Unit 1

Legal Heritage

25-1
 Case Details
 You have decided to start a film production company in
Wenzhou and have decided the first film that you will produce
is called “Love in WKU”.
 The script is produced by a friend of yours.
 You have also decided to get professional film directors and
production people.
 You would also like to use several pop songs in your movie.
 The film will have several settings in different places in WKU.

From legal perspective, what are you concerned about?

 Index
 What's law?
 Schools of Jurisprudence
 History of American Law
 Source of American Law
 Priority of American Law
 Source of Chinese Law
 Law Making in China
 What is Law?
 The law consists of rules that regulate conduct of
individuals, businesses, and other organizations
within society
 It is intended to protect persons and their property
from unwanted interference from others
 The law forbids persons from engaging in certain
undesirable activities
 Definition of Law
 A body of rules of action or conduct prescribed by
controlling authority and having binding legal force
 That which must be obeyed and followed by citizens,
subject to sanctions or legal consequences

 Is this definition accurate? or enough?

 Functions of the Law
 Keeping the peace
 Shaping moral standards
 Promoting social justice
 Maintaining the status quo
 Facilitating orderly change
 Facilitating planning
 Providing a basis for compromise
 Maximizing individual freedom
 Qualities of the Law
 Fairness
 The U.S. legal system is comprehensive, fair, and
democratic

 BUT the legal system may still allow guilty parties to

go unpunished...
 Standefer v United States
 W.C. Ritchie & Co. v Wayman, Attorney for Cook
County, Illinois
 Rostker, Director of Selective Service v Goldberg
 Qualities of the Law
 Flexibility
 The U.S. law evolves and changes along with the
norms of society, technology, the growth and
expansion of commerce in the U.S. and the world

 Landmark Case
 Plessy v. Ferguson
 Brown v. Board of Education
 Schools of Jurisprudential Thought
 Natural Law School
 Law is based on what is “correct”
 Law should be based on morality and ethics
 Historical School
 Law is an aggregate of social traditions and
customs
 Changes in the norms of society will gradually be
reflected in the law
 Schools of Jurisprudential Thought
 Analytical School
 Law is shaped by logic
 The emphasis is on the logic of the result rather
than on how the result is reached
 Schools of Jurisprudential Thought
 Sociological School
 Law is a means of achieving and advancing certain
sociological goals
 The purpose of law is to shape social behavior
 Command School
 Law is a set of rules developed, communicated,
and enforced by the ruling party
 The law changes when the ruling class changes
 Schools of Jurisprudential Thought
 Critical Legal Studies School
 Legal rules as unnecessary
 Legal disputes should be circumstantially solved
by applying arbitrary rules of what is deemed
“fair”
 Law and Economics School
 Promoting market efficiency should be the central
concern of legal decision making
 History of American Law

 English system of law was adopted as a system of

jurisprudence in early American colonies
 Acted as a foundation for American judges to develop
a common law in America
 English Common Law

 Developed by judges who issued their opinions when

deciding cases
 Principles announced in these cases became
precedent for later judges deciding similar cases
 English Common Law can be divided into cases
decided by different courts
 English Common Law
 Law Courts
 Uniform system of courts emphasizing form over
substance
 Granted only monetary damages
 Courts of Chancery (equity courts)
 Equitable remedies shaped to fit each situation
 Merchant Courts
 Solved commercial disputes based on trade
practices
 Sources of Law in the United States
 Constitutions
 The U.S. Constitution is the “supreme law of the
land”
 Establishes structure of federal government
 Legislative branch
 Executive branch
 Judicial branch
 Sources of Law in the United States
 Treaties
 The President, with the advice and consent of the
Senate, may enter into treaties with foreign
governments
 Treaties become part of the supreme law of land
 Treaties affect international business
 Sources of Law in the United States
 Federal Statutes
 Statutes are written laws that establish certain
courses of conduct that covered parties must
adhere to
 The U.S. Congress enacts federal statutes
 Federal statutes are organized in to code books
 These code books constitute codified law
 Sources of Law in the United States
 State Statutes
 State legislatures enact state statutes which are
placed in code books or on the Internet
 Ordinances
 Law enacted by local government bodies
 Ordinances are codified
 Sources of Law in the United States
 Executive orders
 Issued by the president and state governors
 Example - Prohibiting U.S. companies to sell
goods and services to an enemy country during
war
 Power derived from express delegation from
legislative branch or implied from constitutional
powers
 Sources of Law in the United States
 Regulations and Orders of Administrative
Agencies
 Empowered by legislative and executive branches
of government
 Adopt rules and regulations
 Enforce statutes
 Hear and decide disputes
 Many agencies regulate business
 Example – SEC & FTC
 Sources of Law in the United States
 Judicial decisions
 Federal and state courts issue judicial decisions
 Judicial decisions state the rationale used by the
court in reaching that decision
 Priority of Law in the United States
 The U.S. Constitution and treaties take
precedence over all other laws
 Federal statutes take precedence over federal
regulations
 Valid federal law takes precedence over
conflicting state or local law
 Priority of Law in the United States
 State constitutions rank as the highest state law
 State statutes take precedence over state regulations
 Valid state law takes precedence over local laws
Source of Law in China

