Chamber Of Commerce Legal System

Chamber of commerce in China played a great role as the useful tool of promoting aswell as protecting the Commerce a century ago, and recently its unique value re-attractspeople's attention especially under the global economical background. It goes withoutsaying that renewal and development of C of C needs a consummate legal system, becausenot only the abstract theory study but the specific institutional design in this field are prettydeficient exactly. The paper intents to make the value of self-regulation, the essence valueof C of C, as the theme of paper. On the basic of analyzing the essence and functions of Cof C, probing into its history of evolvement, and the basic of referring to other legalsystems as well as China previous system comparatively, the paper focuses on the property,origin, specific content and force range of the self-regulation, the organization system andgovernance framework, supervision and management of Chamber. By the channel ofreviewing recent legislations, the paper tries to analyze the genuine cause ofunderdevelopment of Chamber and the deficiency of Corresponding legislations in China,so as to put forward the novel design of future legal system of Chamber considerably.The paper consists of six charters in the text, expect introduction part as the first partand conclusion part.The first part introduces the cause of writing, the orientation of object, the organizationand innovation of paper.The first charter of text focuses on the legal property of Chamber and itscharacteristics from the prospective of various subjects. On the basic of background ofcoming into being, the paper put more attentions to its dominant functions such as theeconomic function, the democratic function and the function of making law.From the perspective of comparing the contemporaneity and the asynchronism of itslegal system, the second charter tries to find out the evolutional history of Chamber all overthe world, so as to assume its following development in China to a considerable extent.The third charter details on the rationality, essence, origin of its self-regulation, andfurthermore, the special relationship with government power, the specific content as well asits force rang.The fourth charter focuses on the organization system as well as interior governancestructure of Chamber, including the cause of interior governance, the setup oforganizational department, the distribution of powers, decision-making, significantinspiration and supervision mechanism. The fifth charter analyzes the limitation of self-regulation, the need of supervision andspecific measures taking by the authority, whose supervision should be limited definitely soas to ensure the genuine self-regulation of Chamber exactly.The sixth charter tries to probe into the real cause of underdevelopment of ourChamber and deficiency of legislation, and tents to put forward a sort of novel design ofour legal system for Chamber considerably.The conclusion part emphasizes self-regulation is the soul of Chamber, and should beconsidered the value orientation of legal system of Chamber.â… The property of Chamber invokes various disputes in the field, and the significanttheories standing for the majority as follow. The C of C (a) is a sort of private ordersystematically, which takes a role as supplementary part of public order constructed bymany regulations such as law especially. (b) owns the dual-properties, that is, theclub-pattern organization and the deputy who should be confirmed by the specificrelationship with government and enterprise. (c) is a kind of nonprofit association whichcould offer public goods effectively. From the distinct perspectives, theories hereof come tothe common point, namely, C of C is a sort of nonprofit association with common specialinterest, and as an endogentic self-discipline organization, C of C stands for an efficientmode of market-oriented manage mechanism. Undoubtedly, Chamber bears properties ofnonprofitness, mutually-benefiting and self-discipline which is reckoned as the essence ofC&C greatly. A majority of countries in the world confirm it as a fictitious person in thelegislation, though there are various orientations under distinct legislative backgroundsrespectively. The author here insists on the viewpoint that Chamber is a nonprofitassociation who doesn't stand for public interest to some extent, namely, a medi-fictitiousperson.The theories concerning origin of Chamber include the theory of the third path, theoryof civil society, and theory of governance. As for theory of the third path, C of C is deemedas the third path to remedy the malfunction of market and government, mainly due to itspredominant functions of self-organization as a medi-organization socially. In detail, C of Ccould regulate the market practice and maintain the current market order. Furthermore, it iscapable of promoting the communication between government and corporations in order tolessen social contradiction effectively. The theory of civil society nevertheless persists thatbounder of country and society becomes unclear again following the development ofcivilization recently. Therefore, as for country and society, the relationship of cooperation and mutual-remedy should be up-built in a great degree because of interlacement andmutual-remedy of functions for each other. Normally, the relationship hereof should beachieved by the voluntary association, the structural factors of civil society, such asChamber who has been considered as one of significant economic associations inmarker-oriented economy. The advocate of governance theory resist that governmentshould play as the collaborator, promoter as well as catalyzer for the development ofeconomy and society, in order to control current economic society rationally. In other words,the government should transfer the regulation authority to market authentically, and takefeasible measures to influence the private corporations to gain the ends of optimalcombination functionally.The dominating functions of Chamber include economic function, democratic functionand function of making law. As for economic function, the specific forms containinformation storeroom, organizing collective action, protecting the market order byself-discipline. The democratic function enables Chamber to promote the policy of theauthority becoming more open and democratic, because it has been deemed as thedemocratic school and the association with capacity of restricting powers. For its thirdfunction, the autonomic rules of Chamber could be the origin and significant remedy offormal statute.