Judicial Lawmaking and the Influence of Comparative Law
Studies in Comparative Law and Legal Culture series
Edited by John O. Haley and Toshiko Takenaka
Chapter 4.3: Judicial innovation in Chinese corporate 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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