灋
 獬豸 (xie zhi)
(statue in front of tomb of Emperor Xiao in Ming Dynasty)
 “li” and “fa”

 Rule of li ( 禮 ) vs. Rule of fa ( 法 )

 Li – rites & norms of propriety – moral rather than
legal
 Fa – backed up by penal sanctions
 Both li and fa: rules governing human conduct
 Major laws since 1979

 1979: Criminal Code, Law of Criminal Procedure,

Joint Venture Law, Organic laws on people’s
congresses, courts, prosecutors
 1982: new Constitution
 1982: Law of Civil Procedure (Provisional); replaced
1991
 1986: General Principles of Civil Law
 1989: Law of Administrative Litigation
 Major laws in the 1990s

 1993: Company Law

 1994: State Compensation Law
 1995: Law on Judges; Law on Procurators (amended
2001)
 1996: Law of Administrative Punishment
 1996: new Law of Criminal Procedure
 1997: new Criminal Code
 1998: Securities Law
 1999: new Law of Contract
 2000: Law on Legislation
 Law Making in China
 The National People's Congress (NPC)
 The NPC Standing Committee
 Local People's Congress
 The State Council

30
The National People’s Congress (NPC)

The NPC

The NPC Standing Committee

Special Committees under NPC
•The Nationalities Committee
NPC Deputy •The Law Committee
Qualification •Committee on Finance and Economy
Review Commission •Committee on Education, Science
and Public Health
•The Foreign Affairs Committee
•The Overseas Chinese Committee
Working Committees under NPC
•HK SAR Basic Law Commission •The Committee on Internal and
•Budget Commission Judicial Affairs
•Legislative Affairs Commission The Committee on the Protection of
•NPCSC Office Environment and Resources
The Committee on Agriculture and Rural
Region
 Structure
 Members of the NPC are elected by the people's
congresses of the 31 administrative units at provincial
level:
 the provinces,
 the autonomous regions and
 the municipalities directly under the central
government's control and
 the People's Liberation Army.
 A Structure
 Term: 5 years;
 The total number: not exceeding 3,000;
 Women:
 around 21% of the total NPC members
 (under-represented);
 Ethic minorities:
 13-15% of the NPC members (ethnic minority population is
around 10% of the total Chinese population, appropriately
represented in the legislature);
 CCP members:
 Over 60% of the NPC members (an obvious indication of the
party's influence over the legislative activity).
 NPC’s Powers
Constitution art. 62:
 Amending the Constitution;
 Supervising the implementation of the Constitution;
 Enacting and amending basic laws;
...
 Operation
 Annual meeting:
 two weeks in March;
 Members:
 Most have little knowledge of law-making;
 Delegations:
 Before a session, members are grouped into delegations
based on the units that selected them:
 In practice, NPC delegates from the same province,
autonomous region or city directly under the State
Council are grouped into one delegation.
 The deputies from the army also form a delegation.
 Many activities, including submitting bills, are done
within or in the name of a delegation.
 The Legislative Process
 The Legislative Process
 The law-making procedure of the NPC is governed
by the Procedural Rules of the NPC (1989) which
supplement the NPC Organic Law (1982).
D. The Legislative Process
 The NPC Standing Committee

 Apart from the NPC, the NPC Standing Committee

is the next highest organ in the constitutional
structure.
 There are around 150 members.
 Over the last two decades, most of the laws in
China were adopted by the NPC Standing
Committee.
 The State Council
 Also known as the Central People's Government, the
State Council is the highest organ of state
administration and the executive body of the NPC.
 The State Council and its various departments were
also empowered to make regulations, while the
priority is lower than laws.
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