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Legal Innovations in Asia

Legal Innovations in Asia

Judicial Lawmaking and the Influence of Comparative Law

Studies in Comparative Law and Legal Culture series

Edited by John O. Haley and Toshiko Takenaka

Legal Innovations in Asia explores how law in Asia has developed over time as a result of judicial interpretation and innovations drawn from the legal systems of foreign countries. Expert scholars from around the world offer a history of law in the region while also providing a wider context for present-day Asian law. The contributors share insightful perspectives on comparative law, the role of courts, legal transplants, intellectual property, Islamic law and other issues as they relate to the practice and study of law in Japan, China, Taiwan, Korea and Southeast Asia.

Chapter 4.3: Judicial innovation in Chinese corporate law

Donald Clarke

Subjects: law - academic, asian law, comparative law


What does “judicial innovation” mean in the Chinese context? In this chapter, I shall use the term to mean actions by courts to substantially modify substantive or procedural rules (generally set forth in a statute) that would otherwise apply, or to fill a vacuum by providing such substantive and procedural rules where they simply cannot be said to already exist. It is sometimes said that Chinese courts may not and do not innovate in this sense; that they are required to hew closely to statutory norms in deciding the cases before them. This view, owing more to ideology than to observation, has never really been tenable. First, Chinese courts, like other courts, sometimes simply must fill in gaps because they are required to decide a case one way or the other. At times they have done so quite creatively. Second, the Supreme People’s Court (the “SPC”), and to a lesser degree provincial-level courts, have a practice of issuing rules of general application both in the context of particular cases and, more importantly, in the abstract, untethered to any particular case. Whether the SPC and other courts should do this is debated in China; the point here, however, is that they do do it. These rules can be public or internal.

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