APN News

  • Friday, August, 2020| Today's Market | Current Time: 04:51:26
  • by Sachin Murdeshwar

    MUMBAI: A select audience at United World School of Law, were taken back in time about two thousand five hundred years, by Dr. (Capt.) Vivek Jain, who elucidated the genesis of Chinese Jurisprudence, vis-à-vis English Jurisprudence.

    Using Indian jurisprudence as a reference point, he made a comparative study of Common law versus Chinese law; and how Civil Law in China has evolved, after China was admitted to the World Trade Organization (WTO). In order to carry out a comparative study, he first discussed various tool available for comparison. Dr Jain was all praise for Chinese efficiency in the legal field as well as their work culture in general, even though the Civil laws and Contract Act were legislated as recently as in the early 80’s and 90’s in their 2500 years of civilization; yes ! He also had accolades for the working of English Courts.

    Unlike in India, where courts are independent of the executive, in China, he says, there is no concept of separation of power and judicial system reports to National People’s Congress a legislative arm in China. In China, there exists a Procuratorate system, where there is a mechanism of supervision of judges at every level of the legal system to ensure the basic philosophy that governs the Constitution and public interests are preserved. Many delegates, who were part of the audience when asked whether they would like their judges to be supervised in spite of all the inefficiencies such as delay. The overwhelming answer was NO!

    In Common-law countries, it is the adversarial system which is followed in the courts, where judges are supposed to go religiously based on documents and hearing advocates of all concerned parties and will refrain from becoming the investigating authority themselves. On the other hand, in Civil Law, judges in Germany , Japan and Chinese Judges have powers to investigate and collate facts as their sole aim is to find substantive truth in all cases.

    He highlighted that Indian legal system has everything to offer, but reforms in Civil Procedure is a need and should not be delayed. The ability of citizens to access courts is also part of human rights. India can improve, we emulate their work culture of Chinese, were there is less arguments between an authority and his subordinate, or an advocate and his juniors, by and large orders are carried out in a harmonious manner in China, when compared to India, parties don’t owe up, they start the blame game, which invariably results in alleging, “It’s not my fault, you are at fault” thereby creating acrimony. He highlighted that there is a difference between democratic rights and indiscipline at work places.

    Western concepts of justice and fair play, revolve around the reference point of individual’s rights that results in freedom to speak, act, human rights, etc, and therefore in their dealings with other countries, traces of these elements always exist, and are harped upon; but in Chinese dealings amongst Chinese or with the outside world, welfare of the Chinese citizen is paramount.

     There exist discretionary powers conferred on Chinese Judges like in any other jurisdiction, but it is used very sparingly or there is a hesitancy to use those discretionary powers. On the other hand, the development of common law took place to a large extent on discretionary power of judges.

    Traversing the various legal systems, Dr Vivek Jain gave a comparative bird’s eye view of Common law, Civil law, Marxist law, Hindu Medieval Laws, which was inspirational even to faculties of other law colleges, who were amongst the participants, With Dr Malay Patel (Asst. Dean) occasionally contributing pearls of wisdom.