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The Law, the State and Economic Reform

  • Donald C. Clarke
Part of the Studies on the Chinese Economy book series (STCE)

Abstract

A study of the role of law in economic reform in China is hampered by the difficulty of knowing what exactly we are talking about. The legal system, if we can call it that, is not the direct institutional descendant of a European system, and we cannot assume in advance the equivalency of various terms. To translate fa as ‘law’ and fazhi as ‘legal system’ can only be the beginning of understanding, not the end. Indeed, the meaning of fazhi in China itself is not yet complete. Its linguistic limits are still fluid and ill-defined. What it comes to mean will depend on what people want it to mean, and that in turn will depend in large part on the political consequences of defining certain institutions and practices as inside or outside the territory of law.

Keywords

Economic Reform State Council Chinese Communist Party Legal Institution Private Party 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 1.
    V. I. Lenin, ‘The Proletarian Revolution and the Renegade Kautsky’, in Robert C. Tucker (ed.), The Lenin Anthology (New York: W.W. Norton & Co., 1975) p. 466.Google Scholar
  2. 2.
    See, for example, Wang Jiafu and Hsia Shuhua, ‘Carry Forward Democracy, Establish a Sound Judicial System, and Speed Up the Realization of the Four Modernizations’, ZXYJ, no. 8, 1979, translated in FBIS: PSMA, no. 39, 3 December 1979, pp. 9–23.Google Scholar
  3. 4.
    ‘China’s Socialist Legal System’, BR, 12 January 1979, p. 30.Google Scholar
  4. 5.
    One writer characterises ‘the different branches, vertical or horizontal, of the administration … as many little independent ‘kingdoms’ each following its own objectives …’ Wojtek Zafanolli, ‘A Brief Outline of China’s Second Economy’, in Stephan Feuchtwang, Athar Hussain and Thierry Pairault (eds.), Transforming China’s Economy in the Eighties, vol. 2 (London: Zed Books, 1988) p. 150.Google Scholar
  5. 6.
    (Regulations governing State Council documents were issued only in 1987 — see ‘Provisional Regulations on the Formulation Process for Administrative Fagui’, 21 April 1987, ZGFZB, 11 May 1987, p. 2).Google Scholar
  6. 7.
    See ‘A discussion of the problem that ‘law has no effect when it is violated by the multitude’, FZRB, 27 June 1988, p. 1.Google Scholar
  7. 8.
    ‘State Economic Commission and State Commission on System Reform Provisional Rules on Several Problems relating to Enlivening Large and Medium-sized State-owned Industrial Enterprises’, GWYGB, no. 28 (20 October 1985) p. 951.Google Scholar
  8. 9.
    See, for example, Article 12, ‘Law of the PRC on economic contracts involving foreign interests’, RMRB, 22 March, 1985, p. 2 (hereinafter the ‘Foreign Economic Contract Law’.)Google Scholar
  9. 10.
    See, for example, Article 26 of the ‘Provisional Rules on the Contracting-Out Management System for Industrial Enterprises Owned by the Whole People’, GWYGB no. 5 (15 March 1988).Google Scholar
  10. 11.
    ‘Min fa tong ze’ [General principles of civil law] GWYGB, no. 12 (20 May 1986) p. 371.Google Scholar
  11. 12.
    See John Hazard’s comments in his ‘Socialism, Legalisation and Delegalisation’, in Terence Daintith (ed.), Law As an Instrument of Economic Policy: Comparative and Critical Approaches (Berlin & New York: de Gruyter, 1987) pp. 277–78.Google Scholar
  12. 13.
    See William Byrd and Gene Tidrick, ‘Factor Allocation and Enterprise Incentives’, in Gene Tidrick and Chen Jiyuan (eds.), China’s Industrial Reform (Oxford University Press 1987) p. 81.Google Scholar
  13. 14.
