'Rule of Law' in China: The Confrontation of Formal Law with Cultural Norms

摘要

The movement to a third generation of modern Chinese contract law has begun with the enactment of the introductory part of what is expected to be a Chinese Civil Code. The 2017 General Rules of the Civil Law of the People's Republic of China (General Rules) provides the framework for a full-fledged Western-style civil code. The focus of this Article is on the general principles provided in the 1999 Chinese Contract Law (CCL) and the General Rules. The comparison reveals that cultural norms, as espoused in Confucian values, and socialistic principles, carried over from the era of the Communist planned economy continue to influence Chinese civil law. It is this normative structure and other extralegal influences, such as the dominant roles played by the Communist Party and its policies, which differentiate the Chinese view of the rule of law with its Western conception. These cultural influences play a crucial role in the interpretation and application of Western legal concepts embedded in modern Chinese contract law. Based on China's Confucian-Socialistic value structure, which focuses on the value of the collective over the individual and relational structures over formal law, the duty of good faith has become a meta-prin-ciple in Chinese jurisprudence. Application of transplanted legal concepts, such as the principle of good faith, in Chinese law shows how the application of law necessarily depends on the interrelationship between the legal, cultural, political, and economic dimensions of society.