Legal Reforms in China and Vietnam: A Comparison of Asian Communist Regimes

393 Pages·2010·1.488 MB·English

by  John Gillespie, Albert H.Y. Chen

Legal Reforms in China
and Vietnam
Although the adoption of market reforms has been a key factor leading to China’s
recent economic growth, China continues to be governed by a communist party
and has a socialist-influenced legal system. Vietnam, starting later, also with a
socialist-influenced legal system, has followed a similar reform path, and other
countries too are now looking towards China and Vietnam as models for develop-
ment. This book provides a comprehensive, comparative assessment of legal
developments in China and Vietnam, examining similarities and differences, and
raising important questions such as: Is there a distinctive Chinese model, and/or
a more general East Asian Model? If so, can it be flexibly applied to social and
economic conditions in different countries? If it cannot be applied to a culturally
and politically similar country like Vietnam, is the model transportable elsewhere
in the world? Combining ‘micro’ or interpretive methods with ‘macro’ or struc-
tural traditions, the book provides a nuanced account of legal reforms in China
and Vietnam, highlighting the factors likely to promote, change or resist the
spread of the Chinese model.
John Gillespie is Professor of Law and Director of the Asia Pacific Business
Regulation Group, Department of Business Law and Taxation, Monash University.
Albert H. Y. Chen is Chan Professor in Constitutional Law in the Faculty of Law
at the University of Hong Kong.
Routledge Law in Asia
Series editor
Randall Peerenboom
1 Asian Discourses of Rule of Law
Theories and implementation of rule of law in twelve
Asian countries, France and the U.S.
Edited by Randall Peerenboom
2 Human Rights in Asia
A comparative legal study of twelve Asian jurisdictions,
France and the USA
Edited by Randall Peerenboom, Carole J. Petersen and
Albert H. Y. Chen
3 Support for Victims of Crime in Asia
Edited by Wing-Cheong Chan
4 Administrative Law and Governance in Asia
Comparative perspectives
Edited by Tom Ginsburg and Albert H. Y. Chen
5 Regulation in Asia
Edited by John Gillespie and Randall Peerenboom
6 New Courts in Asia
Edited by Andrew Harding and Penelope (Pip) Nicholson
7 Legal Education in Asia
Edited by Stacey Steele and Kathryn Taylor
8 Legal Reforms in China and Vietnam
A comparison of Asian Communist regimes
John Gillespie and Albert H. Y. Chen
Legal Reforms in China
and Vietnam
A comparison of Asian
Communist regimes
Edited by
John Gillespie and Albert H. Y. Chen
First published 2010 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
270 Madison Ave, New York, NY 10016
Routledge is an imprint of the Taylor & Francis Group, an informa business
This edition published in the Taylor & Francis e-Library, 2010.
To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.
© 2010 John Gillespie and Albert H Y Chen
All rights reserved. No part of this book may be reprinted or
reproduced or \utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information
storage or retrieval system, without permission in writing
from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Legal reforms in China and Vietnam: a comparison of Asian communist
regimes / John Gillespie and Albert H. Y. Chen.
p. cm. – (Routledge law in Asia; 8)
Includes bibliographical references and index.
1. Trade regulation–China. 2. Trade regulation–Vietnam. 3. Law reform–China.
4. Law reform–Vietnam. I. Gillespie, John. II. Chen, Hongyi, 1957–
KNC764.L44 2010
343.51'087–dc22
2009045361
ISBN 0-203-85269-9 Master e-book ISBN
ISBN 978-0-415-56104-4 (hbk)
ISBN 978-0-203-85269-9 (ebk)
Contents
List of tables viii
List of contributors ix
Preface xiii
1 Comparing legal development in China and Vietnam:
an introduction 1
JOHN GILLESPIE AND ALBERT H. Y. CHEN
PART I
Mapping the Chinese and Vietnamese legal development models 27
2 Rule of law, democracy and the sequencing debate:
lessons from China and Vietnam 29
R ANDALL PEERENBOOM
3 Legal thought and legal development in the People’s
Republic of China 1949–2008 51
ALBERT H. Y. CHEN
4 The juridification of state regulation in Vietnam 78
JOHN GILLESPIE
PART II
Developing an administrative law system 103
