THE FUNCTION OF LEGAL TRANSPLANT IN CHINESE SOCIAL TRANSITION & LEGAL DEVELOPMENT WANG, CHENGUANG TSINGHUA UNIVERSITY LAW SCHOOL Sept., 2011

THE FUNCTION OF THE FUNCTION OF LEGAL TRANSPLANT LEGAL TRANSPLANT IN CHINESE SOCIAL IN CHINESE SOCIAL

TRANSITION & LEGAL TRANSITION & LEGAL DEVELOPMENTDEVELOPMENT

WANG, CHENGUANGWANG, CHENGUANGTSINGHUA UNIVERSITY TSINGHUA UNIVERSITY

LAW SCHOOLLAW SCHOOLSept., 2011Sept., 2011

CONTENTSCONTENTS

I.I. Legal Transplant: A Question for ChinaLegal Transplant: A Question for China

II.II. Legal Transplant: A Common Pattern of Legal Transplant: A Common Pattern of Legal DevelopmentLegal Development

III.III. Types and Basic Conditions of Legal Types and Basic Conditions of Legal TransplantTransplant

IV.IV. Traits and Functions of Legal Transplant in Traits and Functions of Legal Transplant in ChinaChina

It seems plausible that China, in its process of It seems plausible that China, in its process of profound social transition, has used legal profound social transition, has used legal transplant as a powerful means to restructure and transplant as a powerful means to restructure and upgrade its legal system. The reasons are:upgrade its legal system. The reasons are:

As China has a long history of its own, its legal As China has a long history of its own, its legal system is deemed one of the “originals”. system is deemed one of the “originals”.

China has adopted a different social and political China has adopted a different social and political system, insisting on “Chinese Socialist system, insisting on “Chinese Socialist Characteristics”. Characteristics”.

China values its sovereignty dearly. China values its sovereignty dearly.

I. Legal Transplant: A Question for ChinaI. Legal Transplant: A Question for China

The practice of the past 30 years tells us that despite The practice of the past 30 years tells us that despite these doubts, legal transplant has been one of the major these doubts, legal transplant has been one of the major vehicles for China’s legal development, and has played a vehicles for China’s legal development, and has played a significant but often overlooked role in its social significant but often overlooked role in its social transition. transition. Legal transplant—— an effective means for legal construction:

In the early 80s, after reaching the decision to set up a new legal framework for foreign investment, the Central Government ordered the embassies in major foreign countries to collect the joint venture laws from their respective domiciles.

Senior officials, such as the late Vice-Premier Li Lanqing went to Beijing University to attend the courses on foreign investment taught by foreign lawyers and professors.


The reasons for such practices are: The reasons for such practices are: The “original system” no longer exists at the The “original system” no longer exists at the

institutional level, and the modern system has been institutional level, and the modern system has been introduced since the reform of the late Qing Dynasty;introduced since the reform of the late Qing Dynasty;

Before the reform, China had an incomplete legal Before the reform, China had an incomplete legal system;system;

Despite social and political differences, leaders Despite social and political differences, leaders recognized the practical need for reform and the value recognized the practical need for reform and the value of the rule of law;of the rule of law;

Using “the rule of law” to replace “rule of man”, and Using “the rule of law” to replace “rule of man”, and “governance of law” to “governance of policy”.“governance of law” to “governance of policy”.


II. Legal Transplant: A Common II. Legal Transplant: A Common Pattern of Legal DevelopmentPattern of Legal Development

A. From A Historical Perspective: A. From A Historical Perspective: • Solon and Aristotle in ancient Greece;Solon and Aristotle in ancient Greece;• Law of the Twelve Tables in ancient Rome;Law of the Twelve Tables in ancient Rome;• Transplants of Roman law and ecclesiastical law;Transplants of Roman law and ecclesiastical law;• Legal transplant in colonial timesLegal transplant in colonial times ；；• Three waves of legal transplant by “law and Three waves of legal transplant by “law and

Development” movement; Development” movement; • Collapse of the “socialist block”, and the pressure of Collapse of the “socialist block”, and the pressure of

economic development, globalization, and social reform economic development, globalization, and social reform further promoted the transmission of the western legal further promoted the transmission of the western legal system, which is based on market economics and system, which is based on market economics and democracy. The UN, World Bank and Western democracy. The UN, World Bank and Western governments delineate the rule of law as a precondition governments delineate the rule of law as a precondition for economic aid. for economic aid.

B. From A Theoretical PerspectiveB. From A Theoretical Perspective ：： The Institutes of Justinian: Law of Nations provided the The Institutes of Justinian: Law of Nations provided the

early theory of a common law for all;early theory of a common law for all; Allan Watson, Rodolfo Sacco, & Esin Orucu advocate Allan Watson, Rodolfo Sacco, & Esin Orucu advocate

legal transplant, and consider it a common means for legal legal transplant, and consider it a common means for legal development, while recognizing “legal formant” and development, while recognizing “legal formant” and small impacts on the law by other social factorssmall impacts on the law by other social factors ；；

Montesquieu regards legal transplant as a coincidence. Montesquieu regards legal transplant as a coincidence. Savigny ,Savigny , Kahn-Freund and Pierre Legrand deny the Kahn-Freund and Pierre Legrand deny the

feasibility of legal transplant. feasibility of legal transplant. Currently, more scholars recognize the function and Currently, more scholars recognize the function and

effects of legal transplant, but subject it to the impact of effects of legal transplant, but subject it to the impact of other social factors as well. other social factors as well.

