China and the WTO: A Long March towards the Rule of Law

by Esther Lam

Overview

Joining the World Trade Organization (WTO) enables China to reform its legal order and to move towards a system incorporating major principles of the rule of law. The WTO also serves as an external impetus that guides contemporary Chinese legal reform and orients it in ways that domestic forces alone could not achieve and sustain.

Product Details

ISBN-13:	9789041131447
Publisher:	Wolters Kluwer
Publication date:	10/05/2009
Series:	Global Trade Law , #23
Pages:	264
Product dimensions:	6.10(w) x 9.70(h) x 0.80(d)

Table of Contents

List of Abbreviations xiii

Foreword by WTO Director-General Pascal Lamy xv

Acknowledgements xvii

Introduction xix

Part I Understanding the Chinese Legal Order 1

Chapter 1 Burden or Assets? Chinese Legal History at a Glance 3

I The Ancient Chinese Legal System 3

A Core Norms and Origins: Legalism and Confucianism 4

B The Confucianization Process 5

C Key Confucian Teachings Incorporated into Chinese Law 6

1 Family and Kinship System 6

2 Social Hierarchy and Stratification 7

3 Law and Morality 8

II Basic Features of the Traditional Chinese Legal System 9

A A Secondary Role of Law in Society 9

B Law: Merely a Means to an End 10

C Inequality before the Law 11

D Insignificant Individual Rights 11

E A Non-litigious Society 12

F No Separation of Powers 13

III The Legal Reforms of the Early Twentieth Century 13

A Late Qing Reform Measures 14

B Towards Criminal and Civil Law Codes 15

C Resistance to Legal Reform 16

D Lessons from the Reform Efforts 17

E The Theoretical Deficit of Chinese Law 18

IV Concluding Remarks 19

Chapter 2 The Pre-WTO Chinese Legal System after 1949 21

I Communist Influence: Mao and Cultural Revolution 21

A An Overview of the Law under Mao 22

B The Significance of Mao's Rule to China's Legal Development 23

II Economic and Legal Reform under Deng Xiaoping's Rule 24

A The Changing Role of Law 25

B The Legal Regime of Pre-WTO China 26

1 The CPC and the Government under Chinese Law 26

2 ‘A Socialist Market Economy’ 27

3 An Economics-Driven Legal Reform 29

C Legal Reform 30

1 The CPC and the PRC Constitution 30

2 Legislative Aspect 32

3 Judicial Aspect 33

4 Law Enforcement 35

D Constraints in Legal Reform 36

1 Regionalism 37

2 Arbitrary Administrative Power 39

3 Weak Law Enforcement and Institutions 40

4 Lack of Transparency and Predictability 42

5 Corruption and Weak Due Process 42

6 Blurred Party and Government Power 43

III Concluding Remarks 43

Part II China's Long March to the WTO: Motivations, Process and Challenges 45

Chapter 3 Motivations 47

I Trade and Economic Considerations 48

II Non-trade Considerations 49

A Regaining Central Control 49

B Consolidating Reform Policy towards a Market Economy 52

C Countering Domestic Political Opposition 53

D Overcoming Reform Bottlenecks 55

E Advancing Stalled Legal Reform 56

F Foreign Policy and External Concerns 57

Chapter 4 China's WTO Accession Process 59

I The WTO Accession Mechanism 59

II An Unusual Journey: China as a Special Case 64

A Accession Chronology 64

B The GATT Stage 65

C The WTO Stage 66

III Why Did It Take So Long? Major Stumbling Blocks 67

A Uncertain Legal Status: Resumption of Membership or Accession? 67

B Hiatus after the Tiananmen Square Events 69

C Tough Bilateral Negotiations 71

1 The United States 72

2 The European Union 74

D Multilateral Bargaining 75

1 Foreign Exchange and IMF Intervention 76

2 Systemic Guarantees 78

3 The Transitional Review Mechanism 80

4 Holding Out until the Last Moment 81

E An Unorthodox Ratification Arrangement 82

Chapter 5 Accession Commitments and Systemic Requests 85

I The Implementation of WTO Rules in the Chinese Legal System 85

A Debates over Direct Applicability 86

B Dualist or Monist Approach 87

C Judicial Interpretations 88

D Limited Relevant Case Law 90

II WTO Challenges to the Chinese Legal System 92

A Deciphering the Accession Package 92

B Uniformity in Administration of China's Trade and Legal Regime 95

1 WTO Requirements and China's Commitments 95

2 Concrete Chinese Actions and Their Significance 97

C Transparency and Predictability 100

1 WTO Requirements and China's Commitments 100

2 Concrete Chinese Actions and Their Significance 102

D Non-Discrimination 104

1 WTO Requirements and China's Commitments 104

2 Concrete Chinese Actions and Their Significance 106

E Judicial Review by Impartial and Independent Tribunals 108

1 WTO Requirements and China's Commitments 109

2 Concrete Chinese Actions and Their Significance 111

III Concluding Remarks 114

Part III The Impact of China's WTO Membership on the Chinese Legal System 117

Chapter 6 Changing Relationship between Legal Authority and Political Power 119

I Redefining the Role between the Market and the Government 120

A The Foreign Trade Law: A Legally Guaranteed Right to Trade 121

B The Administrative Licensing Law: A Paradigm Shift 123

II A Stronger Role of Law in Policy-making 126

A The Foreign Investment Regime 128

1 Provisions on Guiding Foreign Investment Direction 129

2 Catalogue for the Guidance of Foreign Investment Industries 130

B A Direct Transplant of WTO Rules 132

1 Anti-dumping Regulations 133

2 Safeguards Regulations 136

C Intellectual Property Rights Law 139

1 Legislative Efforts 140

2 Judicial Process and Efforts to Improve Intellectual Property Rights Adjudication 142

3 WTO Focus of Concern: Enforcement Deficiency 145

III Concluding Remarks 149

Chapter 7 Incorporating Major Rule of Law Principles into the Chinese Legal System 151

I Key Relevant Rule of Law Principles 153

A Globalization: Converging International and Domestic Laws 154

1 Globalization Defined 155

2 Globalizing WTO Rules 156

B Applicability in the Chinese Context 157

1 A Pragmatic Approach 158

2 Four WTO-Induced Principles 160

II Assessment of Four Rule of Law Principles in China 161

A Due Process and Procedural Fairness 161

1 Legislative Changes 162

2 Relevant Cases and Executive Action 163

B Transparency 164

1 Legislative Changes 165

2 Relevant Cases and Executive Action 167

C Equality 169

1 Growing Disparities 172

2 Relevant Cases 173

D Justiciability of Government Actions 174

1 Legality Review Mechanisms in China 175

2 Relevant Cases 176

III Concluding Remarks 178

Chapter 8 Challenges Ahead: Opportunities and Risks 181

I Opportunities for Positive Development 181

A Clearer Framework for Reform: Lessons from the Property Law 182

B Legality Crucial for Regime Legitimacy 185

C A Boost in Public Reliance on Law and the Legal System 190

II Risks and Challenges 193

A Weak Implementation Risks Disillusion 194

B Uncertain Legal Status of the CPC 195

C Response to Social Conflicts: Rules-Based Approach or Power Politics? 198

III Conclusion: China's Long March Forward 200

Appendix 205

Bibliography 219

Index 235