The Case Law Method And Its Aplication In Chinese Corporate Law

The world corporate law scholars have been witnessing the emergence of the Case Law Method of Corporate Law(CLMCL) developed from the divergence of corporate laws.As the common law legal system grows,the CLMCL also enters into its mature age.On the one hand,the logic between court decisions has been helping the Anglo-American corporate law systems towards perfection;On the other hand,many corporate law precedents have been codified into black letter law which makes the application of rules becoming more sable, easier,and clearer and that can also build a proved and sophisticated system of rules in their corporate law statutes.As to Chinese corporate law reform,it is believed that there are two main reasons which drive the Chinese to introduce CLMCL.First,the potential regional corporate regulatory competition is threatening the acceptance of foreign corporate law rules which mainly derived from Anglo-America(although not have a good social condition to transplant);Second,by deploying many Anglo-American corporate law institutions,the Chinese corporate law have gone far beyond its record.However,mere introducing fragmented institutions would suffer transplant effect and it will be even true as the introduced case law rules have not yet been codified in the original countries.Thus,the reasons require attention when legislature introduces rules derived from Anglo-American law and probably it will be better to develop a set of CLMCL to suit Chinese socioeconomic condition and also use it to derive corporate law based on local requirement. Then,the author suggest that as the research shows that China now has a reasonable ground to initiating CLMCL,it should be proceed with prompt and proper manner.That will not only satisfy the need of reform,but also will be helpful in facing potential regional regulatory challenges and build a concrete ground for later Chinese corporate law development.The structure of the Thesis:The Thesis is composed by five Chapters.In Chapter 1,preliminary issues are discussed and also the main discussions and methodologies deployed are expressed.The other four chapters contain mainly two aspects.In Chapter 2 and 3,the development of CLMCL in the west is introduced,whereas in Chapter 4 and 5,the introduction of CLMCL to Chinese corporate law is analyzed.Thus,in Chapter 2,the historical of emergence of CLMCL is discussed;in Chapter 3,it is claimed that CLMCL has been facilitative to the Anglo-American corporate law and also helped them to gain superiority in the regulatory competition;in Chapter 4 it is suggest that CLMCL ought to be introduced in China to adapt the development of Chinese corporate law;in Chapter 5 three crucial elements of application of CLMCL in China are explored.Chapter 1 Definition and PreliminariesChapter 2 The History of Origination of Corporate Law and Its DivergenceChapter 3 The Development and Superiority of Anglo-American Corporate LawChapter 4 The Reasoning and Analysis of Deploying CLMCL in ChinaChapter 5 Practical Aspects of Initiating CLMCL in ChinaMain Features of the Thesis:1.By exploring CLMCL,the author analyzes the adaptation of CLMCL to Chinese corporate law reform and provides chances to push researches of case laws towards specific Chinese legal branches.Current researches of case law in China mainly focus on areas like Jurisprudence and Legal History.However,in the eyes of corporate law scholars,the combination of case law and corporate law have been seen as perfect matching.Especially, in an international arena,the unique method of the development of Anglo-American corporate law has attracted the author's attention.Based on comparison of the history materials,it is prudently suggested that CLMCL should be introduced to fit Chinese circumstances and should be functional to the competitiveness and success of the corporate law reform.2.Deploying Comparative Law Method(CLM) is another main feature of this thesis. The world conflict law rules and the internalization of corporate law have been providing ground for the author to use CLM.One the on hand,the US states competitions have been explored and the connections between superiority and CLMCL have also been pointed out. Also,in the EU context,the English company law has been popular because of the conflict law rules set by the ECJ and it is pointed out that the Civil Law countries have to revise their corporate law to suit the requirement of competition.One the other hand,in contrast to the statistics of cases to some case law jurisdictions,it is claimed that it will be a good time to introduce CLMCL.3.Empirical Analysis of Chinese corporate law cases(1993-2008) is the last feature of the thesis.The author collected and processed data to reflect corporate cases of different jurisdictions which are England,Delaware,and China(Mainland).By processing the data, two issues are discovered.First,there have been plenty and diversified corporate cases which could be enough to train judges to apply CLMCL;Second,the sharp drop of Chinese corporate cases after the promulgation of Chinese new corporate law has been alerting to the legislature that transplanted corporate law institutions would not work well until we deploy CLMCL.