Bulletin Number Two 1986

by Mr. Anthony Dicks, Dr. Frank Munzel, Mr. B.E.D. de Speville, Professor Lee Carroll Bollinger, Dr. Erhard Staedtler, Professor Chang Wei-jen ， and Dr. Byron Weng. With the exception o f Professor Helmut Coing's paper, which was the second keynote speech, each paper had an invited discussant. Most o f the discus sants made a prepared statement which was often a scholarly contribution on its own. The following papers were presented: ‘The Chinese Tradition and the Chinese Law ', by Professor John Y. Kwei, Chinese Culture Univer sity, Taiwan; (Discussant: Professor L.Y. Chiu) ‘The Problem o f Legal Transplants and the Reception o f German Law in China before 1930', by Pro fessor Knut W. Noerr, University of Tübingen, West Germany; (Discussant: The Hon. Henry Hu) ‘Traditional Chinese Attitudes Toward Law and Au tho rity', by Professor Chang Wei-jen, Institute of History and Philology, AcademiaSinica, Taiwan; (Discussant: Mr. Frankie Leung) ‘The Concept o f Judicial Independence ', by Professor Hsia Tao-tai, Far East Law Division, Library of Congress, U.S.A.; (Discussant: Mr. Ruben Kraiem) ‘The Concept o f Rights', by Professor Lee Carroll Bollinger, University of Michigan Law School, U.S.A.; (Discussant: Dr. Michael Davies) 'Citizens versus Administration: The French Con ception o f Individual Rights', by Professor Guy Carcassonne, Reims University, France; (Discus sant: Mr. Albert Chan) ‘A Comparative Study o f the Internal Application o f Treaties ，, by Professor Li Haopei, Ministry o f Foreign Affairs, Beijing; (Discussant: Mrs. Roda Mushkat) ‘An titrust in China' , by Dr. Frank Munzel, Max-Planck Institute, Hamburg, West Germany; (Discussant: Mr. Jack Young) 'Law as an Element o f European Civilization', by Professor Helmut Going, Max-Hanck Institute o f History o f European Law, Frankfurt, West Germany ‘Chinese Testaments in British Hong Kong', by Pro fessor D.M.E. Evans, University o f Hong Kong; (Discussant: Ms. Elsie Leung) ‘Non-Japanese Elements in Japanese Contracts' , by Professor Zentaro Kitagawa, Kyoto University, Japan; (Discussant: Mr. Anthony Dicks) 'Concepts o f Legislation and Interpretation in China and the West', by Dr. Philip Baker, School o f Oriental and African Studies, University o f London. (Discussant: Mr. Eric Au) Professor Going spoke authoritatively about the development o f European law, which is charac terized by certain features quite different from those in China. Within European culture, he said, law has been and still is seen as a special and more or less independent branch o f the civilization. It is indepen dent from theology, which is not the case in Islamic law, and from ethics, which is not the case in Chinese law. Hence there is a legal science which can partici pate in the general formation and change o f scientific thinking and methods. Among other things, he pointed out that for centuries law in Europe has been mainly private law, that the lim itation o f state power is a significant feature o f European law, and that modern European law is very much the order o f industrial society. Both Professors John Kwei and Chang Wei-jen demonstrated that law occupied a middle or lower- middle position as a social norm in traditional China. In spite o f efforts to upgrade the position o f law, old concepts and attitudes persist. Professor Kwei clearly favoured Confucian teachings over legalism, while Professor Chang seemed to recommend modernization o f the several existing norms, including the law. It is interesting to note that Professor John Kwei justified China's adoption o f the German law by this analogy: ‘the Anglo-American law was like a thousand-year-old giant tree in the Muir Woods, it looked grand enough, but it could not be transplanted; while the modern civil law was just like a refrigerator or a washing machine, so handy and so complete in itself, that it could be taken to any place and made the best use o f.' On this question Professor Knut W. Noerr gave a much more thorough and balanced treatise. There are indeed many problems to be con sidered for transplanting a legal system from one country to another. The paper written by Professor Li Haopei ， a Legal Adviser o f Beijing's Foreign Ministry, had to be read in his absence by Dr. Byron Weng, as Professor Li was called by his Government to attend an inter- governmental conference on the law o f treaties in Geneva at the same time. This paper received special attention in Hong Kong government circles since it stated unequivocally that in China treaties are superior to municipal law. Undoubtedly this w ill have im pli cations for the future Hong Kong Special Adminis trative Region. There were three papers dealing w ith specific areas o f contemporary Chinese law. Professor Hsia Tao-tai pointed out that judicial independence means only independence o f the courts as a whole and not o f individual judges, but that such problems are being debated in China now. Dr. Frank Munzel discussed in considerable detail and w ith insight, not just the antitrust aspects, but also legal development in general in China. In spite o f his awareness that China has a NEWS 5