R.CardilliSchool of LawUniversity of Rome “Tor Vergata”TRANSITIONAL FACTORS IN CHINESE SOCIETY:THE CIVIL LAW AS A POSSIBLE
1. Social Change and Law • In 1922, Max Weber remarked that:the modern capitalism prospers in the same mode and also presents essentially similar economic characters, under the legal systems that, considered from a legal technical point of view, possess extremely heterogeneous norms and institutions …and profoundly diverge among them even in the same new structural formal principles
In 1974, Niklas Luhmann stressed:- the role of dogmatic in the comprehension of an existent, and thus historically determined, social reality; - the necessity of a verification both of the resistance and change of this dogmatic in social transition processes.
2.Economical Transition and Law in China • The positive consequences that the opening of the planned economy to the market economy has produced in China, also in its internal market, have been accompanied by a legal process of production of law through legislation which seems to point out that China is moving towards a codification in stages (Schipani)
The many times noticed Chinese way towards the Rule of Law (Ajani), is not immune to important selection of appropriate contents typical of the civilian tradition which is founded on the Roman Law (Jiang Ping): individual property, rights in re aliena, contract, obligation, limited liability of the enterprise etc.
3. Property and ‘properties’ • Public property • Collective property • Individual property • Rights in rem
4. Contract Law and Contracts • From the Economic Contract to the Contract of the Civilian Tradition • The Importance of the different types of contract (Sale, Lease etc.) • The Importance of the Principles (Good Faith, Equity etc.)
Conclusion:The Civilian Tradition in China today • To what extent could the process of transition experienced in China, from a planned economy to a market economy, avoid social traumas and profound crisis like those we saw in Russia with the downfall of the URSS through the utilization of means of law suitable for the change, is still an unsolved question.
The speed of transition is anyway impressive and seems to provide a good expectation about the fact that the way of law engaged by China, as a medium of transition, could avoid painful social crises.