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Synopsis
This research examines the impact of national cultural values to the judges’ application of transplanted rules using the case of Chinese judges’ decision making on contractual damages. Seven concepts of Chinese cultural values were used from previous literatures to develop vignettes: harmony, saint, social stability, social orderliness, social egalitarianism, self-cultivation, and Zhong Yong. Three vignettes were developed that represented both commercial and civil contract cases with regard to damages. Using the vignettes, we conducted 43 in-depth interviews with Chinese judges in 13 cities and provinces across China. The respondents randomly recieved either verion A (legal factors) or version B (legal factors+cultural values factors) of each vignette and were required to decide the amount of damages and to explain their decisons based on the version they recieved.
The results suggest that the national cultural values influence Chinese judges’ decision making with respect to the amount of damages when there is a tension between cultural values and transplanted rules of damages in Chinese Contract Law. Our data show three behavioral patterns of Chinese judges toward Chinese cultural values. First, judges took the cultural values into account when determining the amount of damages. Second, judges particularly made their decisions based on Chinese cultural values when they had discretion. Third, the consideration of cultural value factors reduced the judges’ consideration of legal factors. Moreover, the data showed that the cultural value factors triggered judges to recommend or order mediation. The cultural influence may be the result of the judges’ self-acceptance of the cultural values in China. Alternatively, the administrative pressure of judges in P.R. China that has them pay more attention to seeking social approval of their decision in order to avoid the possible detrimental career effects in case of a perceivably unfavorable decision. The results put transferists’ and culturalists’ claims regarding the application of cultural values when applying transplanted rules into question. Our findings suggest an alternative mechanism is in place with respect to the function and impact of cultural values than the ones generally forwarded in the legal transplant debate. The local cultural values did not change the Chinese judges’ understanding of law. They compromised the legal requirement and cultural desires by discretion and mediation.
Speaker
Zihan Niu is a post-doctoral research fellow of law in Singapore Management University. She studied law in both Europe and P.R. China. She obtained her Ph.D. from Tilburg University, LL.M. from both the Beijing Normal University and the University of Birmingham, and LL.B. from the China University of Political Science and Law. Zihan’s research expertise is in the field of quantitative and qualitative research of contract law and financial law. Specifically, she is interested in the interdiscipline research between behavioral science and law. She has presented her research in the Netherlands, Belgium, UK and China.
Chair
Maartje de Visser is an Associate Professor of Law at the Singapore Management University. Prior to this, she held appointments at Maastricht University and Tilburg Law School in the Netherlands. Maartje read for law at Maastricht (meester in de rechten, cum laude) and Oxford University (MJur with distinction), and obtained her PhD at Tilburg Law School (cum laude). Her main research interests are in the fields of comparative public law and regional integration. Maartje’s publications in these areas inter alia comprise two monographs (n the enforcement of transnational legal rules and constitutional review respectively, both with Hart Publishing) and more than two dozen book chapters and articles that have appeared in leading international journals such as the American Journal of Comparative Law and the Common Market Law Review.
Event Details
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Date:
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23 March 2016 (Wednesday)
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Time:
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10.00am to 11.30am
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Venue:
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Singapore Management University
School of Accountancy & Law Building
Meeting Room 4-1, Level 4
60 Stamford Road
Singapore 178900
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Registration
This is an invitation-only event. Admission is free and by registration only. Please register by Friday. 18 March 2016.
We look forward to seeing you at the event.
With warm wishes
School of Law
Singapore Management University
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