Abstract
Building on traditional classification systems proposed by Zweigert and Kötz, this paper presents insights from an East Asian perspective by elaborating on defining characteristics of law and order in Japan, Korea, Taiwan and China. While analyzing the mixed systems of the Far East, the fact is observed how—despite western legal implants—these nations reveal local roots traditionally derived from Confucian culture. Since Confucianism has long competed with legalist trends and recently reemerged as a multifaceted ideology, the discussion raises the question with regard to the meaning and significance of law itself, in particular the roles and functions that written codifications fulfill in Asian societies. Against this background, two specific features distinguish Japan, Korea and Taiwan from other legal systems: Firstly, the widespread practice of governmental paternalism through informal administrative guidance and secondly, the role of non-profit organizations (NPOs) as an innovative method for modern dispute resolution. The special case of China represents a sui generis category and is therefore discussed separately. Concluding with an overall evaluation of the East Asian experience in terms of legal transformation and adaptation, the authors summarize their findings under the key concept of “dynamic dualism”, thus evidencing how bridging traditional Eastern cultures and western legal concepts remains a continuous challenge.
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Notes
- 1.
See e.g. Yeong-chin Su, Codification of Civil Law in East Asia—A General Report, in The 2012 International Congress of Comparative Law 1–4 (2012) [hereinafter Su].
- 2.
See e.g. Zentaro Kitagawa, Development of Comparative Law in East Asia, in the oxford handbook of comparative law 237, 242–244 (Mathias Reimann & Reinhard Zimmermann eds., 2008) [hereinafter Kitagawa], noting that “(a)fter the Sino-Japanese War (1894–5) … Japan became the dominant military and economic force in the region” and “in the first half of the twentieth century transmitted German law and legal theory to the leading countries in the region.” See also Curtis J. Milhaupt, Nonprofit Organizations as Investor Protection: Economic Theory and Evidence from East Asia, 29 Yale J. Int’l L. 169, 186–187 (2004) [hereinafter Milhaupt, Nonprofit Organizations], explaining why Japan, Korea and Taiwan share a “common legal tradition”.
- 3.
See e.g. Kitagawa 242, noting that after World War II US-American influence formed “an additional layer of reception on top of the German and French ingredients.”
- 4.
See e.g. Konrad zweigert & hein kötz, einführung in die rechtsvergleichung 289 (3rd ed. 1996) [hereinafter Zweigert & Kötz], pointing out the early influences of Chinese culture, religion, writings and codifications on Japan and other Asian countries.
- 5.
See Zweigert & Kötz 281, emphasizing that within the Far Eastern legal system a basic distinction must be made between a socialist party-controlled China on the one side and other highly western-oriented, democratic nations such as Japan. See also Su 18, pointing out the “striking contrast” between “legal formalism” in Capitalist East Asia and “legal realism” in China.
- 6.
See e.g. Dai-Kwon Choi, Western Law in a Traditional Society Korea, in Comparative Legal Cultures 249 (Csaba Varga ed., 1992), noting that “(t)raditional Korean culture was greatly influenced by two thousand years of Confucian teachings”; Hwa-Jin Kim, A tale of three companies: The emerging market for corporate control in Korea, in transforming corporate governance in east asia 71, 84 (Curtis Milhaupt et al. eds., 2008), referring to Korea as an “Asian civil law country under Confucian culture”.
- 7.
See e.g. Chin Kim & Craig M. Lawson, The Law of the Subtle Mind: The Traditional Japanese Conception of Law, 28 Intʼl & Comp. L.Q. 491, 494 (1979), noting that “Chinese Confucianism stands out as the single most important intellectual influence on traditional Japanese thought.” See also Zweigert & Kötz 290, referring to Confucianism as the type of social philosophy that best describes Japanese society during the Tokugawa period.
- 8.
