterfamilias without the need of a judgment, if the culprit couldn’t redeem himself in time, he would be considered ‘damnatus’), the nexus was a way to borrow money, but until the moment the money was repaid, the money was kept with the creditor. Then at a certain time, thanks to the work of the jurists, it happened that the oportere started being used more frequently, because the subjection was a big deal. Minor torts were dealt within the oportere mechanism, while for bigger torts that would have been part of a public criminal law. “obligatio” this category was put above the oportere, parties which were bound by an oportere, to be tied to each other. What was the result? The obligatio (the obligation is the right, arising from contracts, torts, ‘negotiorum gestio’, unjust enrichment, and other provisions of laws, of the creditor to request that specific debtor does not perform a certain conduct). If instead we have an obligation, it can be granted through a contract or through a tort. There is a distinction between the duty (generated by a contract) and the liability (subjection, the consequence of non-performing an obligation. The liability arises in case the obligation from the contract, to compensate damage etc. is not performed. And after such a nonperformance, is ‘declared in a judgment’). The third contract. Until the second century after Christ, the term ‘contract’ was not used. It was firstly used a verb to describe a certain kind of activity, the people which were ‘contracted’ at ‘oportere ex spontione’ were contracted ‘cum trahere’ which means ‘bring together’. There is no notion, but the activity. From that there was a first layer, there’s the objective, not the noun, the objective is given by then past participle, what happened? It was contracted, there was an obligation contracted. At a certain point, the world ‘contractus’ (category to group the obligations which were contrae re, verbis, litteris, consensu as opposed to the obligations descending from torts) will appear. Nonetheless, already from the oportere ex spontione, this path started. Let’s go back to the very ancient Rome. At the first stage, there was a ritualistic period. The fact that the roman law was a legal religious system, we say that the law that regulates the relationship between the privates was pointing at based on the customs by the pontifices, and at this time you have this kind of legal system strictly connect to a religious approach. The ritual to produce the oportere was a spoken one, in order to produce the oportere I should have parties both roman citizens, they had to ‘pondere’, one party asked the other one if they wanted to ‘pondere’ on something, the other party was saying ‘I promise’/’pondero’, creating the oportere. When they were doing this, it wasn’t relevant the object of the exchange of the promises, it was important that they would match the formality, if otherwise the oportere was not produced. The most ‘versatile’ form to give rise to obligations was the ‘stipulatio’ (one of the parties who was having interest to create an obligation was soliciting the promise of the other party who was in the freeway accepting the commitment the other party was asking to assume). Within this scheme the parties were allowed to insert many different kind of transactions or different promises as a content. Do I have an agreement in this model? Yes. What I care about more than the agreement is the formalities. If I use the formalities, I have an outcome. This is so strict that it still happens in modern days that I may use these formalities and the outcome will be that? This model (most ancient model of contract) is a model that we have nowadays. When we have to stipulate a contract, we need to match certain kind of formalities. There was at a certain point, meanwhile they were shifting towards another model, even giving a certain things was a kind of formality that could be relevant for a certain scope. What happened? The pontifices created an action that followed the thing, in order to get a restitution of the thing. I couldn’t take back what I gave to another person. So in this case I have formalities but also the relevance of an objective function. We could talk about “casualità formale” (it’s the ritual, the form to be typical. It was an agreement, matching the require formality. It was a typical contract, not free. What happened with these formalities? It happened that the formalities couldn’t work, the moment it got bigger, Gaius was reporting a complain about the formal trials. The trials were fairly ritualistic. Gaio, through an explample said that they needed to create an oportere, not just on the basis of formalities, but on the basis on something else). From a system based on a “causalità formale” (the abiding to formalities was at the basis of the possibility of the rise of an obligation) to a system based on a “casualità sostanziale” (the possibility for an obligation to receive legal protection was related to the fact that it had a certain ‘content’ related to a certain ‘standardized objective function’). We are talking about a transaction scheme based on giving something to receive something back made possible by a contractual application of the ‘conditio’. Dal ppt. The ius gentium was representing the rules and legal structures felt like existing among all the people. These rules and legal structures of the ius gentium were not put in force ‘legibus’, by the means of statues, but ‘moribus’ through the contribution of the jurists by taking into consideration not only the ‘will’ of the Romans but also the ‘will’ of the foreigners, from all the gentes and by employing the good faith as a “guiding principle” given its suitability