ABSTRACT
In many respects, China is a transformed and still rapidly transforming society. The continuing changes in China have not, however, just been about economic development. There has been another quiet, peaceful and largely successful ‘revolution’ taking place in the area of law. Its defi ciencies though are as numerous as its achievements and progress. Until quite recently, law was seen as no more than a tool for social stability and economic development, with the rule of law struggling to fi nd its own virtue. In post-Mao China, this instrumentalist attitude towards law has largely defi ned the course for the development of law in general and civil and commercial law in particular. This is not to say that law in present-day China does not have its own life at all. Rather, without a clear understanding of the context in which Chinese law has developed over the past 30 years or so, one would most likely fi nd it extremely frustrating and perhaps become pessimistic in the face of confl icting rules, vague and ambiguous principles, and severe problems in legal implementation and enforcement, just to mention a few of the fl aws in Chinese law. This chapter thus intends to provide a brief introduction to the politicoeconomic context in which Chinese civil and commercial law has been developed in the post-Mao era. It is then followed by an examination of what I call foundational development in private law: impersonal treatment of legal actors (legal personality), freedom of contract, and the protection of private property. Developments in these three areas have established a foundation upon which law may gain its own life and rule of law may eventually take root in China.
