Legal Education in P. R. China (IV)

Legal Education in P. R. China (IV)

 

John Mo and Weidong Li

 

II.                History of Legal Education

5. Legal Education Between 1949 and 1976

 

The PRC was established in 1949.  The ROC Government and the Nationalist Party which lost the internal war against the Communist Party retreated to Taidwan for refuge.  Since then the PRC has been the legitimate government of China and the ROC Government has become an exiled government, which had also claimed to be the legitimate government of China until May 2000 when the pro-independence Democratic Progressive Party (DPP) came into power in Taiwan.  The history of legal education in China after 1949 refers to the development and experiences of legal education in Mainland China after 1949.

The PRC Government, which has been controlled by the Communist Party, abolished the entire legal system of the ROC and the law codes practiced in China before 1949.  It borrowed substantially from the Soviet Law when attempting to restore law and order in China.  Communist notions of law and order were introduced to the curriculum of legal studies in 1950 when the PRC Government struggled to transplant the existing educational system to the revolutionary educational system suitable for the needs of new China.  Most existing law schools and law departments were merged and closed, and at the same time a number of new universities and special colleges of law and politics were created by the PRC Government in early 1950s.  Several famous universities or colleges which continue to be the leading universities in legal education today were created in 1952 and 1953.  The Southwest University of Politics and Law, the East China University of Politics and Law, the South China University of Politics and Law ( which was renamed the South China University of Economics, Politics and Law in 1998), the People’s University of China, the People’s University of Northeast (now the Jilin University), and the Wuhan University are such examples.  Apparently, the Communist Party which was then composed predominately of worker and peasants was not ready to develop its necessary skills and knowledge to establish its revolutionary legal system to ensure the rules of law in China.  Inevitably, the Communist Party had to apply policy and political rules to establish social order in China.  Legal education was thus turned into a discipline to train mainly cadres and administrators, instead of lawyers and judges.  As a consequence, in 1953, there were only four special colleges of politics and law, which were elevated to the status of universities in 1980s, (i.e., the Southwest University of Politics and Law, the East China University of Politics and Law, the South China University of Politics and Law and the Beijing College of Politics and Law) and three law departments in all Chinese universities (the Law Department of People’s University, the Law Department of Jilin University, and the Law Department of Wuhan University).  The Law departments or law schools which trained professional lawyers, judges and procurators were regarded as unnecessary by the PRC Government and were thus abolished in the educational reform known as Adjustment of Universities and Colleges, completed in 1953.  the major role of the colleges of polities and law was to train political cadres.  It was estimated that between 1952 and 1964, about 20,000 or 25,000 cadres at the level of county above were trained in the four special colleges of politics and law.

The PRC Government did attempt to build a society based on rule of law, which, of course, must be the “rule of law” as understood by the Communist Party.  It was estimated that between 1949 and 1953, about 150 pieces of laws, decrees, regulations and rules were promulgated by the National Political Consultative Committee, the Central Government of the PRC and its departments.  In 1954, the PRC promulgated the first Constitution of PRC.  The Drafting of other laws and codes were also under consideration.  It was estimated that as at June 1957, more than 40 pieces of laws and decrees were passed by the National People’s Congress (NPC) or its Standing Committee.  Legal education boomed as a result of the promulgation of the Constitution.  In 1954, the law Department in the Beijing University, the Fudan University, and the Northwest University were restored.  By then, there were four special universities in China.  Legal education then was largely based on the Soviet Model.  Soviet experts were invited to China to teach, and Chinese students were sent to the Soviet Union to study.  It was estimated that in 1954, there were 8,245 law students in China, a number which was higher than the total enrolment for law study in 1949.  the curriculum of legal education in early 1950 can be represented by the curriculum of the Beijing College of Politics and Law.  Professor Macdonald describes the curriculum of the College in the following words:

 

“From 1952 until 1957m there was a full-time course of study in the Peking Institute of Political Science and Law with the following curriculum: Required Courses: Fundamentals of Marxism-Leninism; History of Chinese Revolution; Political Economy; Dialectical Materialism and Historical Materialism; Logic; Chinese; Physical Education; Theory of State and Law; Law of the Chinese State; Chinese Civil Law; Chinese Criminal Law; Chinese Civil Procedure; Chinese Criminal Procedure; Administrative Law; Finance Law; Labour Law; Law of Land and Agricultural Co-operatives; International Law; Evidence; Medical Jurisprudence; Judicial Practice.  Elective Courses: Law of the Soviet Criminal Procedure; Soviet Civil Procedure; Private International Law; History of Political Thought; Judicial Account.”

 

The development of new legal system and legal education in China suffered a dramatic set-back in 1956, when the Anti-Rightist Movement began.  Chairman Mao was worried that the educated people would take state power away from workers and peasants.  He initiated the Anti-Rightist to smash his political enemies and to destroy anything which might constitute potential threat to his political power.  Law codes were probably too formal and burdensome to meet Mao’s political agenda, and were abandoned altogether by the PRC Government.  In addition, Mao was also worried about Soviet’s attempted domination of Chinese affairs and had to resist the Soviet influence as much as possible.  Having refused both the Western model of law and Soviet Model of Law, there was no direction for legal development in China.  The combination of internal political struggles and external political disagreement with the Soviet Union in the late 1950s sealed the fate of legal development in China.  China moved to a “lawless” state, where policies and internal rules served the function of “law” till 1978 when the open-door policy was adopted.  Legal education became political training course after the Anti-Rightist Movement, and the student number dropped tremendously due to a lack of demand in society.  For example in 1962, the Law Department of Beiking University admitted only 19 students.  Legal education became more politically oriented during the Great Culture Revolution which commenced in 1966.  Universities and schools were shut down during the period.  Law departments and special colleges of politics and law were also closed and merged with other disciplines, because the symbols of the state power: police department, courts and procuratorates, together with other government departments, had been smashed and paralyzed by the Red Guards loyal only to Mao himself.  In 1971, only the Law Department of Beiking University and the Law department of Jilin University were allowed to continue to exist, but they could only offer political training to cadres and governmental employees engaged in “law” enforcement and administration.  There two law departments began to take new students in 1973 and 1974 respectively.  However, the students who were selected on their political merits received only political education in these departments.  In a sense, there was no formal legal education in China between 1957 and 1977, in particular during the Great Cultural Revolution, which is generally considered to have ended in 1976.  the present system of legal education commenced in 1977 when the Chinese universities began to recruit students by national examinations again. 

