Updated: Jul 9, 2021
Report by Maria Mengoni
On May 29th we had the pleasure of hosting Enrico Toti for our 15th webinar: “Chinese law: a paradigm?”. Enrico Toti has been specializing in Chinese law since 1997 and teaches Chinese law in the Law Department of Roma Tre University. He’s also a visiting Professor at Shanghai International Studies University School of Law and founder of the Cinalex website. The event was moderated by Malvina Montini, member of the European Guanxi Strategic Communication Team and Head of the Twitter Team.
Before explaining the current situation of the Chinese legal system, Professor Toti presented some warnings that cannot be overlooked when approaching Chinese law: one must focus both on the source of law and on the translation of the law text from Chinese to English, which may often be inaccurate. Also, it is important to pay attention to the complexity of the situation, keeping in mind that law on the books doesn’t always correspond to law in action; therefore, he recommended thoroughly reading the full text of the law and remembering that soft law is also a big factor in shaping Chinese law.
Professor Toti then proceeded to briefly analyze the history of law in China. The introduction of written law is actually very recent in this country as Chinese law was first codified at the end of the Twentieth Century; because of its rigorous organization, the Roman Law model prevailed when choosing between it and the common law model. First of all, the Chinese legislator worked on the codification of commercial law, basing it on the need to stabilize the economic sector during the 改革开放 (gaige kaifang, reform and opening-up period). After that, private law and administrative law began to be codified.
In recent times the legal system in China has been increasingly influenced by some aspects of common law, such as the rising role of Jurisprudence, while still keeping a “frame” of civil law: our speaker referred to this as a new legal model – the Chinese civil law – that needs to be approached using the comparative method. As a result, we can link the hardware of the law to written law, the fixed part that gives stability to the whole system; consequently, transplants of the common law institutes represent the software of the law.
These instruments taken from different models allow China to deal with the complexity of everyday life situations and with the vast territory subjected to the law, merging the need of stability and the necessity of adjusting to the constant and rapid change in most aspects of life in China.
In conclusion, Professor Toti suggested not to underestimate the soft law factor in China and its importance in shaping the future hard law.
To watch the whole webinar, you can check out the registration of the event posted on our YouTube channel.