Home National Mumbai : Seminar on Chinese Jurisprudence,detail story in ‘Hello Mumbai News’

Mumbai : Seminar on Chinese Jurisprudence,detail story in ‘Hello Mumbai News’

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Mumbai : Seminar on  Chinese Jurisprudence,detail story in ‘Hello Mumbai News’

By Edrich Miranda

A select audience at United World School of Law, were taken back in time about
two thousand five hundred years, by Dr. Vivek Jain, who elucidated the genesis of
Chinese Jurisprudence, vis-à-vis English Jurisprudence.
Using Indian jurisprudence as a reference point, he made a comparative study of
common law versus Chinese law; and how Civil law in China has evolved, after
China was admitted to the World Trade Organization (WTO). In order to carry out
a comparative study, he first discussed various tool available. Dr Jain was all
praise for Chinese efficiency in the legal field, as well as their work culture in
general, even though the Civil laws and Contract Act were legislated as recently as
in the early 80’s and 90’s, in their 2500 years of civilization; yes ! He also had
accolades for the working of English Courts.
Unlike in India, where courts are independent of the executive, in China, he says,
there is no concept of separation of power; and the judicial system reports to
National People’s Congress, a legislative arm in China. In China, there exists a
Procuratorate system, where there is a mechanism of supervision of judges, at
every level of the legal system, to ensure the basic philosophy that governs the
Constitution, and public interests are preserved. Many delegates, who were part
of the audience when asked whether they would like their judges to be
supervised, in spite of all the inefficiencies, such as delay. The overwhelming
answer was, NO!
In common-law countries, it is the adversarial system which is followed in the
courts, where judges are supposed to go religiously based on documents and
hearing advocates of all concerned parties, and will refrain from becoming the
investigating authority themselves. On the other hand, in civil law judges in
Germany, Japan and China, have powers to investigate and collate facts as their
sole aim is, to find substantive truth in all cases.

He highlighted that Indian legal system has everything to offer, but reforms in civil
procedure is a need and should not be delayed. The ability of citizens to access
courts is also part of human rights. India can improve, we emulate their work
culture of Chinese, were there is less arguments between an authority and his
subordinate, or an advocate and his juniors, by and large orders are carried out in
a harmonious manner in China, when compared to India, parties owe up, they
start the blame game, which invariably results in alleging, “It’s not my fault, you
are at fault” thereby creating acrimony. He highlighted that there is a difference
between democratic rights and for example indiscipline at work places.
Western concepts of justice and fair play, revolve around the reference point of
individual’s rights that results in freedom to speak, act, human rights, etc, and
therefore in their dealings with other countries, traces of these elements always
exist, and are harped upon; but in Chinese dealings amongst Chinese or with the
outside world, welfare of the Chinese citizen is paramount.
There exist discretionary powers conferred on Chinese Judges like in any other
jurisdiction, but it is used very sparingly or there is a hesitancy to use those
discretionary powers. On the other hand, the development of common law took
place to a large extent on discretionary power of judges.
Traversing the various legal systems, Dr Vivek Jain gave a comparative bird’s eye
view of Common law, Civil law, the Marxist law, Hindu Medieval Laws, which was
inspirational even to faculties of other law colleges, who were amongst the
participants, With Dr Malay Patel ( Asst Dean) occasionally contributing pearls of wisdom .

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