      

Legal Education in China (III)

Legal Education in China (III)

John Mo and Weidong Lee

II. History of Legal Education

4. Legal Education Between 1911 and 1949

The Qing Dynasty was overthrown in 1911 in a revolution headed by Sun Yat-sen, who created the Nationlist Party (Guomingdang), which later controlled the Taidenese Government (the Government of Republic of China) between 1949 and May 2000. In 1912, the Republic of China (ROC) was established by the Nationalist Party. However, the ROC did not have any effective control of China until 1927, when he authority of ROC headed by the Nationalist Party was accepted by the remaining local warlords who still occupied considerable parts of China. During the period of 1911 and 1949, China was troubled constantly by both the internal wars between various warlords, or between the Communist Party and the Nationalist Party, and the external war with Japan. Such social instability inevitable affected the development, and also the features, of legal education in China.

Following the modern legal reform commenced in the Qing Dynasty, Chinese law evolved after 1912 into a system largely similar to Continental Law model. Professor Macdonald describes the legal development in China after 1912 in the following words:

“The process of law reform begun at the start of the century was accelerated by the fall of the Ching Dynasty and the proclamation of the Republic in 1912. The Law Codification Commission of 1904 continued its work, a provisional criminal code was enacted in1912, and a provisional constitution was promulgated in the same year. However, most of the government’s energies were absorbed in the suppression of bandits and war-lords and the creation of conditions for a central administration, finally established in Nanking in1927. Prior to 1927 (the war-lord period) the law of China was in substance the law of the Ching Dynasty.

Between 1927 and 1935, a period ‘that may well be called Justinian’, the law was greatly changed. The government enacted Six Code: the Organic Law, the Commercial Law, the Civil Code, the Criminal Code, the Civil Code on Procedure, the Criminal Code on Procedure; and other laws, on companies, insurance, bankruptcy, banking, negotiable instruments, and maritime law, soon followed. Generally speaking, these codes were of the continental type.”

From 1912 to 1949, legal education was offered as part of the formal university education in China. Along with the establishment of the Republic of China in 1912, many public schools and universities were established. It was estimated that in 1912, there were about 64 schools, colleges and universities offering legal education in China. The number of institutions offering legal education fluctuated considerably between 1912 and 1925 because of constant regional wars involving various warlords. As a result of the social and political instability, there were only 33 institutions offering legal education 1924. From 1912 to 1925, the curricula of legal education consisted largely of constitution, civil law, criminal law, procedure law, foreign law, political history, administrative law, public international law, social policy, industry policy, economics, economic history economic geography and foreign languages.

The legal system in China developed substantially after 1927 when the Nationalist Government unified China through winning a number of regional wars against warlords. In 1928, the ROC Government promulgated the Criminal Law of ROC, and the Code of Criminal Procedures. In 1930, the ROC Government completed the codification of the Civil of Law. 1932, the Organic Law of Court was promulgated. In 1935, the ROC Government promulgated the Code of Civil Procedures. In 1936, the ROC Government promulgated the draft of the Constitution of ROC, which was finalized in 1946. The legal system developed by the ROC continued the Continental Law tradition introduced into China in the Qing Dynasty. Eventually, the ROC Government developed a system of law based on the so-called Six Codes, i.e., the Constitutional Law, the Code of Civil Law, the Code of Criminal Law, the Code of Commercial Law, the Code of Procedure Law, and the Code of Administrative Law and Organic Law. The meaning of “Six Codes” had changed gradually after the ROC Government retreated to Taiwan from Mainland China in 1949. Presently, the Legal system of ROC in Taiwan is still based on the notion of codification, but the strict categorization of the Six Codes appears to have not been followed, or to have been relaxed to meet needs to the reality.

The educational system became relatively stable after 1927 when the ROC Government strengthened its control over China. Legal education in China developed gradually abreast with the development of education system, whilst both were affected badly by the Anti-japanese War taking place in China between 1937 and 1945. according to the statistics available, law schools were established within 29 universities in China in 1931 and the number went up to 35 in 1935. however, the number was reduced to 27 in 1940, probably due to the no-going war between Japan and China. In addition, legal education was also offered in many colleges, which usually took a shorter time to complete than the university level, even though there was no special law school in these colleges. It was estimated that legal education was available in 35 colleges in 1931, in 24 colleges in 1937 and in 53 colleges in 1949. these statistics suggest that legal education was available in China during 1927 and 1949 at both the university level and the college level. It was also estimated that the total of the law students was 14,523 in 1931, was 31,188 in 1937 and 116,504 in 1949. the largest student enrolment appeared in 1947, when a total of 155,039 students enrolled for legal studies in China. The curriculum of legal education in each university and college was largely determined by the relevant university and college. The ROC Government attempted to bring the uniform curriculum to the system of legal education, but only succeeded partially in 1944 when a number of core subjects were agreed upon by the Ministry of Education and the relevant universities and colleges. A typical example of the curriculum of law is seen in Professor Macdonald’s article, which describes the curriculum of the Law Department of Beijing University in the following words:

“First year: Principles of Economics; Constitutional Law; Principles of Civil Law; General History of China; Western History in the Last Hundred Years; Introduction to the Study of Philosophy. Second year: Liabilities; Rights; Company Law; Principles of Criminal Law; Law of Judicial Organisation; Civil Procedure; Principles of Administrative Law; Sociology; Specific Provisions; First Year German. Third Year: Detailed Study of Liabilities; Law of Relatives; Law of Bills; Criminal Procedure; Bankruptcy; Administrative Law; Public International Law; English Law; Chinese Legal History; Military Training. Fourth Year: Law of Inheritance; Commercial Law and maritime Law; Law of Civil Execution; Civil Court Practice; Conflict of Law; Land Law; Labour Legislation: Regulation of Prisons; Political Science; Military Training; Thesis.”

The aforesaid evidence suggests that legal education in China grew slowly from 1927 to 1949, when the Chinese law was gradually merging into the family of Continental Law. However, it must be noted that due to the wartime conditions existing continuously during this period of time, the ROC Government hardly had time to implement the Six Codes and other relevant laws throughout the county. It was nevertheless remarkable that, “in such turbulent times – fifth years of almost continual civil and international strife – the university law departments were able to embark on the demanding enterprise of establishing a scientific legal pedagogy suitable to the needs of the country as a whole.”

Legal Education in P.R.China (II)

Legal Education in China (II)

John Mo and Weidong Lee

II. History of Legal Education

2. Legal Education Prior to the Qing Dynasty

In ancient China, it was arguable whether there was any formal “legal Education”. As one of the oldest civilizations of the world, China has had a long history of education. Certain legal knowledge was taught as part of the culture education which was one of the major criteria for recruiting government of officials in ancient China. In this sense, there was arguable “legal education” in ancient China. On the other hand, only from the late 19^th century, China began to learn Western notions of law, which is characterized by the separation of “law” and political power. Prior to that, the Chinese legal tradition had been characterized by a sophisticated marriage between the politics and law, where the “law” was often used as one of the powerful and determinative means to implement political goal and to maintain political power. In such a sense, there was no “legal education” in ancient China, but there was “political and culture education” which tough people how to manipulate power by relying on a body of norms known as “law”.

