Thursday, May 24, 2007

China Admits Law Enforcement Is Lagging Behind

The Starbucks Court in Shanghai did it in grand style! It explained the law, upheld the law, and actually ENFORCED it by following through all the way until "Copycat" Shanghai Starbuck Ltd. changed its corporate name and took down all signage that created confusion with Starbucks Co. of Seattle Washington.

As I was enjoying a few moments of reverie about enforcement of laws, especially in IP protection, I came across this (in Chinese only) today, which kind of woke me up and brought me back to reality. Since Mr. Harris at Chinalawblog has decided to continue the theme of "copycats," I thought I might just copy him by carry on the discussion about the enforcement of laws and court rulings in China.

No doubt about it, China's legislative efforts in recent years have ushered in a stunning array of very important laws and regulations in international and domestic commerce, foreign trade, and basic civil codes. For instance, just this year quite a number of them were promulgated, the Private Property Law, the new Corporate Tax Law, the new Franchise Law, and the Partnership Law (to be effective on June 1, 2007), to name just a few.

While all of us can be and are actually pysched about these new laws, the reality of enforcement on the ground remains a huge problem, which is in almost stark contrast with the progress that China has made in legislating.

Reasons abound for the lack of advancement and progress in enforcement. The above quoted article states a few:

  1. rampant local protectionism challenges the authority of laws.
  2. the unwillingness and lack of resolve to follow laws and the seeming immunity for not complying with laws all discredit the actual authority of laws.
  3. the lack of a basic and fundamental framework of the rule of law permeats the society which creates a challenging environment for law enforcement.

The article then goes on to substantiate with actual examples of how law enforcement lags behind, but it falls short of expressing or even suggesting what can be done about this phenomonon.

So, it got me thinking what exactly needs to be done in China to ensure the enforcement of laws, regulations, and court orders.

To answer that question, I think that one needs to go a little further than simply examine the obvious--what the U.S. or the West does to achieve enforcement, because copying (gosh, I'm getting a little nervous about using the word "copy" now.) what the U.S. does might not work too well. (Reasons I will explain later)

With that said, I think there need to be a two-step approach to analyze the issue...

--to be continued

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