See e.g. H. Patrick Glenn, legal tradition of the world 310–311 (3rd ed., 2007) [hereinafter Glenn], noting that the influence of Confucian teaching “has perhaps been greatest in Korea and Japan”; Yi-Huan Jiang, Confucianism and East Asian Public Philosophy: An Analysis of “Harmonize but Not Conform”, in The 68th Public Philosophy Kyoto Forum UNESCO International Conference “Co-constructing A Public Philosophy for Harmony and Reconciliation for 21st Century East Asia” 9 (2006), available at http://homepage.ntu.edu.tw/~jiang/PDF/D11.pdf (last accessed 30 January 2013) [hereinafter Jiang], pointing out that “Confucianism is undoubtedly the cultural heritage that all East Asian countries share. No other cultural tradition … has the same degree of influence as Confucianism”; Berkley Center for Religion, Peace & World Affairs, Georgetown University, Resources on Faith, Ethics and Public Life, Confucianism, at http://berkleycenter.georgetown.edu/resources/essays/confucianism?language=chinese (last accessed 30 January 2013), noting that the teachings of Confucius “became a pillar of Chinese culture and politics, as well as a formative influence throughout East Asia”; ibid, Demographics of Confucianism, at http://berkleycenter.georgetown.edu/resources/essays/demographics-of-confucianism?language=chinese (last accessed 30 January 2013), describing Confucianism as “a powerful social, cultural, and religious influence for hundreds of millions across East Asia. For most of Chinese history, Confucianism has been the official ideology of the Chinese state; it has spread along with other elements of Chinese culture to other nations, including Japan, Korea …, taking on diverse national and local forms.”
- 9.
See Glenn 304, referring to Confucianism as “the greatest traditional source of normativity in Asia … which seeks primarily to persuade and not to oblige.”
- 10.
The equivalent Chinese term “fa” in the sense of formal legal sanctions did exist even before Confucianism, but most of the time it “played a subordinate role” and was more or less confined to the fields of criminal and administrative law; see Glenn 306–309.
- 11.
See e.g. James V. Feinermann, Introduction to Asian Law Systems, in introduction to foreign legal systems 95, 100–101 (Richard A. Danner & Marie-Louise H. Bernal eds., 1994) [hereinafter Feinermann], noting that “(t)hroughout Chinese history, Confucian and Legalist bases for law have been in contention: the essentially moral norms of Confucianism seeking to establish their superiority to the bureaucratic mechanisms of Legalism. In actuality, a long process of synthesis combined these twin strands to create a unique Chinese conception of legality.” See also Glenn 313, pointing out that from a western perspective “the opposition between confucian li and legalist fa (.) appears most evident, an opposition thrown in a greater relief … by importation of different varieties—both capitalist and communist—of western law.”
- 12.
See e.g. Werner Menski, comparative law in a global context: the legal systems of asia and Africa 590 (2nd ed. 2006) [hereinafter Menski], noting that “post-Maoist China has embarked on a silent socialization of Confucianism or, put the other way round, a quiet re-confucianisation of Chinese socialism in the shadow of multiple revolutions”; Glenn 333, noting that “since the late 1970s there has been re-emergence of traditional Chinese teaching, still within a cadre of communist government. Confucianism, if not explicitly resurrected, has become an ally in the effort to generate loyalty and preserve structures”; Sébastien Billioud, A “Revival” of Confucianism in China Today? (March 2011), http://www.reseau-asie.com/edito-en/revival-confuciasnim-china-billioud/ (last accessed 30 January 2013), citing various historical, sociological and ideological reasons “to explain this Confucian revival”. For a discussion on the “prospects of Confucianism and of liberal democracy in China”, see Chen, Albert H. Y., Three Political Confucianisms and Half a Century, 1 (March 22, 2009), available at SSRN: http://ssrn.com/abstract=1366582 (last accessed 30 January 2013).
- 13.
See e.g. Zweigert & Kötz 280, pointing out that the role of law as a means of regulating human society is one of the characteristic criteria, which distinguish Far Eastern legal systems; Curtis J. Milhaupt, Beyond Legal Origin: Rethinking Law’s Relationship to the Economy—Implications for Policy, Am. J. Comp. L. 831 (2009) [hereinafter Milhaupt, Legal Origin], noting that “legal systems around the world differ significantly along two crucial organizational dimensions: their degree of centralization of the lawmaking and enforcement processes, and the primary function law serves in support of market activity, ranging from protective to coordinative functions.”
- 14.
See Jiunn-Rong Yeh & Wen-Chen Chang, The Emergence of East Asian Constitutionalism: Features in Comparison, 59 Am. J. Comp. L. 805, 816 (2011).
- 15.
Feinermann 101, referring to the tradition of promulgating dynastic codes in China as a means for establishing political legitimacy.
- 16.
See Kevin Y. L. Tan, The Role of Public Law in a Developing Asia, Singapore Journal of Legal Studies 265, 275 (2004) [hereinafter Tan], referring to an “Asian positivist tendency towards rule by law rather than the rule of law”. See also Glenn 308, referring to the Ch’in empire as an example for rule by law, where “(l)aw was seen here not as a means of regulations of private, economic activity, nor as a means of upholding religious values, but rather as an instrument of politics and public order.”
