Author
Assoc Prof Wenjing Chen
Organisation/Institution
East China University of Political Science and Law
Country
CHINA
Panel
Corporate Law and Governance
Title
Legal Transplants in Chinese company law: A Complex Reality
Abstract
In China’s transition from central plans to a market economy from the late 1970s, many economic entities emerged from the bottom of the economic system, which naturally demanded market-based regulations. China’s first company law was enacted in 1993 and revised in 2005, 2013, 2018 and 2024 respectively. The law was a product of legal transplant with legal concepts, norms, institutions, terminologies from foreign corporate laws. However, the borrowed concepts and rules have not functioned in the same manner as in their home jurisdictions. For example, derivative action, which is originally intended as a legal protection for minority shareholders in Anglo-American jurisdictions, are mainly brought by “big shareholders” (with more that 50% shareholding) in China. That is, China only imported the name and format of this institution which has to operate in an institutional environment to discourage minority shareholders from taking advantage of this protection. This paper studies transplanted rules in China’s corporate law, including the derivative action, fiduciary duties, corporate veil piercing to examine the level of divergence between Chinese rules and those in the origin jurisdictions. And also, this paper tries to investigate the reasons behind such divergence and show how this transplanted law really work in China, especially how it is applied by Chinese judges. For example, when applying this transplanted law, how do Chinese judges make legal reasoning; whether this legal reasoning made properly; how does it affect the judgment? What is lost by Chinese legislators when they borrowed foreign law?
Biography
Dr Wenjing Chen holds a position as an Associate Professor at East China University of Political Science and Law (ECUPL). She obtained her LL.B. from ECUPL, LL.M. and Ph.D from Ghent University, Belgium. She was an ASLI visiting fellow at NUS Law in 2016, and is appointed Young Oriental Scholar by Educational Department of Shanghai Municipal Government. Dr Chen’s research interests include, among others, comparative corporate law, comparative commercial law and international economic law. She has taught comparative company law, European law and law in transnational business transaction in ECUPL, Chinese Company and Capital Market Law in NUS-IBL program. She has published articles in peer-reviewed journals both in English and in Chinese, such as, the Company Lawyer, Hong Kong Law Journal and Tsinghua University Law Journal.Dr Chen serves in the editorial borad of Legal Science and works as a guest editor of some peer-reviewed journals, such as, Asia Pacific Law Review, Chinese Journal of Comparative Law.