Introduction to Part II 105
MICHAEL W. DOWDLE
5 Toward regulatory neutrality in a Party-State? A review of
administrative law reforms in China 109
Z HENG GE
vi Contents
6 Achievements and challenges in developing a law-based
state in contemporary Vietnam: how to shoe a turtle? 134
MATTHIEU SALOMON AND VU DOAN KET
PART III
Access to justice in China and Vietnam 155
Introduction to Part III 157
N ICHOLAS BOOTH
7 Access to justice in China: potentials, limits, and alternatives 163
F U HUALING
8 Access to justice in Vietnam: state supply – private distrust 188
PIP NICHOLSON
PART IV
Commercial regulation in China and Vietnam 217
Introduction to Part IV 219
D ONALD CLARKE
9 Commercial regulatory reform in China during transition:
an alternative path to the regulatory state 226
L ENG JING
10 The development of commercial regulation in Vietnam’s
market economy 254
MELANIE BERESFORD
PART V
Legal education and the legal profession in China
and Vietnam 269
Introduction to Part V 271
JEROME A. COHEN
11 China’s lawyers and their training: enduring influences
and disconnects 276
ALISON W. CONNER
Contents vii
12 Legal education and the legal profession in contemporary
Vietnam: tradition and modification 299
BUI THI BICH LIEN
PART VI
Legal diffusion: the role of non-state actors in shaping the
regulatory environment 321
Introduction to Part VI 323
MICHAEL W. DOWDLE
13 Bottom-up regulation by business associations and
companies in China 328
C HENXIA SHI
14 Legal diffusion and the role of non-state actors in shaping
the regulatory environment in Vietnam 350
NGUYEN HUNG QUANG
Index 370
Tables
5.1 Major administrative reforms since 1978 113
5.2 Number of normative documents 117
5.3 Efforts to “clean up” inconsistent administrative
regulations and rules 117–118
5.4 Results of the administrative review process in China 124
5.5 Administrative dispute resolution mechanisms in Vietnam
and China 125
5.6 E-government readiness rankings: China and Vietnam 127
9.1 Vietnam and China at a glance 230
9.2 Centralization of regulatory institutions 236
Contributors
Melanie Beresford is an Associate Professor and Deputy Dean Research in the
Faculty of Business and Economics at Macquarie University. Her research
interests include centrally planned and transition economies in East Asia,
especially Vietnam. She has held visiting fellowships at the Nordic Institute of
Asian Studies, Copenhagen; Department of Political and Social Change,
Research School of Pacific and Asian Studies, Australian National University;
Institute of World Economy, Hanoi; and the Swedish Centre for Working
Life, Stockholm. Her most recent books are T owards Gender Budgeting for
Vietnam (2005) and (co-edited with Tran Ngoc Angie) Reaching for the
Dream: challenges of sustainable development in Vietnam (2004).
Nicholas Booth is Senior Policy Advisor on Rule of Law and Access to Justice,
UNDP, Vietnam.
Albert H. Y. Chen is a graduate of the University of Hong Kong and Harvard
University and is the Chan Professor in Constitutional Law at the University
of Hong Kong. He is currently a member of the Strategic Development
Commission of Hong Kong, a member of the Hong Kong Basic Law
Committee of the Standing Committee of the National People’s Congress of
China, a Justice of the Peace, and an honorary professor at several Chinese
universities. He has taught and published widely on the Hong Kong legal
system, constitutional law, administrative law, law and society, jurisprudence,
and the legal system of the People’s Republic of China. His most recent books
are (co-edited with Tom Ginsberg) A dministrative Law and Governance in
Asia: Comparative Perspectives (2009) and (co-edited with Randall
Peerenboom and Carole J. Petersen) H uman Rights in Asia (2006).
Donald Clarke is a Professor of Law at the George Washington University Law
School in Washington, D.C., where he specializes in modern Chinese law,
focusing particularly on corporate governance, Chinese legal institutions, and
the legal issues presented by China’s economic reforms. In addition to his
academic work, he founded and maintains Chinalaw, the leading internet list-
serv on Chinese law, and writes the Chinese Law Prof Blog. He is a member
of the Academic Advisory Group to the US–China Working Group of the