- 17.
See e.g. Zweigert & Kötz 288, questioning whether the vast numbers of laws that have been enacted in China have real impacts on human conduct and are being effective applied by administrative authorities and courts.
- 18.
See e.g. Zweigert & Kötz 294, noting that in Japan newly adopted legislations remained extremely unpopular until the twentieth century due to deeply rooted Confucian traditions; Kitagawa 246, emphasizing that an analysis of the Japanese system “must take their pluralism into account and look at them as combining Western and traditional elements. It must recognize that the two elements supplement each other and that traditional norms can, indeed, sometimes even override the more official, Western, side of the law.”
- 19.
See Glenn 309, noting that “Chinese society thus became a combination of stick and carrot, the stick always available but the carrot enjoying the theoretical advantage.”
- 20.
See e.g. Katharina Pistor & Philip A. Wellons, The Role of Law and Legal Institutions in Asian Economic Development 1960–1995, at 4 (1999); Randall Peerenboom, Law and Development of Constitutional Democracy in China: Problem or Paradigm, 19 Colum. J. Asian L. 185, 195–196 (2005).
- 21.
See Tom Ginsburg, Dismantling the “Developmental State”? Administrative Procedure Reform in Japan and Korea, 49 Am. J. Comp. L. 585, 585–587 (2001).
- 22.
Ibid 593, noting that “(a) company that disobeys a ministerial ‘suggestion’ to join a voluntary export agreement … may find itself without a crucial permit for a domestic factory some months later.”
- 23.
Article 35 (2) of the Japanese Administrative Procedure Law stipulates: “Where Administrative Guidance is rendered orally, the person imposing the Administrative Guidance in question shall, if so requested by the subject party, provide the matters prescribed in the preceding paragraph in writing, so long as no extraordinary administrative inconvenience arises thereby.”
- 24.
Article 32 (2) of the Japanese Administrative Procedure Law stipulates: “Persons imposing Administrative Guidance shall not treat the subject party of Administrative Guidance disadvantageously owing to the subject party’s non-compliance with the Administrative Guidance in question.”
- 25.
See e.g. John Ohnesorge, Chinese Administrative Law in the Northeast Asian Mirror, 16 Transnat’l L. & Contemp. Probs. 103, 126 (2006) [hereinafter Ohnesorge].
- 26.
Similar litigation models exist in the fields of consumer protection; see Lawrence S. Liu, The politics of corporate governance in Taiwan, in transforming corporate governance in east asia 255, 272 (Curtis Milhaupt et al. eds., 2008).
- 27.
See Milhaupt, Nonprofit Organizations 169 n. 3, referring to the “common definition of an NPO” as “an organization (formal or informal) that is private, self-governing, not profit-distributing, and voluntary.”
- 28.
See e.g. Milhaupt, Nonprofit Organizations 172, pointing out that “investor protection … is a public good …demand for investor protection and “good” corporate governance has grown rapidly in the region as a result of the Asian financial crisis, domestic corporate scandals, and persistent economic malaise”.
- 29.
See e.g. Ok-Rial Song, Improving corporate governance through litigation, in transforming corporate governance in east asia 91, 92 (Curtis Milhaupt et al. eds., 2008); Milhaupt, Nonprofit Organizations 175, noting that “(l)egally, it is a nonprofit organization registered with the Seoul Metropolitan government.”
- 30.
Founded in 1994 under the name “Citizens’ Solidarity for Participatory Democracy and Human Rights” this NGO pursues “the mission of ‘participation, solidarity, watchdog, alternative’”; see http://en.wikipedia.org/wiki/People%E2 %80 %99s_Solidarity_for_Participatory_Democracy (last accessed 29 January 2013).
- 31.
See http://en.wikipedia.org/wiki/People%E2 %80 %99s_Solidarity_for_Participatory_Democracy_(last accessed 29 January 2013), noting that “(a)s of July 2012, around 13,000 individuals are members of PSPD.”
- 32.
See e.g. Michael Klausner, The uncertain value of shareholders suits in Asian corporate governance, in transforming corporate governance in east asia 324, 326 (Curtis J. Milhaupt et al. eds., 2008), describing PSPD as “a nonprofit corporate governance advocate”; Jooyoung Kim & Joongi Kim, A Review of How PSPD Has Used Legal Measures to Strengthen Korean Corporate Governance, http://www.peoplepower21.org/English/37847 (last accessed 29 January 2013), noting that “in Korea, shareholder activism was nonexistent until it was initiated in 1997 by the Peoples Solidarity for Participatory Democracy (PSPD). More specifically the Participatory Economy Committee within PSPD is in charge of these activities.”
