The origin of the CSIG in China.by Stefano Presilla (e-assistenzalegale)
“It is generally acknowledged that the CISG has influenced the civil and contract law legislation of the People’s Republic of China ”. This important change has not been painless, specially because it had to face the traditions, culture, policy and principles of Chinese society, penetrating into the social fabric. The positive conseguences of this ongoing change are easily visible in the opening of the Chinese markets to trade and foreign investment and the China’s adhesion to numerous international organizations and multilateral treaties, including the World Trade Organization .
Neverthless, among the Chinese scholars there is who considers these changes and the opening toward the free market economy and trade forces, the cause of a radical transformation of the Chinese tradition and culture. It can not be undervalued that the shift of political and ideological ideas in China in recent years has been immense. The “opening door” policy and the political reforms which influenced and affected all the levels of Chinese society contrast with the secular Chinese ideology: “In ancient times, the Chinese philosophy of ‘ti tian xing dao’ meant to do justice for heaven, heaven being represented by the emperor. This inferred that the feudal lords would do everything for the people better than the people themselves could.
During the communist period, this philosophy was modified by Chairman Mao Tse Tung, who stated the importance to: ‘serve the people heart and soul’, i.e. meaning that the government would be responsible for everything, including trade, amongst the people. In both these ideologies, the people are considered incapable of looking out for themselves, or at least not as capable as the administration controlling them. They are not free to serve themselves, they are served from above. The major change in philosophy and ideology comes with the arrival of the commercial realities of the market economy which now allows the people to serve themselves, to be masters of their own business.
The freedom of the free market economy is remarkably tangible. This change is enormous; the commercial freedom presents a significant change in political ideology. And not all elements of Chinese society are ready to embrace this shift in political policy and ideology, although it is being embraced by most. One school of thought in China tends to resist the rush to embrace everything western and ‘modernist’ in the philosophical sense, on the grounds of legitimate national self-interest.” . In this sense, among Chinese scholars there is who considers the reservation to Art. 11 of the CISG, an brave attempt of China to avoid or, at least, delay the adoption of western concepts and customs, by resisting freedom of formation of contract . “In the eyes of those who do not believe in such caution, some may view it as nothing more than bureaucratic conservatism reflecting hostility to western mercantile practice, posing the question whether, paradoxically, the Reservation is not a consideration of outdated Chinese public policy, reflecting ideology as it was, not as it is or purports to be, today with the arrival of the free market economy in China” . To understand deeply the enormous change brought by the CISG Convention into the Chinese society, and the political contest in which this change occurred, it cannot prescind from an analysis of the influence of the Chinese Communist Party on the lawmakers and, in general on the Chinese society. As well known, just after the Constitution of the People’s Republic of China (1982), the Communist party represents the benchmarks for both local and central government authorities. ”The Communist Party traditionally had a pervasive involvement in the law-making process, although it was not directly contained in the Constitution . The Government and the Party are not at all separated despite the fact that it may appear so in documents. It only needs to be remembered that the Secretary General of the Communist Party, the Premier of China and the Chairman of Peoples Liberation Army are now the same man” . The National People’s Congress and its Standing Committees, as well as the State Council have legislative powers.
The major development in 1993 was the further amendment of the 1982 Constitution to accommodate new policies of the socialist market economy. Another important factor that cannot be undervalued, in the analysis of Chinese society is the bureaucratic reality, expressed in a vertically organized fashion . As a result, China still suffers from structural deficiencies and has not yet developed a mature legal system. Cooperation across ministries, provinces or municipalities may not be easily accomplished. It follows that case studies must be treated carefully. “It can be safely assumed that a particular ruling is repeated if a case is brought for decision in the same department or ministry. Whether it crosses ministries, or even provinces within the same ministry, such an assumption cannot be safely made” . Law and policy in China, have been defined as the two halves of a relationship, where the law has been created in accordance with policy, but also policy is formulated within the confines of the law . “The obvious temptation for bureaucrats is to rely on the policy decision rather than the legislation, in the knowledge that all laws, orders or directives, which are inappropriate, can be annulled by the ministries or commissions. A further consideration is that most if not all higher ranking officials are party members which again would make it imperative to follow policy. Such policy decisions can very well be within the confines of the law, however law still remains within the preserve of officialdom. It is not published in sufficient quantity or completeness that its full meaning and intent can be understood by foreign observers. It follows that litigation in China is not always impartial. Those who are well connected can influence outcomes or processes”. This political, cultural, social contest that makes China a CISG signatory state sui generis. Despite, some internal resistences, the Chinese government and its judicial bodies have been ready for innovate the domestic legal system, exploiting the potentialities of the CISG ever since 1987 . “Before the CISG came into force, the then-Ministry of Foreign Trade and Economic Cooperation requested governmental agencies and companies to make preparation for the forthcoming CISG’s entry into force.
On December 4, 1987, the then-MOFTEC further circulated a notice on certain issues meriting attention regarding implementation of the CISG, which were shortly endorsed by the Supreme People’s Court. These earlier preparations have resulted in the CIETAC rendering numerous decisions involving the CISG, which may differ substantially to other tribunals worldwide.