An Integrative Approach to Legal Research: Advancing the

Prof. Dr. HAN Shiyuan, Tsinghua University, PRC Dr. Knut B. PISSLER, M.A., Max Planck Institute

for Comparative and International Private Law, Germany Prof. Dr. Christiane WENDEHORST, LL.M., University of Vienna, Austria

An Integrative Approach to Legal Research:An Integrative Approach to Legal Research:

Advancing the Genre of Commentary Advancing the Genre of Commentary in Chinese Legal Literaturein Chinese Legal Literature

Legal CommentariesLegal Commentaries

I. Legal commentaries in Europe

II. The development in China

III. Main ideas of the project

IV. Implementation

I. Legal commentaries in Europe

I. EuropeI. Europe

The genre of legal commentary in Europe developed in mid 13th century with Accursius’s Glossa ordinaria on the Corpus Iuris Civilis (Bologna, Italy).

Legal CommentariesLegal Commentaries

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I. EuropeI. EuropeLegal CommentariesLegal Commentaries

A “legal commentary” is the annotated version of a statute, where the annotations are by far the dominating part and explain the statute article by article (section by section / paragraph by paragraph).Example: Commentary on Art. 1 of the CISG

I. EuropeI. EuropeLegal CommentariesLegal Commentaries

A commentary provides guidance on how to interpret and apply the law correctly.

In particular, it contains information on history, legislative intention and purpose functioning in typical fact situations relation to other provisions relevant court decisions academic opinions

The information is usually analysed and critically assessed by the commentator herself, who is identified by name.

A commentary is kept up-to-date, and new editions or supplements are published at regular intervals.

I. EuropeI. EuropeLegal CommentariesLegal Commentaries

treatise textbook

digest bibliography

database encyclopaedia

(e.g. Corpus Juris Secundum)

handbook

commentary

How to get access to the law

I. EuropeI. EuropeLegal CommentariesLegal Commentaries

The tradition of legal commentary is particularly strong in the German speaking countries (Germany, Austria, Switzerland).

In some jurisdictions (e.g. France), commentaries do not play an important role. A possible reason is that, in these jurisdictions, court judgments tend to be very short and hardly contain any statement of grounds or reference to (primary or secondary) sources.

Legal CommentariesLegal Commentaries

I. Legal commentaries in Europe

II. The development in China

III. Main ideas of the project

IV. Implementation

II. The development in China

II. Development in ChinaII. Development in China

In China, the first works where laws were explained article by article developed in the mid 1990s.

Example: the series „Encyclopedia of Explanations of Laws of the PR China 中华人民共

和国法律释义全书).

Legal CommentariesLegal Commentaries

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Encyclopedia of Explanations of Laws of the PR China 中华人民共和国法律释义全书

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

large groups of authors

authors of the respective explanations not identified by name

no references and citations of academic texts or court judgments as sources

Characteristics of these works:

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

In 1996, the “Series New Explanations on the Laws of the Socialist Market Economy” (社会主义

市场经济法律新释新解丛书) was published.

The first volume contains explanations on the “General Principles of Civil Law” (民法通则).

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

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Series New Explanations on the Laws of the Socialist Market Economy 社会主义市场经济法律新释新解丛书

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

Characteristics:

group of editors

authors of the respective explanations not identified by name

some references to academic texts, but not to court judgments

innovation: cites laws and regulations, which bear a relation to the article commented upon

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

New and much extended edition of the Explanations on the “General Principles of Civil Law” published in 2000 (three volumes)

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

Since the late 1990s, the “Series of Explanations on the Laws of the PR China” (中国人民共和国法

律释义丛书) has been published.

It is edited by the Legislative Affairs Committee of the Standing Committee of the National People’s Congress (法工委).

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

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Characteristics:

volumes edited by high-ranking cadres (e.g. the volume on contract law, published in 1999, was edited by HU Kangsheng, at the time Chairman of the Legislative Affairs Committee)

authors not identified by name

usually published only shortly after the promulgation of the law explained (suggesting the assumption that the authors had insider knowledge of the legislator’s intentions)

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

In 1999, the “Explanation and Application of the Contract Law” (合同法释解与适用) was published.

It was edited by LI Guoguang, at that time vice-president of the Supreme People’s Court.

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

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Characteristics:

naming names of the authors, but authors of the individual passages in the volumes not identified

systematic references to laws and regulations like in the 1996 series

further reading listed in the annex, but no references in the text itself

no reference to judgments

each explanation ends with a short summary of the key questions (需要注意的问题), making the work more useful to practitioners

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

number of legal commentaries rising sharply: MPI library in Hamburg holds already 50 commentaries (释义) published between 2002 and 2008

commentaries on judicial interpretations of the Supreme People’s Court since 2001

innovation: some of the most recent commentaries on SPC judicial interpretations refer also to judgments of other courts

commentaries on the Internet (e.g. chinalawinfo) do not identify the authors by name

Legal CommentariesLegal Commentaries II. Development in ChinaII. Development in China

Developments since 20005

Legal CommentariesLegal Commentaries

I. Legal commentaries in Europe

II. The development in China

III. Main ideas of the project

IV. Implementation

III. Main ideas of the project

Legal CommentariesLegal Commentaries

A commentary on the General Part of the Contract Law

taking into account and referring to

relevant laws, regulations and SPC judicial interpretations

court decisions

academic texts and other legal literature

naming the individual authors of each part of the commentary

serving as future model for commentaries on the Special Part of the Contract Law and on other laws (e.g. Company Law, Property Law)

III. The ProjectIII. The Project

III. The ProjectIII. The ProjectLegal CommentariesLegal Commentaries

promoting an integrative approach to legal research, which involves broad coverage of primary sources, relevant court decisions, academic texts and a commentator’s critical analysis

facilitating access to the law for judges, lawyers and academics

providing for transparency of the law in action and of academic views published

enhancing consistency of court decisions

enhancing the quality of academic contributions

Aims of the project:

Legal CommentariesLegal Commentaries

I. Legal commentaries in Europe

II. The development in China

III. Main ideas of the project

IV. ImplementationIV. Implementation

Legal CommentariesLegal Commentaries

model commentary on one provision of the Contract Law, prescribing uniform styles and structures to be adopted by every author

team of authors (scholars and judges) with adequate number of qualified research assistants to find and analyze relevant cases and legal literature

cases to be found in collections like “Selected Cases of People’s Courts” (人民法院案例选) or “Chinese Significant Adjudicated Case Reports” (中国审判案例要览) and electronic databases (Chinalawinfo.com lists 14,341 cases where the courts cited provisions of the Contract Law)

regular meetings of authors to exchange ideas and avoid inconsistencies

IV. ImplementationIV. Implementation

Thank you for your attentionThank you for your attention Comments and suggestions welcomeComments and suggestions welcome

lawhsy@mail.tsinghua.edu.cn

pissler@mpipriv.de

christiane.wendehorst@univie.ac.at