â…¡As for the west, the organization and legal system of Chamber developed through twoperiods, namely, guild period and chamber period, both of which were the given outcomefollowing the development of current commodity economy. From the perspective ofevolutional history, the self-regulation was primary representation and mainstream ofChamber, and also stands for the aim of future development and the dominating orientationof its value. During the guild period, the legal status and privilege of guild was authorizedby special charter from laird, and the interior relationship was legalized by guild rules.Following the built of unified nation, the west nations tent to enact Chamber Act to regulatepractice of Chamber. Due to distinct policy, economy, the background of culture and theevolutional path of modern Chamber, various countries own different legal systems ofChamber considerably, including European mode, the British & American mode and theblend mode. In Europe, Chamber is resemble to the administration of the government to agreat extent, namely, owns several official authority but still insist in the doctrine ofself-dependence and self-regulation in a considerably high degree. As for the British &American mode, Chamber is the nongovernmental association, whose organization and operation are under the marker mechanism completely, following the aim of creatingcompetitive surroundings for its development. Bearing the properties of two modes thereof,the blend mode is structured and run by the government as well as the market.In China, the evolution of commercial trade goes through the organization form ofguild, assembly hall, public union, consortia and C of C recently. To a considerable extent,this evolution is deemed as outcome of interlace of inducing vicissitude and compellentvicissitude. The birth of our modern C of C owes to various factors, including enhancementof merchantman's consciousness to incorporate together, the change of economic policy ofQing government, impulse of social tend of thought and demonstration of foreign Chamberin China etc.. Before Qing dynasty, the government hadn't enacted correspondinglegislations concerning the organization rules of guild, but local governments had specialrelationship with guild and formed several systems in a certain degree, such as the systemof epigraph in carved stone and the system of registration of common asset of Chamber.The interior relationship of guild is regulated by rules and conventions of guild. Themodern legal systems of Chamber go through three periods, including period of transitionalphase from Qing to Min, period of Beiyang government, and period of Kuomintanggovernment. Concise constitution of Chamber enacted by Qing government is deemed asthe first legislation of Chamber. Although the content is pretty rough, the value of thislegislation is quite significant in modern time. Namely, it establishes the aim of protectingand promoting Chamber which ensures the corresponding organization and development ofChamber. Moreover, this legislation also plays a great role in aspects of advancing thestatus of Chamber, protecting its legal interest and promoting its high development. Duringthe period of Beiyang government, the Chamber law was amended several times due topositive endeavor of Chamber itself, and became more consummate later, which,undoubtedly, has active function for the further develop of Chamber. In the period ofKuomintang government of Nanjing, the government made the Chamber become the toolof controlling the field of business by the channel of various reorganization and restructure,and finally let it out of the function of self-discipline and spirit of democracy. Duringsystem transit of traditional guild to modern chamber and consortia, the power ofgovernment is the dominant factor actually. Modern Chamber Law is theresult of interestconflict between country and society, and embodies a sort of contract of the equilibriumbetween them. While two parties couldn't bear this equilibrium with change of thehistorical conditions, and furthermore they might not observe the current law, they wouldtent to make new legislation to reach another novel equilibrium exactly. â…¢As the essence of C of C, the self-regulation means the members have authority toenact itself regulations independently, and the regulations hereof have effect for all ofmembers with the basic aim of Chamber. Therefore, self-regulation of C of C containsself-determination and self-discipline. The rationality of self-regulation lies on the theorythat the self-regulation was primary representation and mainstream of C of C, and alsostands for the aim of future development as well as the dominating orientation of its value.Self-determination is deemed as ethic basis of self-regulation, while the latter thereof is thepremise for exerting its function effectively.The right of self-regulation is normally authorized to C of C to realize itsself-regulation, and bears the property of right and the property of power as well. Therefore,with relationship of government, the self-regulation primarily represents as a sort of passiveliberty, namely, the right to resist illegal interference of government. With relationship ofmembers thereof, the self-regulation is deemed as a kind of social power which comes fromindividual right of itsmembers and originally from the right of civilians to control thesociety by