II. Legal Transplant: A Common II. Legal Transplant: A Common Pattern of Legal DevelopmentPattern of Legal Development

III. Types and Basic Conditions III. Types and Basic Conditions of Legal Transplantof Legal Transplant

A. Types of A. Types of LegalLegal Transplant TransplantAllan Allan Watson: Watson:

1. Transplant through massive immigration into a new uncultivated territory;

2. Transplant through massive immigration into another society by bringing in native systems;

3. Voluntary acceptation of a foreign legal system.

4. Other forms such as imposed acceptation, selective acceptation, intrusion, filtration, etc.


Jonathan Miller:Jonathan Miller:1.1. The Cost-Saving Transplant:The Cost-Saving Transplant:

China’s foreign investment laws, CISG, China’s foreign investment laws, CISG, intellectual property laws, accounting standards intellectual property laws, accounting standards and many other technical standards. and many other technical standards.

2.2. The Externally-Dictated Transplant:The Externally-Dictated Transplant:In contemporary time, globalization is the In contemporary time, globalization is the powerful engine for externally dictated powerful engine for externally dictated transplant, such as WTO, WHO, other transplant, such as WTO, WHO, other international treaties and even bilateral treaties. international treaties and even bilateral treaties.


Jonathan Miller:Jonathan Miller:3.3. The Entrepreneurial Transplant;The Entrepreneurial Transplant;

Voluntary acceptance by business circles.Voluntary acceptance by business circles.Listed companies are subject to the rules of foreign Listed companies are subject to the rules of foreign securities rules, voluntary adoption of foreign labor, securities rules, voluntary adoption of foreign labor, technical or environmental standards, etc. technical or environmental standards, etc.

4.4. The Legitimacy-Generating Transplant;The Legitimacy-Generating Transplant;Rational transplant of foreign laws by the legislators based Rational transplant of foreign laws by the legislators based on the reputation and effectiveness of foreign laws and their on the reputation and effectiveness of foreign laws and their historical impacts, such as securities law and financial law. historical impacts, such as securities law and financial law.

5.5. Mixed Types in practice. Mixed Types in practice. In practice, the above types never work purely in their In practice, the above types never work purely in their respective frameworks. respective frameworks.

B. Basic Conditions for Successful Transplant:B. Basic Conditions for Successful Transplant:

Legal transplant has no ready guaranty for its success, but subject to certain basic conditions or creation of such conditions.

Internal motives: Internal motives: popular consensus by the leading elite, government, other organizations and citizens. In China the consensus is formed by the strong desire for modernization and economic and social development.

External conditions External conditions such as institutions, social behaviors, morality, economic situation, etc. If they are absent, defective or incompatible, the new system will not work as desired or will bear different results.


IV. IV. Traits and Functions of Traits and Functions of Legal Transplant in ChinaLegal Transplant in China

Adaptation of the transplanted into Chinese soil; Adaptation of the transplanted into Chinese soil; Cannot transplant a full and unmodified system, Insistence on Chinese characteristics and socialist system and

taking transplant as a sovereign issue, Taking a functional and practical approach, with a clear vision

of solving Chinese problems, Coordination of the transplanted with the social reality.

Selective transplant according to China’s social needs; Selective transplant according to China’s social needs; Pitman Potter’s concept of “selective adaptation”, Practical & incremental method of transplant, such as:

rejection of separation of powers but willingness to set up mechanics of power control, the dilemma in judicial reform (accepting judicial independence but often diluting it), etc.


Open attitudes to and tolerance in legal transplant;Open attitudes to and tolerance in legal transplant; Deng’s view of audacious attitude and permission of

failure; Abandonment of the leftist and the cold war mentality; Introduction of foreign concepts, such as limited

government, administrative litigation, exclusion of illegal evidence, etc., while rejecting the “western political system”.

Making sure the transplanted rules and systems are Making sure the transplanted rules and systems are compatible with the current rules and systems in compatible with the current rules and systems in promoting social development. promoting social development.

By way of selective and progressive transplant, By way of creating a social environment, such as SEZs.


Effects of Legal Transplant in China:Effects of Legal Transplant in China: As an impetus for the quick development of a brand

new legal system; Selection of the best from different systems and the

creation of a mixed system; Relatively successful reduction of the tension between

the transplanted laws and the original ones; Effective promotion of social transition and economic

development through using the legal vehicle.

Thank YouThank You

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THE FUNCTION OF LEGAL TRANSPLANT IN CHINESE SOCIAL TRANSITION & LEGAL DEVELOPMENT WANG, CHENGUANG TSINGHUA UNIVERSITY LAW SCHOOL Sept., 2011