On The Effect Of Trade Association Rules

With the further reform and open and the development of the market economy in our country, trade associations, as a kind of medium organization, are rapidly developing. Scholars have researched trade associations as a new topic and achieved a lot. They agree that trade associations are autonomous organization by nature, and they have autonomous right. In order to realize their autonomy, trade association rules, are the basis of an organization to exist and to reach its goal, are necessary. Thus, it is necessary to discuss the following questions: what do trade association rules consist of? And how is the effect of these rules?This paper begins with the concept of trade association rules and discusses their content and manifestation. On the basis of the analyzing of the nature of trade association rules as non-governmental law, this paper analyzes the effect of trade association rules, and discusses how these rules become effective legally. At last, this paper discusses further to the effect of trade association rules through analyzing the relation between trade association rules and judicial review by cases.This paper is divided into four parts:Part I: Introduction. This part gives the writing background and meaning of this paper, sums up the relevant previous documents, and shows the paper's logical structure.Part II: Analysis of the fundamental theory of trade association rules. In this part, the author defines the content and manifestation and analyses the nature and functions of trade association rules. In the author's opinion, trade association rules consist of the following three forms: the bylaw of trade association, industrial standards and industrial rules.The bylaw is a contract among the members of a trade association. It is made to regulate the relations among the members and the conducts of the members within a trade association.Industrial standards consist of quality standards and qualification standards. Generally, they are made on the basis of the government's commission, or on the purpose of interpreting governmental standards in details.Industrial rules are made to regulate transaction and moral issues by the trade association. The manifestation of industrial rules consists of collected transactional customs and regulations of transactional conduct and morals that are made by the trade association.Any organization, if it wants to exist and to reach its goal, it must make some rules and regulations. Trade associations are not exceptional. To a trade association, trade association rules are necessary to realize its aim and strengthen its autonomy. Each part of trade association rules mentioned above regulates separately the fundamental rights and obligations, the conduct and the moral issues of the members. They have different function.Part III: The effect of trade association rules. This part is the core of this paper. In this part, the author discusses the difference between'effect'and'legal effect'at first, and points out that to a large extent, the confusion of the two concepts results in the current disputes about the effect of trade association rules. In the author's opinion, as non-governmental law, trade association rules are effective but not effective legally. As to as trade association rules, their effect emphasizes the actual effect, or the result, while that of statutes emphasizes the compulsion and binding force of the regulations.The author then discusses the bases on which trade association rules are effective. The first base is social authority. And because the main resource that trade associations rely on to be coming into effect is economic resource, that is to say, trade associations can repay something to its members, so the social authority here is repaying-authority. The second base is people's approval. Because of their specialty and flexibility, trade association rules are more able to embody people's need.After the base of trade association rules'effect, the author analyses three means by which the rules are implemented: extensive propagation, self examination and system of rewards and penalties.Those mentioned above is about the effect of trade association rules as non-governmental law, but there are some trade association rules which become effective legally by some certain means. This is mentioned in some articles, but not discussed in details, while the author explores these means in this paper. In the author's opinion, these means by which trade association rules become effective legally consist of: statutes absorb the rules; statutes acknowledge the rules'legal effect; the governments make the rules effective legally like administrative regulations by informing some units to implement them, or by writing comments on them and pass them around, or by giving an official and written reply. In addition, trade association rules made by organizations that are authorized by laws and regulations or commissioned by administrative units have been supported by the authority to some extent, even they have no legal effect yet.Part IV: trade association rules and judicial review. To understand the effect of trade association rules, we not only need to analyze theoretically the base on which trade association rules are effective and the means to implement trade association rules, but also need to explore the relation between these rules and statutes. This part mainly discuss the impact that the judicial review has on trade association rules, since in the author's opinion, the conflict and interaction between trade association rules and statutes should be done with by judicial review.Firstly, compared with administrative review and legislative supervision, judicial review is more promptly, flexible and procedurally fair.Secondly, as to as the judicial review of the general trade associations rules as non-governmental law, The author, through analyzing the causes and effects of the court decision in the judicial review of this trade association rule "declined carrying beverages", shows that judicial review has not been given the attention they deserve and have failed to achieve their desired effect in our country. In light of these problems, the author proposes the following criteria for judicial review: as to as the attitude of court be concerned, court should intervene when necessary; judicial review should address the just interests of trade associations as embodied in those rules; judicial review must also take transaction cost and the allocation of resources into account.Thirdly, as to the judicial review of those trade association rules which have become legally binding, I think the problem mainly exists in the rules which have become administrative regulations and which are made by authorized or commissioned organization by administrative laws and regulations or governments. Through analyzing the cases that independent audit rules of registered accountants are not applied in practice and judicial review has given up to examine the Chinese Football Association Bylaw, the author reveals that although theoretically the effects of those trade association rules which have become legally binding through various means are different in accordance with their legal level, their effects are significantly different in practice due to various reasons. This phenomenon can only be regulated with the improvement of China's socialist market economy in legislation, law enforcement and judiciary.