- 33.
Ibid.
- 34.
See Milhaupt, Nonprofit Organizations 179 n. 46, noting that the Shareholder Ombudsman applied for NPO status in accordance with a newly enacted “Law to Promote Specified Nonprofit Activities, Law No. 7 of 1998, arts. 1, 2 (1998)”.
- 35.
See Koji Morioka, About Kabunushi (Shareholders) Ombudsman: Its Goals and Activities, http://www.kabuombu.sakura.ne.jp/archives/english-02.htm (last accessed 29 January 2013), noting that “Kabunushi Ombudsman (KO) was founded in Osaka on January 8, 1996. It is a nonprofit organization” and “the first civic shareholdersʼ group organized to keep watch on the activities of businesses in Japan.”
- 36.
Ibid, referring to corporate cases involving political donations, gender equality, employment of disabled workers, auditing companies, food safety.
- 37.
See Wallace Wen-Yeu Wang & Jian-Lin Chen, Reforming China’s Securities Civil Actions: Lessons from USA PSLRA Reform in the U.S. and Government-Sanctioned Non-Profit Enforcement in Taiwan, 21 Colum. J. Asian L. 115, 145 (2008).
- 38.
See its official homepage at http://www.sfipc.org.tw/english/about/01.asp (last accessed 29 January 2013).
- 39.
The “Securities Investor and Futures Trader Protection Act” [hereinafter SIFTP Act] was adopted and promulgated on 17 July 2002 and became effective on 1 January 2003. It was last amended on 20 May 2009 and is available at http://eng.selaw.com.tw/FLAWDAT0202.asp (last accessed 29 January 2013).
- 40.
Article 22 SIFTP Act stipulates that “the securities investor or futures trader may apply to the protection institution for mediation.”
- 41.
According to Article 28 SIFTP Act “(f)or protection of the public interest, within the scope of this Act and its articles of incorporation, the protection institution may submit a matter to arbitration or institute an action in its own name with respect to a securities or futures matter arising from a single cause that is injurious to multiple securities investors or futures traders, after having been so empowered by not less than 20 securities investors or futures traders”.
- 42.
See Milhaupt, Nonprofit Organizations 172 n. 36, expressly affirming that the conditions for an NPO are met despite “close connections” with the government.
- 43.
See Articles 34–36 SIFTP Act.
- 44.
According to Article 33 SIFTP Act the protection institution shall compensate the securities investors or futures traders after deducting its procedural expenses. However, “(t)he protection institution is not entitled to seek remuneration for itself.”
- 45.
According to Article 2 of the “Regulations Governing the Securities Investor and Futures Trader Protection Institution” the protection institute shall apply “to a court for registration as a foundation”.
- 46.
See Article 7 SIFTP Act.
- 47.
See Articles 3 and 8 SIFTP Act.
- 48.
See Article 11 SIFTP Act.
- 49.
See Article 20 paragraph 4 SIFTP Act, authorizing the competent authority to approve “(o)ther uses” of the protection fund.
- 50.
See Article 16 SIFTP Act.
- 51.
Based on Article 39 SIFTP Act the competent authority may order the discharge of personnel at various levels, including directors, supervisors, managers, employees or mediation committee members.
- 52.
According to Article 40 SIFTP Act the competent authority is under certain circumstances authorized to impose sanctions in form of administrative fines and order compliances.
- 53.
See Milhaupt, Nonprofit Organizations 172, noting that “government-NPO partnerships have the potential to supplement weak state enforcement of corporate and securities laws.”
- 54.
See Wang Ruu Tseng & Wallace Wen Yeu Wang, Derivative actions in Taiwan: legal and cultural hurdles with a glimmer of hope for the future, in the derivative action in asia 215, 240–241 (Dan W. Puchniak et al. eds., 2012) [hereinafter Tseng & Wang], with reference to a “paternalistic nature of Taiwan’s administrative and regulatory sanctions”.
- 55.