their social resources. Normally, self-regulation enables Chamber to reach thesuperme aim of increasing the interest of members exactly by the channel of controllingvarious social resources centralizedly. The power was confirmed and ensured by interiorautonomic regulation of Chamber.The self-regulation mainly contains the right to enact regulations, manage daily, theright to punish, and to settle disputes etc.. From the perspective of logical consideration, theregulation maker thereof should be Chamber itself, so the right to enact interior regulationsundoubtedly is the part of self-regulation. The rationality of the right to enact regulationslies on the pluralism theory of law which gives theoretical support for the civilian lawsincluding the regulations of Chamber especially. The interior regulations of Chamber bearseveral properties such as professional pertinence and efficiency. Furthermore, theregulations hereof could provide excellent mechanism of deterring errancy for the officialstatutes. With the aims of restricting behavior of members and ensuring its operationnormally, the Chamber should hold rights to manage which specifically contains the right todaily manage, to attest, to setup standard of enacting regulations, and the right to implement.As for the right to punish, it plays the role of ensuring other rights, and substantially, it is asort of nonlegal punish mechanism, namely, the discipline punishment which doesn't fallinto the rang of official power. The right hereof includes ethic punish, reputation punish,monetary punish and qualification punish etc.. The right to settle disputes refers to the power of Chamber to settle interior issues by the channel of intermediation and arbitration,which would attribute to ensure the operation of Chamber effectively. The primary mannersof right hereof are intermediation and arbitration, by the channel of which could eliminatethe disadvantageous factors for the stabilization of Chamber, and foster the cooperativespirit among concerning members in order to enhance its cohesion finally. However,comparison with official arbitration, the Chamber arbitration bears predominance in severalaspects including further professional information, more agility and secrecy. Moreover, theChamber arbitration could save the cost of parties, so the arbitrament of it would beimplemented more easily.The force of self-regulation of Chamber concentratively lies on the special relationshipbetween official statute and Chamber regulations which should be enacted by the principlesof predominance of statute and reservation of statute. The former means that autonomicregulations should not have contradiction with current statute, while with the premise ofobserving the compulsive rules, the autonomic regulations thereof should be applied forpredominantly. Undoubtedly, the autonomic regulations have certain sanctions for allmembers, but the force rang should not extend to external nonmembers.â…£As well as the profit corporation, the nonprofit association also has interest conflictinside. Therefore, it needs the reasonable interior governance as well, that is, interiordepartments should have unified mechanism of definite right and liability, mutualrestriction, harmonic operation and scientific decision, furthermore, should be systemizedby legislation and interior constitution. As an association of self-regulation, the Chamberhas the right to arrange interior organizational structure and system by the constitution itself,though legislation of various nations tent to regulate the organizational department ofChamber, the distribution of powers, the compulsory issues which must be recorded in theconstitution, the discussion proceeding, and financial affairs etc. Due to the special propertyof Chamber action, the government tents to interfere the interior governance structure of Cof C, though the range of interference should be limited reasonably. Normally, thelegislation just provides the principle regulations of interior organization and operation forChamber approximately, and leaves other issue to the constitution of Chamber.The characteristic of Chamber definitely makes it follow the principle of routinismwhich centralizes on the Chamber tenet so as to arrange the governance structure andadministrative personnel. Therefore, the Chamber Law just provides that specificregulations of organization are the compulsory issues which must be recorded in the constitution of Chamber, and govemance structure should be oriented by the principle ofroutinism rationally.The membership conference and council are inevitable departments of Chamber invarious Chamber legislations in the world. The membership conference is superiordepartment of department with power, which consists of all of members, and the counciltakes the role of determining and administrating affaires of Chamber, furthermore, it wouldsubstitute the membership conference to take charge of specific issues of Chamber duringits close. As for statutory examiner, there are distinct legislations in various countries.Because of organizational characteristics such as close relationship among members, highdegree of interest concerning, which qualifies Chamber of similarity of acquaint societynormally, the supervision to administers could be realized by various channels andmechanisms which, normally, is pretty different from company. Furthermore, the Chambercan determine the way of supervision respectively, so as to save the cost of unnecessaryorganizational arrangement.The key to setup effective interior governance structure of Chamber lies on formingthe effective inspiration and supervision mechanisms. The inspiration mechanism containsthree aspects. For the common members, the mechanism hereof focuses on the inspirationof substantial interest mainly, and the united inspiration. The inspiration of aims is hardlyeffective for them. As for members of the council, the inspiration of aims plays a significantrole, and the united inspiration has efficacy to a considerable extent as well. The inspirationof substantial interest always transfers into the inspiration of aims normally. It goes withoutsaying that the primary inspiration for professional members is the substantial interest.Interior supervision mechanism is of great importance to ensure the self-regulation ofChamber, and current supervision mechanism primarily has three modes such as the modeof examiners, the mode of independent accountant and the blend mode.