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On-Going Projects
During the past twenty years, the Chinese economy has been in transition from a centrally planned, centrally directed, and largely self-contained socialist model, to a mixed economy characterized by a growing private sector, increasing reliance on market forces, and a thriving international trade. Accompanying this economic transition is a dramatic evolution in Chinese legal institutions and the role of law in Chinese society. For the first time in Chinese history, the law is becoming not merely an instrument of the state for protecting state interests, but a mechanism for facilitating the private transactions of private agents. Moreover, the impetus for this change is coming from below — from China's new entrepreneurial sector, and from a growing legal consciousness among the Chinese people — rather than being imposed from above. Nowhere is this development more important than in the Chinese judiciary, and within the judiciary, in the adjudication of commercial disputes among Chinese and between Chinese and foreign business entities. Both Chinese and Western scholars share an intuitive understanding that establishing the primacy of law and an autonomous judiciary are at once indispensable to the transition to a market economy and the inevitable result of that transition. Both suspect that profound social and political consequences will inevitably follow. Nevertheless, few American scholars fully appreciate the Chinese historical and cultural context that informs and will ultimately shape the evolving Chinese legal regime. Few Chinese scholars fully understand the Western experience that prompts expectations, even demands, for Western norms in Chinese legal institutions. And few scholars on either side of the Pacific know anything at all about the dynamics of this evolution in Chinese legal practices, institutions and sensibilities. Who are the litigants? How are they counseled? What are they seeking? Who are their judges? How are their cases being decided? Why? By systematically observing and documenting these aspects of the Chinese commercial litigation process, by exchanging perceptions and perspectives with our counterparts in both countries, and by publishing the results of our research in English and Chinese, we hope to capture this historical moment in the development of Chinese judicial institutions. What we learn and share with scholars in both China and the United States will have practical and immediate implications for business transactions between the two countries. In the longer term, our collaborative research will open new
opportunities for historical and comparative studies: the role of law
in traditional and modern China, the development of legal institutions
in China and other socialist states, and, of course, the relationship
between law and commerce in China and the West. Ultimately, our work cannot
but enhance mutual understanding and, in turn, lead to improved relations
between China and the United States. II. Research Program The research program will begin on July 1, 1998, and end on June 30, 2000. Although the program is divided into an empirical and an analytical phase, these phases overlap in time and publications will result from both phases. A. Empirical Phase: Data Collection, Annotation and Publication. During this phase, Chinese and American researchers will collect and assemble detailed information on contemporary commercial law cases in Chinese courts (with initial focus on intellectual property related materials), including parties, facts, legal arguments, relief sought, and disposition. Special attention will be paid to the courts' rationale for their decisions. Documentary information will be collected where available; elsewhere, case studies will be created by Chinese researcher/reporters attending and, where permitted, videotaping actual trials. This raw material will be translated, annotated and organized by American scholars, in consultation with their Chinese counterparts. Although this material will be thoroughly analyzed by the project team in subsequent phases, publication in both Chinese and English will begin as soon as possible so that other scholars (as well as entrepreneurs and their attorneys) will have an early opportunity to review the materials and thereby contribute to the final product. The Asia Pacific Legal Institute, in cooperation with the University of Washington Asian Law Program, has already taken initial steps toward the collection of published intellectual property cases before the Shanghai High People's Court. With the support of the Peking University Department of Law, Shanghai University, Chinese Southwest University of Political Science and Law, the Chinese Ministry of Justice, State Bureau of Foreign Experts, State Science and Technology Commission (now the Ministry of Science and Technology) and the Law Science Institute of CASS, this effort will be broadened to include other courts, other commercial law subjects, and unpublished cases. Because of this headstart, publication of case studies can begin as early as 1999. B. Analytical Phase: Historical and Comparative Symposia and Publications. As the raw materials are collected, scholars in both the United States and China will study them using four primary analytical approaches: (1) the mutual dependency between the development of a market economy and judicial autonomy in contemporary China; (2) the evolution of legal consciousness among the Chinese people from traditional China to the present day; (3) a comparative analysis of the relationship between commercial development and judicial independence in China, Japan, Western Europe and the United States; and (4) the potential value of the Chinese model for emerging economies of Eastern Europe and the Third World. Much of the foundational work for this phase of the project is already being performed by individual scholars at the various institutions represented by this proposal. Ongoing historical and comparative studies will be enhanced by the availability of new empirical research produced by this project, and established relationships between scholars, lawyers and judges in the United States and China will be deepened and focused by project's ambitious goals. But the final products will represent a new and unprecedented contribution to mutual understanding between the two countries. Those products will take the form of public symposia in China and the United States during the second and third years of the project, and bilingual publication of all research results through the Baltimore Studies in Nationalism and Internationalism and other publishing outlets available to participants. The symposia will bring together Chinese and American scholars and jurists to share their analyses of the empirical data from various academic and cultural perspectives. Publications will be in the form of a book, or series of books, published jointly in both languages, and individual articles by project participants.
While regular classes and information acquisition are underway, APLI has taken the next step to organize an American delegation to visit Sri Lanka. This delegation will participate in a major international intellectual property conference. In addition, members of the delegation will offer a round of lectures at the SLLC and engage in a number meetings with key professionals and senior officials for meaningful dialogues. APLI is especially grateful for the funding support from TIPS/IESC. Although just formally launched, this program has already received strong support from all sectors, especially the Ministry for Internal, International Trade and Food, International Business Machines (Sri Lanka), Ltd. and the American Chamber of Commerce in Sri Lanka. In addition, thanks to the generous support from IBM Sri Lanka, the SLLC is now "wired up" with broad bandwidth, high-speed Internet access and possesses the capability to conduct multimedia teleconferences. SLLC is also developing a website for this program. Despite the civil war, the program moves ahead with stride. In fact, it offers something positive for the future legal and economic development of the island state. Meanwhile, APLI has agreed to be a temporary host to provide this program's information from the United States. |
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Project Han-Fei:
Building A Bridge between the Chinese and the American Jurisprudence. 