Bulletin Spring 1988

instructive in content. Exchanges were often insightful, even riveting at times. There was a good deal of discussion on the various problems related to the legal person: the definition of enterprise (state, collective and other) legal person and its property rights; the distinction between state ownership and the right of operation (jingyingchuan) carved out for the state enterprises; the relationship between the enterprises and the state and that between the enterprises and the Party, and so on. It seemed all were in agreement that the enterprises must have fuller control over their assets to be truly autonomous and efficient and the General Principles of Civil Law represents a major step in that direction. But questions were raised as to ‘Who is Party A ?' 'What is the law?' and 'Whose word is binding?' in China. Some scholars found the enterprises' right to dispose of property indistinguishable from the state's ownership; others argued that the enterprise still cannot exceed the scope of the state's authorization in exercising its right of operation. The absence of a clear definition of the enterprise-Party relationship bothered many since that is as relevant as the enterprise-state relationship. Practically all speakers on contract took a functional approach to the role of contract in China. Whilst they observed a trend in Chinese law to adopt rules more appropriate to contracts governed by market forces rather than the state economic plan, it was pointed out that many principles of socialist contract law are still present in the General Principles of Civil Law. For instance, a contracting party is still held liable for a breach of contract induced by an administrative authority (Article 116). Rather than treating the administrative intervention as force majeure or a supervening illegality, the contracting party is made liable for the breach, i.e., it must perform and pay damages or the contract penalty, and then seek a remedy from the administrative authority. Several scholars gave examples of the serious consequences this rule has had on foreign trade contracts, e.g., the cases of the Baoshan Steelworks and Toshiba technology sales. Speakers on the liability in tort welcomed the provisions in the General Principles as a coordinated uniform basis for determining liability and providing remedies and hailed it as an important statement of individual rights in China. Although principles of tort have long been discussed in China and a number of specific laws have been enacted before, the General Principles has finally provided the means of enforcing rights to compensation for damage to property and person. There were also debates over the appropriateness of adopting fault as the criterion of contractual and, in particular, tortious liability. It was pointed out that any assumption that the party at fault can afford to pay compensation out of its own pocket or by insurance is not commensurate with reality in China. A system of social insurance would be more appropriate in the view of some scholars. On private property, particularly ownership of the means of production such as worksho p premises, vehicles and machinery, the consensus was that the permitted scope in China may have expanded further than that in the Soviet Union. Individuals now enjoy rights not only of tangible property such as houses but also of intangible property such as contracting the use of land for private cultivation. In this respect, it was noted that the Seventh National People's Congress would be amending the 1982 Constitution of the PRC as so to provide the new policy its legal endorsement. That China's legislation still lags behind her recent socio-economic and political developments in many areas is a fact readily admitted by the mainland scholars themselves. In some cases, the laws and regulations promulgated in and for the Shenzhen Special Economic Zone seem to be more advanced than those applicable in the rest of country. For instance, the General Principles of Civil Law includes the three main types of security devices in common use in commercial activities (or horizontal economic integration as it is called in China), viz. the lien, the surety and the charge against collateral. However, these devices ar merely mentioned in that law. In Shenzhen, on the other hand, there are now specific regulations on secured loan transactions. Clearly, further legislation is necessary to implement the General Principles. As Vice-Chancellor Kao said in his opening remarks, civil law is a fundamental law which not only affects legal scholars and lawyers but also people of all walks of life. As Sir T.L. Yang said in his letter of invitation to participants, the 1986 General Principles of Civil Law is the first endeavour to codify the basic principles of private law (although, in China, such a concept is still very controversial) governing socialist China. In a way, it is also an attempt to legislate social change; it will undoubtedly go a long way in effectuating China's economic structural reform. To assemble at The Chinese University the leading scholars from various parts of the world, including the most respected of them from both the Mainland and Taiwan, to share research results and compare notes on this important document at this time is in itself a significant event. To be able to say 5