published_or_final_version / Social Work / Master / Master of Social Sciences

published_or_final_version / abstract / toc / English Studies / Master / Master of Arts

published_or_final_version / toc / Law / Master / Master of Laws in Human Rights

China permits foreign investors to establish foreign investment companies limited by shares (FICLBS) together with Chinese domestic investors after 1995. FICLBS are a new form of foreign investment in addition to Sino-foreign Equity Joint Ventures, Sino-foreign Contractual Joint Ventures and Wholly Foreign Owned Enterprises. In the meantime, FICLBS have close relations with and are strictly governed by PRC Company Law. The double nature of FICLBS accounts for many characteristics of FICLBS. As a form of foreign investment, FICLBS are based on the foreign investment regime. FICLBS are governed by the legal provisions relating to foreign investment regime. At the same time, various State and Party policies give various characteristics to FICLBS and make them different from other foreign investment enterprises. As a form of modern company, FICLBS are greatly influenced by both civil law and common law as a result of the policy of joining the world economy. This thesis focuses on the common law influences. The influences of common law on FICLBS are manifest in various respects. On the other hand, various Chinese characteristics are intentionally remained. These Chinese characteristics can be found in many important phases and aspects of FICLBS such as corporate capacity, corporate governance, shares and dividends. The contradicting characteristics of FICLBS are a product of the contradicting State and Party policies underlying them. On one hand, China adopts the opening-up policy and has been making constant efforts to join the world economy. On the other hand, China has always been trying to maintain the so-called Chinese characteristics despite the fact that there is no generally accepted definition of Chinese characteristics. Although China has always been committed to keeping its policies consistent, the unstable nature of the policy basis of FICLBS will inevitably affect the future of FICLBS. However, since the opening-up policy of China will not possibly be reversed in the future, FICLBS will remain available for foreign investors no matter how the specific policies are changed.

The topic of this thesis is legal transplants in China since 1978. The first part is devoted to a presentation of contextual elements of Chinese Law, with a critical discussion of various theories of legal transplants, including the most recent Chinese scholarship on this topic. The second part contrasts the influence, on the Chinese legal reforms, of the continental (or civilian) legal tradition with that of the common law. To this end, the author uses a study of the reception of the bona fide principle and of the fairness principle in The Contract Law of the People's Republic of China, with a discussion of the future Chinese Civil Code. The common law's influence, in the same law, is then presented with a focus on the doctrines of anticipatory breach and indirect agency. In the end, the author explains why the civilian legal tradition will remain the dominant, but not exclusive, model on Chinese legal reforms.

Typescript (photocopy) / Thesis (Ph. D.)--University of Hawaii at Manoa, 1980. / Bibliography: leaves 173-177. / Microfiche. / vi, 177 leaves, bound 28 cm

Zugl.: Marburg, Universiẗat, Diss., 2007. / Includes bibliographical references (p. [217]-236) and index.

China permits foreign investors to establish foreign investment companies limited by shares (FICLBS) together with Chinese domestic investors after 1995. FICLBS are a new form of foreign investment in addition to Sino-foreign Equity Joint Ventures, Sino-foreign Contractual Joint Ventures and Wholly Foreign Owned Enterprises. In the meantime, FICLBS have close relations with and are strictly governed by PRC Company Law. The double nature of FICLBS accounts for many characteristics of FICLBS. As a form of foreign investment, FICLBS are based on the foreign investment regime. FICLBS are governed by the legal provisions relating to foreign investment regime. At the same time, various State and Party policies give various characteristics to FICLBS and make them different from other foreign investment enterprises. As a form of modern company, FICLBS are greatly influenced by both civil law and common law as a result of the policy of joining the world economy. This thesis focuses on the common law influences. The influences of common law on FICLBS are manifest in various respects. On the other hand, various Chinese characteristics are intentionally remained. These Chinese characteristics can be found in many important phases and aspects of FICLBS such as corporate capacity, corporate governance, shares and dividends. The contradicting characteristics of FICLBS are a product of the contradicting State and Party policies underlying them. On one hand, China adopts the opening-up policy and has been making constant efforts to join the world economy. On the other hand, China has always been trying to maintain the so-called Chinese characteristics despite the fact that there is no generally accepted definition of Chinese characteristics. Although China has always been committed to keeping its policies consistent, the unstable nature of the policy basis of FICLBS will inevitably affect the future of FICLBS. However, since the opening-up policy of China will not possibly be reversed in the future, FICLBS will remain available for foreign investors no matter how the specific policies are changed. / Law, Peter A. Allard School of / Graduate

Of the many and varied institutions which make up a particular culture or society, enabling it to survive and prosper, and judgement as to relative importance or significance is perhaps impossible. Yet it is difficult to deny that law, defined in its broadest sense, with its accompanying legal institutions, normally plays a significant role. To the historian dealing with ancient history, the Code of Hammurabi, the Russkais Pravda of Yaroslavi the Wise, the Laws of Manu, and the Acts of the Saxon Kings are documents of immense importance. They portray in clear terms property relationships, behavior patterns, and class structure. In addition, however, they represent value judgements. Each prohibition, each effort to provide restitution for injury, each rule governing the conduct of the individual or the group, rests implicitly on a positive “ought”. Each era, historically speaking, makes ethical judgements which are enshrined in law. The historical entity which we label the “Chinese civilization” is no exception. As one uniquely qualified observer has noted, “A county could not possibly have lasted so long without sound legal principles as her foundation and without having continually drunk from the life-giving fountain of justice to perpetually renovate herself.”1 It cannot be emphasized too strongly that the Chinese legal system not only was the third earliest historically, preceded so far as is known only by the Egyptian and that of Mesopotamia, but also had the unique distinction of being the only ancient system that survived continuously to the 20th century.2 In this study an attempt has been made to paint a broad picture of the role of law in Chinese society down through the centuries of Chinese recorded history. The similarities and contracts particularly the latter, between the structure of function of law and legal institutions in Western civilizations and those in China are investigated. The role of the almost indefinable “li” and its never-ending struggle with the forces of positive law are surveyed. Beginning with the development of law in ancient and feudal China, and the, historically speaking, early conflict between the Confucianists, exponents of the “li”, and the Legalists, advocates of positive law, the study proceeds to an historical survey of the sources of positive law, from the classic texts through the unbroken line of codes. An attempt is made to analyze the apparent lack of a clear distinction in Chinese laq between the civil and the criminal aspects, seemingly so “foreign” to Western thinking. FInally, the Westernization of Chinese law in 20th century is described, concluding with some tentative observations of the developing structure of law in Communist China and the difficulties faced by a society attempting to reconcile its role as historical heir to the “li” - “law” dichotomy and political heir to Marxist legal theories.

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