in operating under circumstances of lack of a government of the economy and where it is necessary to find criteria which allow to keep a contract within the bono et aequo (justice) just by relying on the contract itself even if in the transactions were involved people speaking different languages, having different cultures etc. Thanks to that what is defined as an osmosis between the praxis of the praetor urbanus (handling cases among Roman citizens) and peregrinus (handling cases among foreigners or Romans and foreigners), the oportere which represented the obligation became ex fide bona. Cicero had a philosophical discussion on the relationship between what is “useful” and what is “honest”. Therefore, the ‘magna questio’: who are "honest people," and what does it mean "to behave honestly”? Here comes the link between the philosophical discussion, the older formulae quoted at the beginning of the Cicero`s fragment and the legal conceptualization ascribed to Quintus Mucius. The “enormous power” remarked by Cicero is a “power” which generates meanings, which provides models of behavior, which allows to bridge the abstract notions recalled by the concepta verba (the standardized terms) of the formulae with the case at the hand. The common element in these formulae was the latent reference to the concept of the good faith which (manare latissime) “is reaching very far”: Either:  - In the older formulae which Cicero mentioned at the beginning (where the expression “ex fide bona is not appearing”), or - in those like the one for the sale where such an expression is instead appearing, or - in the others, where in the most of cases counter-claims are admitted (plerisque essent iudicia contraria) Quintus Mucius, the jurist whose systematic skills as we saw were still recalled centuries after for instance by Pomponius (II century), pointed out that: The concept of good faith has the tendency to pervade all the relationship where the “fellowship of life” (societas vitae) among human beings is revealing… Including many others beside those mentioned in the text. The theoretical foundation for further changes also on the side of the procedural law (the agere praescriptis verbis) had been built! Who was in charge of bridging the abstract concept of the good faith and a real case? The eminent judge (magnus iudex) when connecting the facts regarding the case to the parameters which the praetor gave in the formula was then evaluating the behavior of the parties in the light of the concept of fide bona, vir bonus, bene agi etc. These concepts were not possible to be formulated in advance but the judge under the guidance of the jurists should have ‘materialized’ them, eventually even by intervening in and integrating the content of what the parties agreed on. The contract of good faith, got so much importance that soon it became a default rule related to the sale contracts. TO SUMMARIZE: The economy scale was further increasing and becoming even more sophisticated; the ‘old remedies’ were not suitable anymore – in the ius gentium were ‘required’ other models which were suitable for all the gentes, and the jurists had to find a way to ‘identify’ them. The legis actiones had been gradually took over by a less ritualized procedure. The formality and ‘community control’ based legal schemes were not suitable and the attention started shifting from the form to the contents which were anyways ‘typical contents’ – the causa on the basis of which to protect a transaction could have been the fact that it was a sale, a lease, etc. It was also necessary to find common (and therefore versatile with regard to the different cultures, languages etc.) parameters in order to make sure that the law was still aiming at justice: the good faith, ‘immanent’ in all the relationships where the fellowship of life is revealing could serve this scope. -In order to identify in the single case and given the relative circumstances, what was good, honest, etc. -From the procedural point of view because it was possible to be matched with the ‘newly introduced’ formulae which were regarding the oportere based – multi-lateral – legal schemes (the obligations). Tebtunis Papyri n. 105 (Sub) Lease of land contract in Kerkeosiris (Fayum – Egypt) Stipulated in 103 b. C. The parties were: an Egyptian, a Macedonian and a Persian. What was another element (beside the fact that they were typical with regard to the content – objective function) which all these new types of ‘ius gentium contracts’ were having in common? Pomponius (in his work ‘libro IV ad Quintus Mucius’) explains that if a contract involves giving something, it should be undone by giving that same thing back. For example, if you lend something to someone, it should be returned in the same amount. Similarly, if a promise is made verbally, it can be discharged either by returning the object or by a verbal agreement. If you buy, sell, or lease something, these contracts are made simply by agreeing (consent), and they can be ended by a disagreement (dissent). These examples show how certain types of obligations, which were based on mutual consent, started developing under ‘ius gentium’ (the law that applied to all people) and were protected by the ‘praetor’ (the Roman official). The ‘praetor’ worked with jurists to provide legal protection for these kinds of contracts. Legal actions (called ‘formulae’) were created to protect different kinds of transactions, like sales, purchases, leases, and partnerships, using specific legal terms (‘certa verba’) related to the function of the transaction. Quintus Mucius Scaevola pointed out that all these contracts had one thing in common: they were based on consent. This marked the