Some form of legal education existed during the Spring and Autumn period (770-476 BC) and the Warring States Period (475-221 C), together known as the Spring, Autumn and Warring States Period. During this period of time, for schools of thoughts, i.e., Confucianism, Taoism, Mohism and Legalism, were developed. All these schools recognized the position of “law” in a society, but advocated different ideas and approaches to the establishment of society with law and order. Legal education which meant knowledge on the meaning and the “role” of law in a society was part of the knowledge on the meaning and the “role” of law in a society was part of the knowledge disseminated by all these four schools. It was noted that Mr. Zhen Xi, one of the legalists, not only taught legal knowledge in the Spring and Autumn Period to this pupils, but also assisted others in conducting litigation. Indeed, one of the basic notions of the Legalists during that period of time was to se harsh and punitive “Law” as a powerful tool to control the society and discipline human behaviours.

The development of legal education depended very much on the development of legal system in ancient China. If there were no “law”, there was of course no need to study law. In the Qin Dynasty (221-206 BC), which was the first government in Chinese history to unify the territory of ancient China, the Code of the Qin was created. This Code later because the model for the code of Han Dynasty (206 BC -220 Ad). Both Codes contained largely criminal rules. Code consisting of criminal rules was one of the fundamental features of Chinese legal tradition in ancient China. Because of the development of law code, teaching bureaucrats to understand and enforce the code that became necessary, resulting in the development of legal education in the Qin Dynasty, the Han Dynasty and dynasty thereafter. The unearthed Qin Code carved on bamboo slips contained a chapter which set out requirements and guidance for the bureaucrats and officials to handle various cases. It was believed that this part of the Code taught the bureaucrats and officials about how to enforce law, and thus, it was arguably regarded as the evidence of some form of legal education. Legal education in the Han dynasty grew stronger gradually. It was said that the study of law became a special form of education, which was predominately based on the model of private education offered by individuals, during the Han Dynasty. In some sense, legal education was also a form of family education, or perhaps a form of private knowledge or property; and the legal knowledge of the elder was inherited and developed by his sons and grandsons one generation after another。 Due to such pattern of legal education, three legal families, which later evolved into schools of legal thoughts, came into existence during the Han Dynasty. These were Guo’s Family, Wu’s Family and Chen’s Family. These families became famous, because many family members coming from different generations in each family were appointed as special officials in the government to interpret and enforce law. In this sense, practicing law became more a less a family privilege to them, a scenario which appears to be hard to understand by Western lawyers. This was however possible in ancient China because legal knowledge was part of the culture heritage and essential bureaucratic skills which could be passed from one generation to another within a family. The person equipped with such necessary knowledge and skills would naturally be suitable for the position for which the person was trained.

Legal education became one of the recognized disciplines of national study after the Tang Dynasty (618-907), which represented one of the heydays of ancient China. The Tang Government established a national academy of study known as Guo Zi Jian, which offered six disciplines, such as literature, writing, mathematics and law, to train students chosen carefully by the Government. Legal study was then open to the children of law ranking officials and even ordinary citizens. Most students of legal study were between 18 and 25 years old. The whole course took about six years to complete. The student intake was rather small, ranging between 20 and 50 to total for the whole discipline to legal study during different periods of Tang Dynasty. The Code of Tang was the major subject of legal study then. A similar system of legal study continued in the Song Dynasty (960-1279). However, there appear to have been more students studying law in the Song Dynasty. In addition, legal knowledge was one of the examinable subjects which must be passed by candidates who sought to become governmental officials by way of national examination. It must be noted here that in ancient China, a selection system for the appointment of governmental officials, which was based on uniform examinations held at different levels of the administrative regions, was developed gradually. Many people became governmental officials through less popular today, that hard study guaranties a successful career and bright future. In the Ming Dynasty (1368-1644), the law code became more sophisticated. So did legal study. However, law was not taught as a brutal tool to ensure social control and stability as it was in the Spring and Autumn or Warring States period. Instead, law was taught as supplementary to the Confucianism which sought to ensure social harmony by advocating moral principles of high value. Nevertheless, law was still one of the basic subjects which must be passed successfully by candidates attempting national examination for the appointment of governmental officials.

The status of legal study remained more or less similar during most dynasties in Chinese history until the late 19^th century in the Qing Dynasty (1616-1911). Legal study largely remained to be a privilege and special knowledge for those who were trained to be career bureaucrats. The governments promoted Confucianism as the norms for social behaviors and social order, and applied “law” sanctioned by punishment to low social classes and disobedient groups who would not be persuaded or educated by mental strategies to ensure the survival of the Qing Dynasty. In such background, the modern law reform commenced in China in 1890s, when Western-style legal education and the Continental Law model were introduced into China. As part of the reform movement. “law was placed on the curriculum” of the Beiyang University was known as the First-Class School of the School for Sino-West Studies of Tianjin, which was renamed Beiyang university in 1903. Including law into the curriculum of a formal university was a crucial step for the development of legal education in the Chinese history. However, it must also be noted that the notion of “university” itself was also foreign to the Chinese then. In this sense, the legal education in Chinese history received a formal status in the “educational system” only after the introduction of the Western-style educational system in China, in particular, the establishment of universities.

Professor Macdnonald in his brilliant article “Legal Education in China Today”, which was one of the earliest English literatures devoted to the study of legal education in China, describes the development of legal education in the late years of the Qing Dynasty in the following words:

“From its start in 1898 until 1912, when the Republic of China was founded, the teachers in the Law Department, all of whom were part-time, were officers of the Ching Dynasty, the staff included the minister of justice and the minister of foreign affair. The dean was a full-time minister of the government and the students, a small privileged group, referred to as ‘masters’ by workers, labours, and peasants, were officers of government preparing to assume more specializing duties within the administration. The curriculum including the law of the Ching Dynasty, Roman Law and the Confucian classics. The latter embodied the fundamental rules of human conduct accepted over two thousand years to such an extent that they were often quoted in official documents and invoked in the interpretation of application of law. There was no training for a legal profession as it was understood in the West. There were men known as lawyers who acquired knowledge of law either through self-study or by way of apprenticeship, but to the people in general law was unknown and mysterious. Indeed, the Chinese, especially in their private lives, were traditionally government by ethics rather than law.”

The founding of the Law Department in Peking University was one part of the large law reform movement which was aimed at bringing tradition Chinese law into line with at least some of the basic Western conceptions. In 1904 a Law Codification Commission was established, with European and Japanese advisers, to draft new codes, including civil law, civil procedure, and bankruptcy. In 1907, a European-style Judicature Act was promulgated, separating judicial organs and functions. This was the first attempt to put the courts on a systematic basis in line with Western jurisprudence by dividing them into four classes: the local court, the district court, the high court and the supreme court, with a procuratorate of corresponding rank attached to each of them. Provision was made for professional examinations qualifying persons with university degrees to become judges or procurators. A probationary (articling) period of two years, following graduation from a college of law or political science, became a prerequisite for taking these examinations.