â…¤Due to several factors including the particularity of interest, the attribute of powerwhich might be abused, and the inherent flaws of organization, the self-regulation ofChamber would bring several restrictions such as restricting competition, the creed ofprejudice, the parochial interest for govemance, excessive governance, the reduce of powerlimitation, baffling the increase of efficiency, and enhancing the cost of small enterprises.The restrictions of Chamber could be removed, in a considerable degree, by the mechanismof self-discipline whose effective operation should rely on a sort of perfect exterior supervision mechanism. Therefore, the restriction of interior supervision needs themechanism of exterior supervision undoubtedly.As the protector of public interest, the government should take role of primary exteriorsupervisor of C of C. The relationship between Chamber and government determines thevariety of supervision system in the world, and the dominating modes are mode ofpluralism and mode of legal incorporation. The theory of pluralism emphasizes thecompetition surroundings in which the power would be distributed on the basic of structuralpolarization. Therefore, the mode of pluralism hereof persists that the mutual competitionof plural organization could cut down excessive expansion of power, and furthermore,could realize mutual control and supervision without other part to interfere. As a neutralityfor the Chamber, government tent to supervise the Chamber by the channel of judicialmechanism never than the way of arbitration. As for theory of legal incorporation, itfocuses on institutional cooperation between government and social association, soinstitutional conformity of polarized power is necessary undoubtedly. Therefore, the modeof commercial supervision hereof focuses on the conformity of Chamber into the officialsystems and the supervision of Chamber by controlling the supreme departments ofChamber. Under this mode, the official supervision is comprehensive including thelegislative supervision, administrative supervision and judicial supervision exactly. Theideal mode of supervision should ensure sufficient self-regulation of Chamber and alsoremove restriction of this self-regulation by reasonable interference of government.To three manners of supervision, administrative supervision is considered the mostdirect and comprehensive way of interference, which would threaten the self-regulationgreatly and should be exerted more cautiously. In comparison, judicial supervision may bethe most suitable and effective manner which is deemed to be threatenless among variouspowers of government. The primary reason lies on the fact that it is a sort of positive powerwhich should be started by conceming parties, and moreover, the proceeding to run it isreckoned the most open and impartial.â…¥In light of distinct manners to come into being, the Chamber in China could be dividedtwo kinds, that is, the Chambers coming under the system and others coming outside thesystem. The former basically transfer from the administration department of government and couldn't bear the function of Chamber genuinely. As for the latter, they in reality areestablished by civilian enterprises in the field or cross the field, so they would play apositive role in protecting the legal rights of members and maintaining the market orders.Due to problems of current system, a many of civilian Chambers face the threat of validity,and maintain their independence difficultly.In recent the legal system concerning C of C is by no means pretty consummate.Specifically, due to the deficiency of official legislation, the primary legislations ofChamber are decrees which just provide the administrative procedures concerningregulation, rather than the merit regulations. Furthermore, local legislations often faceconflict with each other because of the lack of unitive legislation in the nation.The lack of self-regulation in reality has hindered the development of Chamber inChina, and the phenomenon thereof, undoubtedly, could lie in following factorsapproximately. Firstly, C of C in China is lack of official legislations to support. Secondly,the power situation of powerful government and powerless society hasn't been changed to agreat extent. Thirdly, the official orientation of theauthority is by no means pretty well.Fourthly, the lack of economic structure in China would contribute to this phenomenon aswell. Finally, the desire and drive of Chamber to pursue self-regulation has not beenattached considerable importance to.To conceive our ideal Chamber Law, the key factor is to deal with the relationshipbetween Chamber and government definitely, and protect as well as ensure theself-regulation of Chamber in reality. The genuine relationship between them should beoriented as a sort of independence, mutual-benefit and cooperation. In detail, theindependence of Chamber should be confirmed firstly, and government is more than theupper administer of Chamber, namely, it doesn't have legal right to interfere the autonomicaffairs of Chamber. Moreover, the supervision of government should be definite as a kindof legal supervision.In a word, the whole legislative framework of our Chamber includes the General partsuch as the legislative aim, definition of Chamber, the attribute, tenet and relationship etc.,and the specific parts concerning the proceeding of setup, transfer and let-out of Chamber,the function, members of Chamber, the organizational structure, the possession, thesupervision and its legal liability etc.