beginning of a new legal era where agreements themselves could create obligations. However, it wasn’t just the act of agreeing that made something an obligation (this idea was later developed by the School of Natural Law in the 16th-17th centuries). Quintus Mucius emphasized that for a contract to create an obligation, the consent (agreement) had to be part of a specific transaction with a clear purpose. Only then could it receive legal protection under the principle of ‘oportere ex fide bona’ (the obligation to act in good faith). NOTE: The oportere ex fide bona is recalling also in the formula the principle that Quintus Mucius was stressing manare latissime. The objective functions which were recognized to be relevant to give raise to an action were a really limited number: sale, lease, mandate (?), partnership (societas) TO SUMMARIZE: The socio-economic needs first push towards abandoning the old form and «rituals» related models With the legis actio per condictionem they already started breaking the ground towards giving more relevance to the function (in that case, broadly speaking, the datio - giving) and slightly less to the rituals. This direction has been travelled further and with regard to some specific ‘types’, the praetor recognized protection to a transaction that was stipulated not by following a certain form or ritual, but by the mere consent as long as the ‘objective function’ was matching with one of those prescribed. At pace with the «new» socioeconomic needs this was already a big improvement compared to the old forms that were not in condition to meet many of the needs rising with the new model of society. Gaius, Istitutiones III, 136: In these contracts consent is said to create the obligation, because no form of words or of writing is required, but the mere consent of the parties is sufficient. Therefore, these transactions can be contracted also by absent parties ; as, by letter or messenger; while the verbal obligations, instead, cannot be contracted between absent parties. Despite all, with these new types of contracts it was still necessary that the elements of transaction (given the inflexibility of the certa verba of the formulae) were strictly matching with the requirements prescribed by the praetor with regard to the type. But, as later clarified by Ulpianus (II – III century) – see D. 19.5.4 – the jurists were also aware of the fact that “It derives in fact from the nature of things, that there are more kinds of business transactions than terms to designate them” D. 50.16.19 Ulpianus libro 11: Labeo, in the First Book On the Urban Praetor, defines the terms “to act”, “to do something legally relevant”, and “to contract”, as follows. He says that the word act has a general application, and refers to anything which is done orally or by the giving of an object; for example, in stipulation or enumeration. Contract instead is a reciprocal obligation, what the Greeks call synallagma, as, for instance, purchase, sale, hiring, leasing, partnership. The term “to do something legally relevant” signifies to do something relevant without words. One of the most studied and discussed fragments. The Justinian’s jurists put it in the Book 50, Title 16 which is “De verborum significatione” – “The meaning of the terms”. Ulpianus is therefore saying that Labeo was considering the contract as reciprocal obligations, what the Greeks were calling συνάλλαγμα, and then follows a list of those which for Labeo could have been considered as «models» of contracts like the sale, the le’se and the partnership. At Labeo’s time the ‘intellectual elite’ Romans were almost bi-lingual with Greek language – in fact the largest part of philosophy, science, literature was coming from Greece. Labeo knew Greek and, to make an example, since the Roman term “contractus” as a noun seems was not employed, he probably used one of the terms that Greeks were using (mainly in the praxis – for what we can see) to designate contractual activities, the συνάλλαγμα, in order to provide an idea of what he was trying to say. Later on, along with the consolidation of the notion of contractus and of the Latin term itself, in the Greek speaking part of the Empire it was adopted (probably also in connection with the influence of Labeo’s employment first and Aristo’s after) συνάλλαγμα as a Greek legal technical term to translate the ‘imported’ Latin technical term contractus. Mutual consent (agreement) of the parties By reading what from Quintus Mucius is reported in D. 46.3.80 and what from Labeo in D. 50.16.19 we can see how the types of contracts listed in both were having a common element which can be considered as one of the elements to be put at the basis of the category: the consent. With regard to the versatility consensus in Labeo’s view: D. 2.14.2 pr. (Paulus, libro 3 Ad edictum): Labeo says that is possible to agree also by giving an object, or, between absent parties, also by a letter, or by a messenger. It is also maintained that it is possible to agree by a tacit consent. Therefore Labeo seems to have been inspired by Quintus Mucius with regard to the consensus and then added another step to the construction of a logical system: the identification of another common element. Ultro-citroque obligatio (causa) As clearly stated in the text of the fragment “contractum” is the ultrocitroque obligation (of course such a structure is possible to be found also in the ‘models’ listed either by Quintus Mucius and by Labeo). The agreement between the parties itself is not enough, but it is also necessary that the agreement is related to reciprocal obligations. By saying that the contractum is the reciprocal obligations and by the examples Labeo