The aforesaid description correctly reflects the development of legal education taking place in the Beijing in the late years of the Qing Dynasty, in particular between 1898 and 1911. The evolution of the law department of Beijing University since 1904 was a typical example of the development of modern legal education in Chinese history. In addition to the Beiking University, legal education was also offered in a number of other Western-style universities established at the end of the 19^th century or the beginning of the 20^th century. For example, legal education was also offered in the Beiyang School of Law and Politics, the law School of Capital City, the Guangdong School of law and politics and Jiangxi School of law and politics. It appears that at the beginning of 20^th century, the Qing Government placed a considerable emphasis on the development of modern legal education in China. As a consequence, between 25 and 47 law schools or institutes of politics and law were established between 1904 and 1909 at both the level of central and local governments. The establishment of these law schools and institutes was the inevitable result of the legal reform introduced by the Qing government since 1898, through which the Continental law tradition was introduced into China. The curricula of these schools, institutes and universities largely consisted of new codes of Qing, foreign languages, Chinese legal history, foreign laws, foreign history, economics, ethics, and politics. Most schools, institutes and universities decided their own curriculum, but they all followed the relevant Western models of legal education. To effect such curricula, most teachers had to be either foreign educated Chinese or foreigners. The adoption of Continental law style codes and the introduction of Western-style legal education in the later years of the Qing Dynasty formed a new foundation of legal education in China, which continued in Mainland China till 1949 when the Communist People’s Republic of China was established.

It must be pointed out here that most of these schools and institute bore the title of “schools of law and politics”. Such combination of “law and politics reflects one the earlier and fundamental Chinese understandings of “law” or the role of law in a society. Such understanding had affected or ever dominated the development of legal education in China until 1978 when China adopted the open-door policy, which has led to a fundamental legal reform in China.

本Blog由China Law Blog更名为China Lawyer Blog

本Blog由China Law Blog更名为China Lawyer Blog.

本Blog名字由最初设立的China Law Blog更改为China Lawyer Blog. 因为前几天收到Dan Harris在本Blog的留言，说明China Law Blog与他们起的名字重复，请求本Blog改名。

收到Dan Harris的留言后，首先感谢他对本Blog的访问和关心；其次他提出了一个在当今Blog领域普遍面临的法律问题，即对每个Blog如何命名的问题，法律如何保护?能不能纳入到商标的保护范围？我曾与一些业内人士讨论过，他们有的人认为Web 2的时代是个性化的互联网时代，每个人都可以拥有自己的Blog，只要你选择的Blog服务商愿意接受你选择的名字就可以；就象每个人都有自己的名字，不能是别人用了，其他人就不能用，世界上重名重姓的人非常多，中国有重名的现象，国外也有重名的现象；Blog也一样，重名现象是不足为奇的，关键要看个人所属的Blog更能表达作者的意图，它同商标的保护是不一样的，否则会阻碍Web 2的发展。

感谢Dan Harris 提出此问题，这可以给我们提供一个讨论这方面法律问题的机会。同时，我也决定将本Blog由China Law Blog更名为China Lawyer Blog。

Measures Concerning Protection of exhibition Intellectual Property Right in China

Measures Concerning Protection of exhibition Intellectual Property Right in China

China Measures Concerning Protection of Exhibition Intellectual Property Rights shall come into effect as of March 1, 2006.

According to this regulation, the sponsor of the exhibition has right to set up and maintain an Intellectual Property Right Complaining Body (hereinafter Body) in the period of exhibition. The Body can accept the complaints from owners of IP rights and to suspend the show in the period of exhibition, of the exhibitions which are suspected of infringe upon IP rights. The owner shall submit the following materials when he made the complaining to the Body: (1) the valid proprietary certificate; (2) the basis information of the concerned party who is suspected of tort; (3) the reasons and evidence of the suspected tort. In case that an infringement upon the relevant rights committed by the participant of an exhibition is constituted, administrative authority of exhibition may publicize the concerned participant according to law; if a participant infringes upon the relevant rights for two consecutive times, the sponsor shall prohibit it from participate the next exhibition.

Legal Education in the PRC (1)

Legal Education in the PRC (1)

John Mo and Weidong Li

(This article was published at Journal of the History of International Law Volume 4, Number 1, 2002)

(Dr. John Mo, Professor, China Politics and Law University; Barrister and Solicitor in Victoria, Australia)

I. Introduction

China is a truly amazing country. It has one of the world’s oldest civilizations, the world’s largest population by any single country, the fastest growing economy of the world’s large countries and the shortest history of any true legal systems in the world’s leading powers today. However, China has an independent and comprehensive legal system, which has been growing towards maturity at an amazing pace. Though the rule of law in China has not reached a satisfactory and reasonable standard as accepted in most industrialized countries, China has begun to court with the notion of rule of law. No doubt, China is becoming a country where the rule of law will sooner or later replace the rule by man, even though the Western notion of rule of law is always hard to accept by many Chinese politicians who often feel uncomfortable to be fettered by the legal rules created by man.

Legal education is one the crucial aspects of rule of law. Legal education should prepare and qualify thousands of lawyers, judges, procurators, government officials and employee, business people, professional and ordinary citizens from all walk of life for a modern society based on the rule of law. It should also provide breeding grounds for new and creative ideas promoting legal researches and law reform, or shaping a new Chinese legal system combining Western notions of rule of law and Chinese characteristic which are compatible with the notion of rule of law. Legal education is also important to provide an opportunity for thousands of young Chinese to realize their dreams of pursuing a career in law and for thousands of professionals to gain continued legal educations to ensure the standard of their professionalism. Therefore, it is important to investigate the present structure and state of legal education in China.

This article purports to examine the present structure and state of legal education from several respects. First, the history of legal education will be examined. A study of the history is essential for understanding the present existence of legal education in China and its connection with the history. Secondly, the present system of legal education will be examined. This part deals mainly with the structure of the legal education. Thirdly, the curriculum of legal education will be investigated for the purpose of revealing the scope of the knowledge to be offered to law students in China. Fourthly, the composition and qualifications of law teachers will be examined. This is important to understand the qualify of legal education and to appreciate the past, existing and future impacts of legal education on legal development in China. Fifthly, the relationship between legal education and legal practice will be reviewed. The emphasis will be placed on the role of legal education to provide legal professionals, such as lawyers, judges, procurators and government officials today. Sixthly, the relationship between legal education and legal research will be reviewed to ascertain the inter-reaction between them. Lastly, the exchange of legal education between Chinese universities and foreign universities will be examined to assess the role of foreign legal exchange in the development of a new legal educational system in China today. A conclusion will follow at the end of the article to summarize the major points of the foregoing discussion, and to make a number of suggestions for the reform of legal education in China.