    See, for example, the case reported in ‘Dawu Xian court persists in local protectionism, delays for three years and refuses to co-operate in executing a judgement from an outside locality’, FZRB, 4 June 1988, p. 1.Google Scholar
  14. 15.
    See, for example, ‘Enforcement of Law Urged’. CD, 12 April 1986, p. 5Google Scholar
  15. ‘More Muscle Waged [sic] in Enforcing Laws’, CD, 3 October 1985, p. 1Google Scholar
  16. ‘Legal adviser’, ZGFZB, 21 October 1985, p. 3Google Scholar
  17. ‘The antennae of stopping the unlawful occupation of land have extended into every corner’, FZRB, 14 June 1988, p. 1Google Scholar
  18. 16.
    See the review article by William Jones, ‘On the Campaign Trail in China’, Review of Socialist Law, vol. 5 (1979) p. 457.CrossRefGoogle Scholar
  19. 17.
    ‘Enterprise bankruptcy law of the People’s Republic of China’, GWYGB, no. 33 (20 December 1986) p. 979.Google Scholar
  20. 18.
    See Guoying gongye qiye zanxing tiaoli 1 April 1983, in Zhonghua Renmin Gongheguo Fagui Huibian 1983 nian 1 yue-12 yue [Collected Laws and Rules of the People’s Republic of China, January–December 1983] (Beijing: Falüchubanshe, 1986) pp. 383–399.Google Scholar
  21. 19.
    See Xiao Genbao, ‘How the court handled a case of enterprise liabilities exceeding assets’, ZGFZB, 10 July 1985, p. 3.Google Scholar
  22. 20.
    ‘Shenyang City trial rules concerning the handling of the bankruptcy and closing of urban industrial enterprises under collective ownership’. ZGQYJ, no. 1 (1986) p. 55 (hereinafter the ‘Trial Rules’).Google Scholar
  23. See Qiao Mai, ‘The “explosive” experiment of the explosion prevention [equipment] plant’, RMWX, no. 4 (1987) p. 82.Google Scholar
  24. 21.
    See Nicholas Kristof, ‘Turmoil in China’, New York Times, 13 June 1989, p. A1, col. 2.Google Scholar
  25. 22.
    Barrington Moore, Jr., Authority and Inequality Under Capitalism and Socialism (Oxford: Clarendon Press, 1987) p. 99.Google Scholar
  26. 24.
    See Caizheng Bu guanyu guoying qiye li gai shui shixing banfa [Ministry of Finance trial procedures for (the implementation of) the tax-for-profit system in state-run enterprises], 12 April 1983, in 1984 Zhongguo Jingji Nianjian [Almanac of China’s economy 1984] (Beijing: Jingji guanli zazhishe, 1984) sec. IX, pp. 83–84; alsoGoogle Scholar
  27. Zhonghua Renmin Gongheguo Jingji Da Shi Ji (1949 nian 10 yue-1984 nian 9 yue) [Record of important events in the economy of the People’s Republic of China (October 1949–September 1984)] (Beijing: Beijing chubanshe, 1985) p. 614Google Scholar
  28. 25.
    See Max Wilkinson, ‘The Next Stage After Profit and Incentives’, Financial Times (London) 18 December 1987, sec. II, p. 12, col. 5Google Scholar
  29. Fred C. Hung & Calla Wiemer, ‘The Course of China’s Economic Reforms 1978–1985’, Journal of Oriental Studies, vol. 23, no. 1 (1985) p. 73Google Scholar
  30. 26.
    See Janos Kornai, ‘The Dual Dependence of the State-Owned Firm in Hungary’, in Gene Tidrick and Chen Jiyuan (eds), op. cit., p. 327.Google Scholar
  31. 27.
    Gene Tidrick, ‘Planning and Supply’, in Gene Tidrick and Chen Jiyuan (eds), op. cit., pp. 198–99 (emphasis added; footnote omitted).Google Scholar
  32. 29.
    For this line or argument, see Xu Guanglin, ‘An inquiry into relevant problems of legal methods in economic management’, JLDX, no. 6 (1986) p. 59, reprinted in JJF, no. 2 (1987) p. 33.Google Scholar
  33. 30.
    See Guanyu zhengshou shaoyou tebie shui de shixing guiding [Trial rules concerning the collection of special taxes on fuel oil], in 1983 Zhongguo Jingji Nianjian [Almanac of China’s economy 1983] (Beijing: Jingji guanli zazhishe, 1983) sec. VIII, p. 64.Google Scholar
  34. 31.
    See Guowuyuan guanyu guoying qiye fafang jiangjin youguan wenti de tongzhi [State Council notice on questions relating to the issuance of bonuses by state-owned enterprises], GWYGB, no. 8 (10 May 1984) p. 251Google Scholar
