Chun’e, Dong --- "Judiciary strategy for historical problems originating from the reform of Corporate Share institutions" [2013] ELECD 705; in Shi, Jichun (ed), "Renmin Chinese Law Review" (Edward Elgar Publishing, 2013) 240

Book Title: Renmin Chinese Law Review

Editor(s): Shi, Jichun

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781782544340

Section: Chapter 11

Section Title: Judiciary strategy for historical problems originating from the reform of Corporate Share institutions

Author(s): Chun’e, Dong

Number of pages: 24

Abstract/Description:

Evasion of law is a common phenomenon in market practice, especially in the course of China’s economic system reform as the market institutions are still unstable and may change frequently. Problems related to evasion of law have also become more serious because of the lack of strict legal supervision. From the view of normative analysis, the legal effect of evasion of law should be negative as the intention of the actors is to escape legal restraints. In the past, many cases in China have suggested that courts will not deny all the effects of the evasion of law, but on the contrary, may take more flexible measures to resolve many of the cases because they consider this illegal behavior to be a kind of ‘historical problem’ that originated from the imperfections of institutions still very much under development. Due to the tolerant attitude of the courts, many of those actors who evade laws have not been punished at all and will even gain benefit by engaging in illegal activities. This kind of unusual phenomenon reveals there is a paradox between normative legal provision and positive legal practice. And behind this paradox, there may be certain special facts and reasons that support the courts’ tolerance.