II. History of Legal Education

1. Defining Legal Education in Chinese History

Chinese legal tradition used to be regarded as one of the major legal traditions of the world. However, the proposition of “Chinese legal tradition” may be as fallacious as the expression “history of legal education” in China. Very much depending on the definition of “legal education”, it is arguable whether there was anything which may be regarded as “legal education” in ancient China at all. This is because one of most important features of Chinese legal tradition prior to the early 20^th Century, when the last of the Qing Dynasty (1616-1911 AD) was overthrown by the Revolutionists who had been education by Western ideology of law, politics and democracy, was that the law and politics were blended into the same compartment of culture known as the “skills and technique” to rule a society. As Professor Tay observed that “China, the conventional wisdom has it, is not and has never been a law-oriented culture.” Indeed, the law was taught as part of the culture, wisdom and essential skills to administer the government and to run the society. It was one of the knowledge components or of qualifications which made a competent Mandarin or government official. The ability to understand and interpret the law was as important and essential as one’s ability to read and write Chinese poems and prose, but not necessarily more important, unless the person was appointed as special judicial officer, a position created from time to time in various dynasties of ancient China. However, it must be noted that even the special judicial officers were never totally independent from the government administration. In fact, they were appointed as the ordinary government officials and could be removed in the same way as other government officiates and could be removed in the same way as other government officials. This is the background against which “legal education” existed in ancient China.

The history of legal education must be studies in its own unique context. There was “law” in China for thousands years. In this sense, the history of law in China was as ancient as the history of Chinese civilization itself. However, the ancient Chinese law was not the “law” in Western sense, in particular after the 17^th century, when the revolutionary notion of equality between people and judicial independence gradually took shape in the Western culture. Law was a culture, politics and philosophy in ancient China. The study of law was not much different from studying culture, politics and philosophy. This is the context in which the history of legal education should be examined carefully and objectively. (To be continued)

中国基金的折价交易为哪般

（最近几年，中国证券市场的低迷，证券公司的行业亏损，基金管理公司的工作人员成为市场的宠儿。中国的基金公司的确是事实上和法律上的宠儿吗？本文最早发表于2000年5月，那时中国的基金法还没有出台，现投资基金法已于２００３年１０月２８日第十届全国人民代表大会常务委员会第五次会议通过。结合现状，笔者对原文章作了部分的文字修改。）

在2000年，中国封闭型的证券投资基金经过2年多的运作，在规模上取得了引入瞩目的成就，但同时也遇到了一些问题，例如基金折价交易的现象，2000年3月2日，15只新基金折价比例在10％以上，有人认为这是好东西卖不出去，投资者不识货。但笔者认为投资者是市场的最终决定者，折价现象的出现，不是投资者不识货，而是投资基金本身治理结构存在一定的立法缺陷。

中国证券投资基金治理模式

中国的投资基金是以契约型投资基金作为中国证券投资基金的治理模式，即通过发行基金单位而组建投资基金。由基金发起人代表投资者与基金管理公司、基金托管人签订信托契约，委托基金管理公司对基金资产进行运作；基金托管人对基金资产进行保管，并对基金管理人的行为进行监督。
这种模式产生的现实后果是，证券投资基金持有人大会很难有效的召开；董事会的召开也不尽人意；普通投资者无法决定基金的管理人，也无法对基金管理费用提出异议；从而变成了基金发起人和基金管理公司利用很少的资本控制了巨大的资金，其中当然会给关联人带来一定的经济利益。

认识的误区

国内很多专家在探讨投资基金的治理结构时，主要集中在如何完善基金管理公司内部的法人治理结构，即如何建立基金管理公司的董事会、董事、独立董事、经理以及监事之间的制衡关系，以达到保护基金投资者的利益。可这并不能代替投资基金本身的治理结构。

笔者认为，中国投资基金的治理结构忽视了几个重要因素：第一、中国基金法的框架是主要参考香港的《共同基金和单位信托准则》，但立法者忽视了香港立法的着重点是对基金管理公司、基金托管人行为行为的规范，而不是强调基金的组织形式。因为在香港上市的基金可以是公司型的投资基金，也可以是契约型投资基金（单位信托），并且这些基金大部分是海外注册，他们在香港上市的条件是得到香港证监会的许可。所以香港法例从实际出发是无法规定海外基金的治理模式；第二，香港的法律体系是普通法，普通法体系有悠久的信托法历史，几百年关于信托法律的判例和成文法已形成了完善的信托法律系统。而在中国，没有海外的投资基金在大陆上市或出售；其次，中国大陆的信托法才有几年的历史，在司法实践中如何适用信托法，还存在一定的分歧，这样如何运用信托法保护投资者的权利，还存在一定的难题，并且大陆没有信托的传统。

美国共同基金的治理模式

在世界上，投资基金通常称为共同基金，它是一种投资工具，从公众中筹措资金后再投资于证券市场。根据投资基金的治理结构可以分为公司型的（美国模式）和契约式的（德国、日本和英国模式）。美国是世界上投资基金最发达的国家，其投资基金的资产规模已超过商业银行的资产额。他的总资产额占了全世界投资基金的2/3。在美国，虽然法律没有规定共同基金一定要以公司的结构成立，但绝大多数共同基金都采取公司制，引用公司制的管理模式对基金进行管理。这种模式已经赢得了广大投资者的信心，成为美国共同基金重要的基础。

为什么美国认会改变投资观念，而投资于基金？因为美国老百姓已经不把投资基金看成是一个简单的公司或信托，而更看重的是投资基金有董事会、并且独立董事占了大多数，再加上完备的信息披露制度。这些完备的保障制度才使投资者把储蓄的钱投资向基金。

投资基金与其他公司不同的一个显著特点是其本身没有雇员，他的操作模式都是由董事会或基金发起人聘请的基金经理进行的，而基金经理和基金的发起人又有千丝万缕的联系，这样的结构不可避免会产生基金持有人的利益有所冲突。因此美国的《1940年投资公司法》及《1970投资公司法修正案》确定了投资基金的董事会监督基金经理的操作；其中董事会中的独立董事至少占董事人数的60％，在保护投资者利益方面具有独立性；董事由基金持有人大选举产生；同时赋予基金持有人对于一些事项的投票权，也赋予基金持有人对基金经理的服务费有异议的，可以寻求司法救助。这些规定赢得美国的投资者信任，使得投资基金的规模不断壮大，并带动了美国经济持续发展。

所以，笔者认为中国的投资基金立法，应该参考投资基金发达国家和地区的立法经验，建立科学的符合中国国情的投资基金本身治理制度，赢得投资者的信心。这样才能使得中国投资基金能够持续而健康地发展。

