中國民商事法의 中國 特色과 世界化

• 영문명: A Study on the Chinese characteristics and internationalisation of civil and commercial law in China
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 이홍욱
• 간행물 정보: 『비교사법』비교사법 제10권 3호, 315~347쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.09.01

영문 초록

In the early period of 1980s, the good of the new Chinese government was a socialist legal system with Chinese characteristics and they expected that a legal system could provide the societal stability necessary for economic modernization. In other words, law is, to a large extent, to be used to generalise and institutionalise party and state economic reform policies and measures, they insisted on a 'native character' or 'Chinese characteristics'. Legislation, it was emphasised, must be based on Chinese reality but foreign experience must also be used as 'reference'. For convenience, this paper adopts three civil laws and three commercial laws of which are relatively important in 1980s and 1990s. The current Chinese legal system belongs to the socialist legal system, but it originated from the European Continental Roman Law tradition. The General principles of Civil Law(民法通則) was not exception to it, but has many problems because of enacting the situation of the socialist planned economic system. The Security Act(I995) reflects the influence of the Civil Law system and considered as a connection between the civil code(民法典) and "Sachenrecht"(物權法). The Uniform Contract Code(1999) also belongs to the Civil Law family but adopts rules from the Common Law system and the Vienna Sales Convention. Despite the ambiguous recognition of relevance of foreign law and international practice, law made in the 1980s -especially those regulating commercial transactions and economic relation ships- were distinctively Western in style, form, structure and language. The Equity and Cooperative Joint Venture Law(1979) and Foreign Economic Contract Law(1985) are just some of the examples which dearly reflect the influence of Western law. The adoption of the notion of a 'socialist market economy' has facilitated the further abandoning of the 'Chineseness' of Chinese law. The modern development of the market economy requires that the Chinese economy is part of, and competing in, the international market. To do so, all economic activities, domestic or international must he regulated in accordance with internationally accepted norms, customs, practices, and rules. The Chinese official organ for law making has explicitly endorsed bold adoption and direct legal trans plant of foreign laws. The Maritime Come(1992) was primarily composed of borrowing from international conventions and practice. Its adoption was also heralded as an excellent example for assimilating Chinese law with international practice, Many long awated codes, e.g. the Company Law(1993), the Insurance Law(1995) have been adopted. Speedy revisions and additions have also been made to existing laws which were deemed in consistent with international practice. The features of the Chinese civil and commercial law~ I think. will he changed from 'socialist market economy with Chinese characteristics' to only 'market economy' without socialist Chinese characteristics. Market economy and the internationaligation of Chinese civil and commercial laws will he closely connected with the process of economic development in China.

목차

1. 머릿말

2. 중국의 주요 민상사법

3. 중국 민상사법의 문제점

4. 중국민상사법의 세계화

5. 맺는말

참고문헌

ABSTRACT