中国经济发展中法律与法律机构的作用 1978-1995PDF电子书下载

PART Ⅰ OVERVIEW:PATTERNS OF CHANGE IN CHINA'S LEGAL SYSTEM AND SOCIO-ECONOMY 1

Table of Contents 1

1．The Legal System of China as of 1960:Background 1

Types of Legal System 1

Typology of Substantive Economic Laws 8

Legal Institutions and Process 11

Legal Profession 19

Sources of Law 21

Public Attitude Towards the Legal System 22

2．The Major Changes in China's Legal System 1978—1995 22

Types of Legal System 24

The Major Substantive Laws Affecting the Economy 25

A Quantitative Assessment for the General Patterns Between the Enactment of Laws and That of Policies 32

Legal Institutions and Process 33

Legal Profession 43

Sources of Law 47

Public Attitude Towards the Legal System 48

3．Chinese Economy in 1960,1978 and its Growth to 1995 50

Economic Situation Under the Central Planning System,1960—1978 51

Reform,Opening,and Growth During 1978—1995 59

4．The Relation of Changes in China's Legal System to Economic Development 82

PART Ⅱ BUSINESS GOVERNANCE AND CAPITAL FORMATION 88

1．The Relative Size of the Private Corporate Sector as Compared to the Un-incorporated(formal and informal)Private Sector and the State Enterprise Sector Correlates Positively with the Size and Complexity of the Economy 88

2．The Degree of Capital Formation in the Corporate Sector Changes in Relation to Changes in the Cost of Using the Corporate Form 95

3．The Relative Size of the State Enterprise Sector is Independent of the Availability of the Corporate Form,and the Number of Incorporated State Enterprises does not Correlate with Legal Changes that Lower the Cost of Establishing and Using the Corporate Form 114

4．The Liberalization of the Legal Framework for Raising Equity Finance Correlates Positively with Higher Growth Rates of the Corporate Sector 117

5．The Corporate Sector,Which is Organized as Joint Stock Companies Relative to Other Private Companies,Positively Correlates with the Degree of Shareholder Protection Offered by Law 131

6．The Growth of the Formal Private Sector Correlates Positively with the Deregulation of Real-estate Markets 135

PART Ⅲ THE RELATION BETWEEN CREDIT AND LAWS GOVERNING SECURITY INTEREST 135

1．The Level of Lending by Financial Intermediaries to Borrowers in the Private Sector Correlates Positively with the Availability of Security Interests Provided by Law 149

Security Law 149

Laws and Regulations Pertaining to Personal Guarantee 149

Acquisition of a Guarantee 150

Realization of Guarantee 151

Mortgage 153

Acquisition of Mortgage 155

Mortgage Registration Organizations 157

Pledging 158

Acquisition of a Pledge 159

2．Difficulties in Enforcing Security Interest Correlates Inversely with the Volume of Private Lending to the Private Sector 160

Enterprise Bankruptcy 160

Cost of the Availability of Security Interests Provided by Law 162

Evolution of the Legal System on the Implementation of Security Rights and its Present Situation 164

Creditor's Right for Applying for Bankruptcy 166

3．Lending Institutions with a Relatively High Proportion of Unsecured Loans,Perhaps due to High Relational Lending or State Mandated Lending,are more likely to Incur Serious Loan Losses than Banks with a High Proportion of Secured Lending 167

Shortage of Legal Regulations 167

Conflict Within Laws 168

Problems of Law Enforcement 169

Administrative Interference 170

Other Factors for Holding up the Circulation of Financial Credit Funds 172

PART Ⅳ THE SETTLING OF COMMERCIAL AND ADMINISTRATIVE DISPUTES 174

1．The Growing Division of Labor in Society will Enhance the Role of Formal Dispute Settlement Institutions with the Power to Enforce Commercial Disputes Among Previously Unrelated Parties 174

The Changes in the Division of Labor in China from 1978 to 1995 174

The Establishment and Tasks of Economic Judicial Organizations 181

Quantity and Types of Cases 182

Foreign Related and Taiwan,Macao and Hong Kong Related Economic Disputes 187

Establishment and Tasks for Tribunals of Trans-portation and Maritime Affairs 190

Establishment and Development of Economic and Trade Arbitration Boards 192

Types of Filed Cases 195

Seeking Professional Advice 196

Enforcement of Arbitration Rulings 196

Maritime Arbitration 196

Restructuring of Arbitration Commission 197

Mediations Institutions 199

2．With Economic Development,the Number of Legal Disputes over Tangible and Intangible Property Rights has Increased 199

Real Estate 199

Intellectual Property Rights(IPR) 201

3．Economic Development Correlates Positively with the Creation of Institutions or Procedures that Allow Private Parties Recourse to Independent Arbitrators Against Actions by the State that Affect the Legal Rights 206

Scope and Procedures of Administrative Litigation 210

Review Procedures 214

Judicial Review 215

Scope and Procedures for Arbitration Institutions 216

Legal Status of the Administrative Judges 216

Legal Requirements for Arbitrator 217