QQ Thieves Get Six Months in Prison

QQ Thieves Get Six Months in Prison

In Jan 13, 2006, two young men have been convicted of interfering with internet user’s communication rights by a Nanshen district court, Shenzhen, China.
The Shenzhen Nanshan People’s Court has held a hearing in the country’s first case involving stolen QQ numbers.
The two convicts surnamed Yang and Zeng have each been sentenced to 6 months in prison. Illicitly acquired funds, totaling 61650 yuan, or about 7640 US dollars, has been retrieved by authorities.
QQ is the most popular instant messaging computer program in China. It is released by Tencent Inc. Mr. Zeng joined Tencent on May 31, 2004, and was later moved to the security center to monitor the company’s operating system.
On March 2005, he met Yang via the internet after buying a QQ number from him. The pair then plotted an illegal business making money selling stolen QQ numbers.
Zeng decoded a former colleague’s password, giving him access QQ user’s private information including personal data, ID numbers and e-mail addresses. He then broke into Tencent’s main system. Using the information provided by Zeng, Yang decoded user’s seemingly theft proof information and changed their QQ passwords.
From March to July of last year, they had sold nearly 130 QQ numbers after stealing them from unknowing users.
As the court held that a QQ account is not property as defined by China’s current law, two men were charged with severely infringing with others communication rights. Zeng and Yang pleaded guilty to the charges.

The New China Company Law

The New China Company Law takes effect on Jan. 01, 2006. The amended China company law has revised certain regulations concerning establishment and capital system of a company, reduced the minimum registered capital of a company and thus relaxed the threshold of establishment. In addition, it has expanded the coverage of property a shareholder is allowed to invest in a company. The new Company Law has included “one-person” company, allowing one natural person or legal person to set up a one-person corporation. While regulating “one-person” companies, the law provides convenience to establishment of a company in terms of systems, thus being conducive to encouraging investment and venture, boosting economic development and expanding employment.

In order to encourage investment and venture, the amended Company Law has supplied certain provisions to protect the interests of shareholders, especially small shareholders. For example, with regard to the right to be informed, shareholders are permitted to check their companies’ financial accounts.

The amended Company Law has formulated necessary systems to prevent risks, ensure trading safety, safeguard corporate creditors’ interests and maintain social economic order.

China Legislature Abolishes Agricultural Tax

 China Legislature Abolishes Agricultural Tax

China’s 2,600-year-old agricultural tax will be rescinded as of Jan. 1, 2006, after China’s top legislature voted on 22 Dec. 2005 to adopt a motion on the regulations revoking the agricultural tax.

The motion with only 94 Chinese characters was voted favorably by 162 lawmakers and abstained by one.

From that time, agricultural tax has existed for 2,600 years in China with dominant rural economy. During the more than 2,000 years, agricultural tax was always the main source of the country’s coffer.

The abolition of the agricultural tax demonstrates that industry has outgrown agriculture to some extent along with the country’s economic development. And the country enters into a new era of “industry subsidizing agriculture”.

In my view, this regulation gives a great benefits to Chinese farmers and narrows the gap between city and countryside. I support it.

遭遇专利诉讼 深圳“台电”对垒德国“博世”

（我作为深圳台电公司的法律顾问代理此案，一年来多次往返中德之间，同德国多家律师所及法律界人士讨论案情，对此文的理解更加深刻。胡大哥的文字很有说服力。 ）

我国企业首次在德国法兰克福应诉市场份额占据全球第一的行业巨头遭遇专利诉讼　深圳“台电”对垒德国“博世”
人民日报记者　胡谋

　12 月7日，记者在深圳台电实业有限公司（下文简称“台电”）看到：公司总经理面前散放着许多文件，正和公司常年法律顾问商讨如何应对与德国罗伯特· 博世公司（下文简称“博世”）一场跨国官司的二审…… 10月25日，德国法兰克福地方法院认定“台电”的E系列产品侵犯了“博世”的外观专利权，“台电”在法兰克福陷入“专利陷阱”，迅即提出申诉。早在4月 7日的德国法兰克福国际专业灯光音响博览会上，法兰克福地方法院就向深圳市“台电”送达了临时执行令，称德国“博世”公司诉“台电”的E系列数字会议系统产品侵犯其外观专利权，让“台电”的E系列数字会议系统产品撤展。告你，是因为你长大了在联合国等机构召开的重要会议，“博世”发现，能够与自己分庭抗礼的只有来自中国的“台电” 近年来，德国品牌“博世”一直占据着数字会议系统市场份额全球第一的位置。 2003年，第二届非洲联盟首脑会议的300席最新数字会议表决系统和1200席6通道语言分配系统，却标明着制造商：中国TAIDEN（台电）。 2004 年7月，在吉隆坡国际展览中心PALA展览会上，“台电”和“博世”的展台“背靠背”。“博世”展出的最高端、最新的数字会议系统，同声传译刚由16通道提升到32通道，而“台电”数字会议系统的同声传译已实现64通道。“台电”的产品广告开始走进德国的权威专业杂志，而德国是当今数字会议系统世界知名品牌的主要集中地。在联合国的重要会议、在世界银行和国际货币基金组织年会、在第三十八届东盟外长会议、在第十二届亚太经合组织（APEC）首脑会议，“博世”发现，能够真正与自己分庭抗礼的只有来自中国的“台电”。台电公司市场总监周庆东说，“台电”产品的性能明显领先，产品打到了竞争对手的家门口，才遭遇“诉讼陷阱”———对方目的不是维权，而是借此把你撵出德国市场。中华全国律师协会知识产权委员会副主任温旭得知这场诉讼后，对“台电”人说，你长大了，对它构成了市场威胁，去年创造了400亿欧元销售收入的“博世”才会与你对簿公堂。 告你，你就得保护自己 “台电”目前已在包括德国在内的85个国家和地区注册了商标和有关技术专利 4月7日，博览会第二天，法兰克福地方法院便给了“台电”一个措手不及。几乎同时，当地报纸用整版篇幅，报道“来自中国的仿冒产品”。 “台电”人被激怒了，要在竞争对手的家门口辩个是非曲直。德国一家著名的律师事务所同意为“台电”代理此案。 9月7日，“台电”和“博世”有争议的数字会议系统单元一起摆上法兰克福地方法院的法庭。无论是线条、对称等基本要素，还是图案、形态等特色构思，双方的产品都有着明显差异。事实上，“台电”的这一款机型2004年就已分别在中国和欧盟申请并取得了外观设计专利证书。“台电”还向法庭证明：去年8月，“博世”曾为外观侵权致函 “台电”。在“台电”公司的律师回函说明情况后，“博世”请求撤回致函，并向“台电”致歉。据悉，“台电”目前已在包括德国在内的85个国家和地区注册了自己的商标和有关技术专利。法兰克福展览公司的一位官员说，每年都有许多中国企业在法兰克福遭遇到类似的壁垒和陷阱，“台电”是第一个敢于在法兰克福应诉专利官司的中国企业。告你，说明你还不够大要“大”到拥有专利信息体系和数据库、及时发出预警，运用多种手段冲破“壁垒”，就会主动尽管“台电”理直气壮、尽管德国律师认为“中国人有着充分的理由”，但法兰克福地方法院仍然认定：“台电”的E系列产品侵犯了“博世”的外观专利权。同时，“博世”向欧盟申请撤销对“台电”产品的外观专利保护。 10月25日，“台电”在收到法兰克福地方法院的判决文书，并得知“博世”向欧盟提出申请后，迅即提出申诉。为举证忙碌的“台电”人发现，面对专利壁垒和市场谋略，自己应对的手段仅仅只是被动地“据理力争”。 “台电”人终于明白了满群（广州三环专利代理有限公司深圳分公司负责人，知识产权专家）“说明你还不够大”的意思：尽管产品外观在设计之初曾向国内多名知识产权专家咨询过，但如果“大”到拥有自己的专利信息体系和数据库、及时发出专利预警，就大大增加了主动避开专利壁垒的可能；如果“大”到能够运用多种手段冲破专利壁垒，不仅能使自己摆脱诉讼陷阱，甚至能在法庭上与竞争对手“换位”。满群说，中国企业如果真的够“大”，竞争对手或许就不会采用“诉讼陷阱” 的手段了。 告你，却让你成了赢家 “专利诉讼”反而让客户了解产品性能，让看重性能的客户做出客观选择世界品牌为中国企业设置的专利壁垒，几乎都是核心技术；近年世界品牌与国内企业的专利诉讼焦点，也几乎都是围绕核心技术。但是，“博世”与“台电”的专利诉讼却在产品外观。业内人士认为，中国“台电”的数字会议系统产品拥有领先世界的技术，是目前世界上有线同声传译语种最多的数字会议系统制造商。“台电”研制出世界第一套不受节能灯干扰的红外同声传译系统；最早提出了会议系统与中控系统无缝连接的概念，并推出全球第一个基于“无缝连接”技术的智能会议系统；独创出复合IC卡会议签到技术、多房间配置等具有实用功能的专利技术。产品外观的专利诉讼，让客户从另一个角度了解“台电”的产品性能；产品外观的专利诉讼，让更看重产品性能的客户选择了“台电”。今年7月，北京朝核第四轮六方会谈会场。6个国家、5种语言、24位翻译，场面热烈隆重。承办会议的北京钓鱼台国宾馆经过对“博世”、“索尼”、“台电” 等品牌的数字会议系统进行音质、故障率、易用性指标的考核，最终选择了“台电”。链接中国企业海外参展受阻在一定程度上已成趋势，试举一二：在纽约举行纺织品与贸易服装展览会时，中国参展团拿到了邀请函，却有一半人被拒签；在法兰克福消费品展上，中国企业全部被安排在偏僻的副馆；每年都盛情邀请中国内地企业的德国白色家电和黑色家电展览会，从去年开始中国企业却订不到展位了，但一些有香港背景的内地企业以香港公司的名义却顺利拿到了展位…… （据《环球时报》报道） 《人民日报》 (2005年12月08日 第五版)