See Ronald J. Gilson & Curtis J. Milhaupt, Economically Benevolent Dictators: Lessons for Developing Democracies, 59 Am. J. Comp. L. 227, 280 (2011) [hereinafter Gilson & Milhaupt], agreeing that “creative partnerships between the government and nonprofit organizations to encourage better enforcement of law seems a good deal more feasible than transplanting procedural mechanisms such as class action litigation from other countries onto a judicial process that is still far from mature.” See also Tseng & Wang 240, underscoring the fact that the Taiwanese NPO model stands “in marked contrast to the private securities actions which characterize US securities law and is distinct from the heavy reliance of mainland China on administrative regulatory authorities.”
- 56.
See Milhaupt, Nonprofit Organizations 182–183, 200.
- 57.
See Zweigert & Kötz 281.
- 58.
See Li-Wen Lin & Curtis J. Milhaupt, We are the (National) Champions: Understanding the Mechanisms of State Capitalism in China, Columbia Law and Economics Working Paper No. 409, 1 (November 1, 2011), available at http://ssrn.com/abstract=1952623 (last accessed 11 February 2013), referring to “the central role of about 100 large, state-owned enterprises (SOEs) controlled by organs of the national government in critical industries such as steel, telecom, and transportation.”
- 59.
See e.g. Gilson & Milhaupt 271, pointing out that “neutrality of the courts cannot be assumed. And political considerations remain above the law.”
- 60.
See Ohnesorge 103.
- 61.
See He Xin, Administrative Law as a Mechanism for Political Control in Contemporary China, in Building Constitutionalism in China 143 (Stephanie Balme & Michael W. Dowdle eds., 2009).
- 62.
See Nicholas Calcina Howson, Enforcement without Foundation?—Insider Trading and China’s Administrative Crisis, paper presented at the Commercial Law Forum—12th International Symposium 2012, China, Beijing, 481–528.
- 63.
Yiyi Lu, Non-Governmental Organizations in China, 108 Routledge (2009).
- 64.
See in this context Tan 285, noting that “Asian and western legal systems are increasingly converging for several reasons”. See also Jiang 10, proposing to “reexamine the Confucian traditions with the attitude of ‘creative transformation’”.
- 65.
See e.g. Menski 564, describing how in the case of Republican China “a series of comprehensive codes”—that eventually became the basis of the Taiwanese legal system—was “really an amalgam of different legal systems and norms … partly based on European continental laws, especially from Germany, Japan and Switzerland, with some elements of Anglo-American laws, to some extent still relying on the legal traditions of the late Ch’ing and warlord periods.”
- 66.
See e.g. Kitagawa 251, emphasizing the importance “not to conceive of traditional norms as a negation of, or as a substitute for, Western legal elements but rather to understand the interplay between both sides. … Modern Japanese law provides an example of a pluralistic legal model since it operates within an imported Western framework while also resorting to more traditional norms and methods.”
- 67.
See e.g. Tan 268, noting that “most of Asia’s legal systems are adopted and hybridized versions of the two main western legal systems: common law and civil law”.
- 68.
See e.g. Menski 532, characterizing the “system of law in imperial China as a hybrid of Legalism and Confucianism, which retained the penal orientation of the legalists and some elements of the harshness of the law, but adopted from Confucianism the hierarchical structuring of society and the idealist approach that harmonious functioning of all components at their respective different levels should be encouraged to form an ordered whole”; ibid 585, referring to “the old Confucian idealistic division of legal labour between informal social justice and formal imperial code” as “the old model of ‘confucianisation of the law’.”
- 69.
See e.g. Milhaupt, Nonprofit Organizations 200–201, arguing that notwithstanding functional divergence towards the common objective of investor protection “Japan, Korea, and Taiwan display striking diversity … this diversity can be traced to the distinctive legal, political, and social environments.” See also Jiang 21, finding “that Confucian concept of ‘harmonize but not conform; association but no clique’ is a reasonable principle”.
- 70.
See Gilson & Milhaupt 269.
- 71.
See above discussion regarding NPOs in Taiwan (Chap. 1.3.2).
- 72.
See e.g. Zweigert & Kötz 292, observing that Japanese jurisprudence has “emancipated” itself from foreign models and developed increasing independence in recent years; Glenn 339, referring to “easternization” as a trend where “Asian representatives are now declaring that ‘Asia can say no’ to various forms of ‘western predatory imperialism’ and western ‘hyperindividualism.’”
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Wang, WY., Agnes Chiu, YL. (2014). The Defining Characteristics of the Legal Family in East Asia. In: Wang, WY. (eds) Codification in East Asia. Ius Comparatum - Global Studies in Comparative Law, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-03446-1_1
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