brought, the jurist was already pointing out that the minimum requirement that an agreement needed to have in order to be considered as a contract was that it would have given rise to reciprocal obligations. Like in many of the cases – until and during Labeo’s time – which Greeks were calling συνάλλαγμα. In the ius gentium contracts mentioned as models, the agreement should have been related to a certain typical objective function of the contract, which was however also representing cases of transactions with reciprocal obligations i.e. sale/purchase; hire/lease; partnership etc. Labeo, instead, started referring not to the typical function, but just to the structure: reciprocal obligations – this was the causa! The minimum requirement that an agreement needed to meet in order to be considered as a contract. Ulpianus centuries later (after having recalled Aristo’s theory that as we will see his quite close to the Labeo’s and perhaps inspired by the latter) will come up with the really famous statement contained in D. 2.14.7.4: “But, where there is not a causa, it is not under discussion the fact that no obligation can be created by this agreement; in fact, a mere agreement does not create an obligation, but it does create an exception”. And in Labeo’s approach this causa was not only related to a typical function but it managed to make it broader and more adaptable to the new needs arising. The contract started becoming a contractus (noun) and not just a contractum (past participle). The versatile good faith based formulae helped to provide a procedural instrument to protect the contract and, through the good faith principle they recall, provided also parameters to evaluate the contents of the contract in the light of “justice” D. 17.8.1 (Ulpianus libro 31 ad edictum) “in fact, it is necessary, in every contract, to have regard to the initial and to the causa”. Beside the mentioning of the “initium” which is commonly by scholars interpreted as “initial agreement” (合意), and the mention of the causa. What we have to devote out attention to is the fact that it looks like here it is ascribed to Labeo also the use of “contractus” as a noun and not ‘only’ the use of contractum (past participle of the verb contrahere or as an adjective). Another place where we see ascribed to Labeo the employment of the noun “contractus” is D. 18.1.80.3 (Labeo libro quinto posteriorum a Iavoleno epitomatorum) were we read No one considers that it has been sold the thing of which the property is agreed “to be transferred to the buyer, but it is rather a lease or another kind of contract” Or also in D. 19.5.19 pr. (Ulpianus libro 31 Ad edictum) where we read “You asked me to loan you money, and as I did not have it, I gave you a certain thing to be sold that you might keep the price you may receive as a loan. If you did not sell said property, or you did sell it and did not take the price received as a loan, it is safer to proceed, as Labeo says, by an action with a description of the relationship , as if the transaction we entered into was a typical contract” CONCLUSIONS At the earlier stage, the procedure and the substantive law were mainly based on rituals, the agreement in itself was not a source of contractual obligations not even in case it was having as an object a transaction with a typical function – causa. Basically, in order to set up a transaction it was necessary to follow the prescribed rituals and employ the required words. These juridical schemes were matching with a small community, with an economy based on a little scale agriculture etc. With the expansion of Rome, the old schemes were not suitable anymore. The economy became more sophisticated: more sophisticated transactions (started shifting from agriculture to commerce); more sophisticated objects of the transactions (for instance the res mancipi were including only a small number of kinds of animals). More versatility was needed with regard to the possible contents of the transactions and to other cultures which may have been involved. Necessity to start substituting the type of ‘social control’ which in a small city was playing a strong role along with the law with some more law-based instruments. A formal agreement was beginning not to be enough anymore to ensure that what agreed would have been also performed. Too much formality in a more sophisticated environment could provide ‘boomerang effects’ – the example of the vines etc. The ‘structure’ of the ius gentium contracts was based on the consensus + the ‘typical causa’ (objective function); the versatile procedural instrument of the bona fidei actiones and the evaluation parameters arising from the good faith principle allowed to start shifting from formalities. In other terms: the praetor was giving protection to a transaction that was not stipulated by following a certain form or ritual, but by the mere consent as long as the ‘objective function’ was matching with one of those of the types which were regulated. This was still not enough since the certa verba of the formulae (in particular those in the demonstratio) and the self-limitation of the praetor through his edictum were not versatile enough to face the challenges related to the need of new types of contracts or to the new features also within the different types which were required to keep the pace of the expansion and sophistication of the society and commerce. From D. 50.16.19 we can see how for him contracts were related to the consent, they were, basically agreements. Nonetheless, just a mere agreement was not possible to be considered as a contract, but it was also necessary that, in order to receive protection by the law, the agreement was productive of rec