Logistics and Protection of Fund Investors

本文章最早发表于香港生产力促进局的《物流管理》杂志2004年1月刊，中英文，作者为 Rajesh Sharma先生和本人。Rajesh Sharma为Principle Legal Advisor of iSinolaw Limited。

Logistics and Protection of Fund Investors
LI Weidong, Rajesh Sharma

The logistic industries of Hong Kong have received another boost with the signing of closer economic partnership arrangement (CEPA) between china and Hong Kong. Under CEPA, China has made specific commitments to Hong Kong service suppliers to provide, in the form of wholly-owned operations, logistics services in the Mainland, which include road transport, storage and warehousing, loading and unloading, value adding processing, packaging, delivery and related information and consultancy services for ordinary road freight; freight transport agency services within the Mainland; and the management and operation logistics services through computing network. Due to the operation of CEPA , Hong Kong logistics industries will be the first mover in the vast Chinese market. Under WTO, in China, for example, establishment of foreign majority ownership and foreign owned subsidiaries for storage and warehouse services will take three to six years from the date of accession. Therefore, Hong Kong logistics service providers will reap the benefit before other member countries of WTO. The saga of the growth of logistics services of Hong Kong started with the Chinese accession to the WTO, which was followed by the initiation of the foreign investment in this service sector, and an extra impetus was added from CEPA. It is expected that logistics companies may attract public investment, which in turn will require listing and protection of investors including fund investors. The Law of Securities Investment Fund, to be effective as of June 1, 2004, may be relevant in this regard for the logistics companies. The capital for securities investment fund are usually collected through selling the amount of investment to public and, the independent fund manager and the trustee have to manage this fund through a comb8ination of investments for benefit of fund holders. This fund’s asset is separated from the assets of fund manager or the trustee. For the purpose of assisting the fund investors to obtain a good economic return, the Law requires the establishment of fund managing company to act as a fund manager, which is responsible to manage the assets of fund. On the other hand, the trustee, under the law, shall be a qualified bank, which protects the assets of the fund. Trustee also supervises whether the fund manager did or did not commit any acts, which directly damage the investor’s interest. Hence, if the fund manager or the trustee manages or employs the assets of investment fund, they must discharge their duties with due diligence and in good faith. Accordingly, the purpose of Law on Securities Investment Fund is for the protection of investor’s benefit and the increase of investor’s confident and hence, encouraging a health development in the securities investment industry. According to the Law, to establish a fund managing company, it must have paid-up capital in cash with a value of no less than RMB 100 million. The major shareholder must have good operation results and has reputation in the areas of securities operations, securities investment consultancy, trust asset management and other financial asset management. The majority shareholders should not be convicted for any violation of law in the last three years and have the registered capital of not less than RMB 300 million. To protect the investors’ legitimate benefits sufficiently, the Law has stipulated the rules of fund holders general meeting. The fund holders could take decisions on essential issues in the fund holders general meeting. The investors exercise the power to supervise the fund manager through the fund holders general meeting. Under the Law, investors in the general meeting are entitled to vote for or against on the issuers raised in the meeting. The fund manager, generally, calls upon the fund holders general meeting; if the fund manager failed to call for a general meeting, the trustee is empowered to do so. Also, the fund holders can call for a general meeting if and only if the fund holders representing 10% of more, worth of fund shares, concerned about the same subject. The fund holders’ general meeting may only be conducted if the holders of the fund shares representing 50% or more are present. Any resolution in the general meeting may be adapted by ordinary resolution i.e. 50% of votes. Nevertheless, the termination of contract for trust fund, changing of fund manager or changing of trustee and changing of operation method requires two third of the votes. For the benefit of ensuring investors and for the safety of its assets, the bank has to follow the instruction of fund managers. Nonetheless, it has the power to refuse the instruction. Under the law, if the trustee discovered that the fund manager is acting beyond the authority of law or to the regulations, or breaching the terms of contract, they should report to the fund manager and the securities commission of the state council. It the trustee discovered that the fund manage, who follows the trading process and has already initiated the investment order, is acting beyond the authority of law or other regulation, or breaching the terms of contracts, it should report to the CSRC. At the same time, the law stats that while discharging their duties, if the trustee and fund manager engage in any illegal activity as prescribed under this law or breach of contract, which cause any financial loss to the fund holders, they should be responsible for their individual behavior. The fund manager and the fund trustee will be jointly and severally liable for their illegal act, which caused financial loss to the fund holders. There qualified investment banks in China are: industrial and commercial bank of china, agricultural bank of china, bank of china, construction bank of china, and bank of communication. All assets of securities investment fund in China are entrusted to these eight banks. To promote independence of investment fund and preventing the relevant people from abusing the use of the fund’s assets, the law states that (1) the trustees and the fund mangers must set accounts separately from the entrusted fund assets; they must set aside the company profits from his her personal asset; (2)the profits form the trustees and the fund manager through the control, employment or other circumstances should be included as the assets of securities investment fund; (3) because of reasons such as dismissal or disqualification or bankruptcy, the trustees and the fund managers must follow the relevant law to clear the accounts and the assets of investment fund should not be included within the assets under insolvency; (4) personal liability must be separated form the company’s account clearance; and (5) liability not from the fund’s liability should not be paid from the fund. If there are no restrictions on the securities investment fund, the fund manager or trustees will have huge amount of capital from the fund and they may exercise the investment randomly, warranty unmindfully, involve in corruption and cause financial risk easily. Therefore, the law has strict regulations on investment assets. For instances, the law states that the investment fund must not be employ (1) for underwriting securities; (2) as a loan or warranties to other person; (3) engaging in investments with unlimited liability; (4) purchasing and selling of other securities investment fund other than the one authorized by the State Council; (5) contributing to their fund managers or purchasing and selling shares or securities issued by the fund manager or the fund trustees; (6) purchasing and selling from the fund manager or the trustee who has a substantial share holding relationship or having other substantial interests relationship with the company which issued the securities or which underwrites securities (during the period of underwriting); and (7) conduct any insider trading, price controlling or other illegal activities. The logistics companies, if decides to raise or mange capital though funds then the Law will protect the interest of the investors and shareholders. A safe and sound system in China will further enhance the competitiveness and professionalism in this service sector. Rajesh Sharma, Principle Legal Advisor of iSinolaw Limited.