  35. Guoying qiye jiangjin shui zanxing guiding [Provisional rules on the taxation of bonuses in state-owned enterprises], GWYGB, no. 20 (30 July 1985) p. 723Google Scholar
  36. Guoying qiye gongzi tiaojie shui zanxing guiding [Provisional rules on the wage adjustment tax in state-owned enterprises], GWYGB, no. 20 (30 July 1985) p. 725Google Scholar
  37. 32.
    See ‘Ministry of Finance notice on resolutely preventing the use of holidays as an excuse for the excessive issue of bonuses, subsidies, and materials’, GWYGB, no. 25 (20 September 1985) p. 862.Google Scholar
  38. 33.
    See ‘Provisional procedures for the control of wage funds’, GWYGB, no. 29 (30 October 1985) p. 979.Google Scholar
  39. 34.
    See ‘State Council Office notice on firmly prohibiting the mutual sending of wall calendars’, GWYGB, no. 7 (30 March 1987) p. 264.Google Scholar
  40. 35.
    See ‘Several rules on strengthening control over the price of means of production and prohibiting the uncontrolled raising of prices and collection of fees, GWYGB, no. 12 (25 May 1987) p. 435.Google Scholar
  41. 36.
    See ‘Ministry of Commerce notice on correcting the practice of small state-owned commercial enterprises of changing their line of business at will and neglecting trade in small commodities’. GWYGB, no. 19 (20 July 1985) p. 716.Google Scholar
  42. 37.
    See Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and especially Justice Blackmun’s dissent, where he holds that ‘[i]n order to get beyond racism, we must first take account of race …. And in order to treat some persons equally, we must treat them differently’.Google Scholar
  43. 38.
    See generally Shao-chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China (Albany: State University of New York Press, 1985) pp. 22–24.Google Scholar
  44. 39.
    For example, see Dong Likun, ‘Nobody can be above the law’, SHKX, no. 1 (1980) p. 10.Google Scholar
  45. 40.
    See Shao-chuan Leng and Hungdah Chiu, op. cit. p. 99.Google Scholar
  46. See ‘Abolish the practice of the Party Committee. examining and approving cases, guarantee independent adjudication by the courts according to law’, RMRB, 25 August 1980, p. 1.Google Scholar
  47. 41.
    See The Beijing Municipal [Party] Committee in recent years no longer examines and approves cases, FZRB, 1 February 88, p. 1.Google Scholar
  48. 42.
    See Articles 35 and 36 of the Organic Law of the People’s Courts of the People’s Republic of China, Zhonghua Renmin Gongheguo Fagui Huibian 1979 nian 1 yue-12 yue [Collected Laws and Regulations of the People’s Republic of China, January–December 1979] (Beijing: Falü chubanshe, 1986) pp. 37–38.Google Scholar
  49. 43.
    Zhao Ziyang, ‘Advance Along the Road of Socialism with Chinese Characteristics’, BR, vol. 30, no. 45 (9–15 November 1987) pp. I–XXVII.Google Scholar
  50. 44.
    See Barbara Teters, ‘The Otsu Affair: The Formation of Japan’s Judicial Conscience’, in David Wurfel (ed.), Meiji Japan’s Centennial: Aspects of Political Thought and Action (Lawrence, Kansas: University of Kansas Press, 1971) pp. 36–63.Google Scholar
  51. 45.
    See ‘Uphold the dignity of the law; do not fear a thousand difficulties and ten thousand dangers’. FZRB, 23 May 1988, p. 1.Google Scholar
  52. For an example from Hubei, see ‘Dawu Xian court persists in local protectionism, delays for three years and refuses to co-operate in executing a judgement from an outside locality’, FZRB, 4 June 1988, p. 1.Google Scholar

Copyright information

© Gordon White 1991

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  • Donald C. Clarke

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