Author
Prof Zhixun CAO
Organisation/Institution
Peking University Law School
Country
CHINA
Panel
International Arbitration and Dispute Resolution
Title
Dynamic Legal Discourse Between West and East: Focusing on the Understanding of Subject Matter of Claims in Civil Proceedings
Abstract
This presentation is to argue that although there are many Chinese characteristics in civil justice, the German counterpart is intensively considered in the construction of Chinese rule of law. Among others, the subject matter of claims (Streitgegenstand) is a core concept of civil procedure and its identification, namely whether it comes to the identical claim or not, runs through the whole civil procedure. The Supreme People’s Court in China provides its leading opinion within the specialized judicial interpretation on civil procedure. While the procedural theories, which emphasize the standards using elements out of the substantive law, are the leading theories on the subject matter of claims in Germany since long ago, the Chinese counterpart is still working on more substantive theories focusing on the function of the substantive law. During the legal discourse and transplantation, all important German theories have been introduced into Chinese literature and Germany has been regarded as a major source of legal research also in civil procedure. The judicial practice accepts different theories in various cases before different courts at varied levels, while multiple connected institutions have discussed to deal with the weakness of certain theories. There are countless possibilities of interacting with the civil substantive law issues as well. Comparative reflection in this regard may reconsider our own legal system and its relative position and foreign experience may solve practical issues in global context.
Biography
CAO Zhixun (Hector) is a professor (Research) and tenured associate professor (Teaching) in Peking University, People’s Republic of China (P.R.C.). He is born on June 8, 1986 in Beijing, P.R.C. He holds his LL.B., LL.M. and LL.D. in Peking University and is pursuing his second doctoral title in University of Regensburg (Germany). He was a postdoctoral research fellow at Shanghai Jiaotong University, P.R.C. His research interests cover civil procedure, evidence law, dispute resolution, civil and commercial law, comparative law and judicial system. He is the author of about 90 scientific publications in books and journals and was invited as a speaker or a national reporter in conferences organized in Brazil, Chile, Germany, Japan, Korea, Luxembourg, the Netherlands, Norway, Peru, Russia, Sweden, UK, US, and Mainland and Taiwan region of China. Prof. Cao acts as the chief researcher of different scientific projects granted e.g. by the National Social Science Foundation, the Department of Justice and the Beijing government in China. In 2020, the Department of Education in China awarded him the Higher School Science Research Excellent Achievement Prize (Humanities and Social Science). He is a director of the China Civil Procedural Law Society and the deputy secretary general of the Center for International Arbitration Research of Peking University. He is an active editor of the Peking University Law Journal in Chinese. His new book in English is published by the Springer under the title of “Civil Judgments at First Instance: Comparative Experience and Chinese Solution” in Feb. 2025.