胜利股份股权之争的思考

本文最早发表于2000年4月，《大鹏证券》，现大鹏证券已破产清算，愿以此文纪念当年大鹏最辉煌之时期）

胜利股份股权之争的思考

最近胜利股份的第二大股东广州通百惠服务有限公司分别在三大证券报及互联网上刊登广告，征求广大投资者的意见，希望采取代理表决权（Proxy Solicitation）的方式达到对胜利股份的控制权。如果通百惠成功的话，这不仅大幅度地降低了收购兼并成本，更能让普通投资者认识到自己的价值， 从而珍惜自己的权利，同时也会给证券公司一定的启发，就是可以开展股东的代理表决权业务，从而增加自身的资源。本文就此相业务提出初步的设想及法律意见， 以供参考。代理表决权制度在西方很风行及完善，每年到股东大会召开前夕，各个公司的代理表决权的委托书就会满天飞，一些大的股东为了能够掌握公司的控制 权，就积极地向广大投资者推销自己，宣扬自己能忠实地代表投资者，促进公司的业务的发展，保护投资者的利益，希望中小投资者能委托他在股东大会上表决；有 时在收购兼并中，一些兼并者也会运用这一制度来达到控制公司的目的。另外，由于国外股票登记制度的原因，一些股票不是以投资者本身的名义登记的，一些股票 是登记在证券经纪商的名下，这时一些大股东不是以投资者本身的名义登记的，一些股票是登记在证券经纪商的名下，这时一些大股东就会千方百计拉拢那些取得代 理表决权的证券经纪商，希望得到他们的支持。从某种程度上讲，谁取得了股东的代理表决权，谁就占有了一定的社会资源。我国由于股票登记都是以真名登记的， 并且过去上市公司的股东大会和一些收购兼并的活动往往都忽视中小投资者，一些大股东根本看不起小股东的表决权的。但随着我国证券市场的发展，股份将会逐渐 分化，投资者的自我权利意识也会增强。当国有股和法人股可以流通时，谁掌握了代理表决权，谁就掌握了一定的社会资源。所以证券公司现可以开展代理表决权业 务，以先走一步，打下基础。我们认为证券公司开展代理表决权的义务可以分为三部分，第一部分取得广大股东的代理表决权，尤其是在本证券公司交易的投资者， 作为广大股民在上市公司的代言人，保护中小投资者的利益，这样可以密切证券公司与广大股民之间的关系，成为他们利益的关心者，并且在取得一般股东代理表决 权时，也增加了自身的资源；第二部分可以接受一些大股东的委托，收集中小股东的表决权，因为证券公司有遍布全国的营业点，并且投资者买卖股票都是在证券公 司，这一点是一些大股东无法做到的；第三方面是证券公司的投资银行部门在公司作收购兼并的策划中，可以采用代理表决权之制度，从而降低收购成本。代理表决 权制度是保护投资者的一相重要制度，国内外的法律对此都是持肯定的态度。例如美国的（1934年证券交易法）第14节明确规定股东可以委托代理人在股东大 会上行使代理表决权。法院在Mill v. Electric—Lite Co.（396 U.S.375,381）案的判词中也明确阐述“通过对某些具体事项的授权委托，能充分表达股东对此问题的真实意思，从而能够确保了股东自由行使表决 权”。根据（1934年证券交易法）第14节的规定，代理表决权可以授予给其他股东、也可以授予给其他有关联之人。至于代理表决权是否买卖，美国法律对此 有争论。虽然很多法官在很多判例中都认为买卖代理表决权有损公共利益，但有一些判例确对认为代理表决权可以买卖。在 Schreiber v. Carney(Del.ch.1982)案中，法官认为“有效地交易在于是否体现了相对的公平”，法院最后判断此案中的股东同意放弃反对公司合并的表决权 以换取兼并者对公司贷款的交易是有效的。我国的《证券法》及证监会对代理表决权没有做出明晰的规定，但我国的《公司法》第108条规定：“股东可以委托代 理人出席股东大会，代理人应当向公司提交股东授权委托书，并在授权范围内行使表决权。”从而肯定了在我国代理表决权的合法化。虽然对如何行使代理表决权方 面，政府的职能部门对此没有细化。但证券公司从事代理股东行使表决权是有合法的提前，证券公司只要在具体的操作中做到不向当事人隐瞒真实情况，欺诈当事 人，这种代理活动是有效的，并受到法律保护的。

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