The Transformation of Chinese Law: From Formal to Substantial

Chen, Jianfu

doi:10.2139/ssrn.2752224

Cited by 6 publications

(7 citation statements)

References 18 publications

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“…To keep pace with the rapid economic transformation in China, the development of Chinese corporate governance law became largely a process of borrowing foreign experiences. Foreign laws became an indispensable part of the legal infrastructure of Chinese corporate governance, and the Anglo-American corporate governance model has been held up as the governance paradigm in China (J. Chen, 2007; J.…”

Section: Theoretical Foundationsmentioning

confidence: 99%

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Alternative Governance and Corporate Financial Fraud in Transition Economies: Evidence From China

Yiu

Wan

2018

Journal of Management

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How corporate governance mechanisms function in transition economies is a key topic for corporate governance researchers and policy makers. We propose that alternative governance mechanisms are in place to mitigate corporate fraudulent behaviors in the fluid state of transition economies where the establishment and enforcement of corporate governance legislation are presently insufficient. Drawing on the twin set of institutional logics—the institutional embeddedness logic and the institutional substitution logic—we posit that three salient types of prevailing alternative governance mechanisms (relational, administrative, and foreign governance) play important roles in transition economies because they are complementary to the institutional conditions at the time of the transition process. Conducting a bivariate probit analysis of a matched sample of corporate financial fraud cases in China, we find that strategic alliances, business group affiliation, nontradable state shares, local government ownership, use of foreign auditors, and foreign listing can deter corporate financial fraud, while foreign listing is also effective in detecting fraud. We also find that the deterrence effects of strategic alliances and business group affiliation become weaker as law development improves, while foreign listing and legal governance are completely substitutive. Our study provides a contextualized view of corporate governance that connects its effectiveness with institutionalization and the institutional state of a country. Our study also enriches our understanding of some unfamiliar forms of governance mechanisms that are in place and complementary to a country’s institutional conditions.

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Section: Theoretical Foundationsmentioning

confidence: 99%

“…Foreign laws became an indispensable part of the legal infrastructure of Chinese corporate governance, and the Anglo-American corporate governance model has been held up as the governance paradigm in China (J. Chen, 2007;J. Chen, Cumming, Hou, & Lee, 2016;Wei, 2003).…”

Section: Corporate Governance Development and Corporate Financial Framentioning

confidence: 99%

Alternative Governance and Corporate Financial Fraud in Transition Economies: Evidence From China

Yiu

Wan

2018

Journal of Management

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“…After this episode, the development of law once again enjoyed a rapid growth (Chen, 2007: 692), and in the light of economic development significantly improved in the 1990s. Among the major improvements was that citizens, as well as party members and government officials, became principally equal before the law.…”

Section: Law In the Chinese Traditionmentioning

confidence: 99%

“…The revival also embraced the elevation of law as providing external, legal constraints on the abuse of power in case morality fails. Jiang Zemin, former President (1993–2003), explicitly called for the complement of law and morality, uniting them with the rule of morality as statecraft for the purpose of ‘ruling the country according to law’ (Chen, 2007: 724).…”

Section: Law In the Chinese Traditionmentioning

confidence: 99%

Against the rule of man: the Confucian and Western traditions of good administration

Yang

Rutgers

2016

International Review of Administrative Sciences

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This article investigates the Confucian and Western traditions specifically with regard to the relation between morality, law and good administration. It is argued that the common opposition between the rule of man and the rule of law as reflecting the basic difference between the two traditions is inadequate. Confucianism can be better characterized positively as the rule of morality. It should also be noticed that 'the rule of law' is increasingly being introduced into the Chinese administration. Similarly, even though the Western tradition can be summarized in terms of the rule of law, it is acknowledged that 'the rule of man' cannot be avoided, and that morality is important. Both traditions oppose the rule of man, in as far as it refers to someone acting out his selfish preferences. It is concluded that good administration requires officials with both good morality and respect for the law; whether this is a kind of convergence is a matter of debate. Points for practitionersThis article studies Confucian and Western administrative traditions in relation to the notion of good administration. It is argued that the common characterization and understanding of the Confucian tradition in terms of the Western reviled 'rule of man' is misguided. Rather than understanding the positive moral connotations of the Confucian good administrator it associates them with a specific negative notion; at the same time, overstressing the Western 'rule of law' may obscure the need for moral persons for good administration.

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“…While legal modernisation and development reached their first peak during Kuomintang (KMT; also referred to as Guomindang or the Nationalist Party) rule, when the ‘Six Codes’ were promulgated and a continental European style of adjudication was established, the present legal system in China is largely a product of the post-Mao policies for ‘Reform and Opening Up’. These policies and their implementation, which initially started in 1978, have now transformed China as a society, an economy and a legal system (for a summary study, see Chen (2007)). In dispute resolution, the long-held belief that the Chinese are a conflict-averting people – by nature or because of cultural influences – who look to traditional methods of mediation or other non-confrontational means to resolve disputes is increasingly questionable.…”

Section: Introductionmentioning

confidence: 99%

From alternative dispute resolution to pluralist dispute resolution: towards an integrated dispute-resolution mechanism in China

Wang

Chen

2020

International Journal of Law in Context

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Since 1978, we have observed the steady development of institutions, mechanisms and processes of dispute resolution in China. In the last ten years or so, we then noted frequent issuance of new rules and measures as well as revision of existing laws, the promotion of mediation as the preferred method for resolving disputes and, more recently, the promotion of an integrated dispute-resolution system as a national strategy for comprehensive social control (as well as for resolving disputes), in the name of reforming and strengthening ‘the Mechanism for Pluralist Dispute Resolution’. Careful examination of these latest developments suggests that fundamental changes are taking place that may potentially alter the course of the development of the Chinese dispute-resolution system. These developments are the focus of this paper with an aim to ascertain the nature of the developments and their future direction or directions.

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The Transformation of Chinese Law: From Formal to Substantial

Cited by 6 publications

References 18 publications

Alternative Governance and Corporate Financial Fraud in Transition Economies: Evidence From China

Alternative Governance and Corporate Financial Fraud in Transition Economies: Evidence From China

Against the rule of man: the Confucian and Western traditions of good administration

From alternative dispute resolution to pluralist dispute resolution: towards an integrated dispute-resolution mechanism in China

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