MGMT6018 Business Law & Contexts: Legal Structure Of China

Legal structure

China

Australia

Legislative system

The legal system of China is based on the socialist system and certain civil law model can be observed in this country. According to the statement of People’s Republic of China, China follows the socialist legal system. The apex legal provision in China is the constitution. The present version of the constitution has been adopted in the year 1982 and after that, the constitution has been amended for several times (Chow, 2015). According to the legal definition of the rule of law, it applies to restrict the power that has been exercised arbitrarily. However, in China, any protest against the government is considered as arbitrary. In 2004, a democratic protest has been made in Hong Kong against the policies of the government. This protest has been renam

Australian legal system reflects a parliamentary democratic system. Federal system can be observed in that country. It means the power is divided between one national government and six states. The states are self-governing states and the judges are depending on the precedents. Unlike the South Africa, the legal system of Australia does not reflect the mixed legal system; however, the major part of the legal jurisprudence has been adopted from the English Legal System.

rule of law

The definition of rule of law is quite different compared to the rule of law in China. In the west, government and other institutions are coming within the purview of the rule of law. However, according to the Chinese custom, Communist party is situated above the law and the principle of rule of law will not be applied on them. In the earlier statement, it has been observed that in China, there is no freedom of judicial decision and it has made the process unfair. However, certain assurance have been given by Xi Jinping that fairness in judicial decision will be established in China. China has introduced certain anticorruption campaigns to promote the rule of law. Under the system, the government has maintained the principle of equality so that no class get additional privileges. According to Article 5 of the Chinese constitution, the ultimate aim of the rule of law is to build an appropriate socialist rule. The rule of law is maintaining to strengthen the legal system of China.

Australian rule of law follows the Western pattern and it has been observed that all the citizens including the government have the responsibilities to abide by the principle of law. The jurisprudential system of Australia is quite liberal from its executive branch and the process of dispute settlement is quite fair and clear. The supportive mentality of the government to protect the interest of the people and promote the idea of rule of law is quite effective compared to China.   

Court system

The judicial system of China is not a part of the state structure and it is a part of three branches of the government. The principle of separation of power is not allowed by the constitution and the People’s assembly controls the courts in China. However, every court is required to make decisions separately.  The court system of China is divided into four stages such as grassroots, intermediate, higher and supreme people’s court. Apart from this, there are certain special courts such as military court, maritime court, railway transportation court and forestry court.

A separation of power can be observed under the Australian court system. The High Court of Australia is the apex court in Australia and it deals with the matters of federal and state law. The Australian Constitution has empowered the federal judicial power to the High Court of Australia. Apart from this, there are certain State Supreme Courts presents that deals with the state cases. Apart from the Supreme Courts, family courts and the federal courts are also there to resolve the dispute of Australia. The High Courts of Australia has limited powers for try a case and all the courts are dealing with the matters by following the common law and equity. The Supreme Courts and the Federal Courts of Australia deal the territorial matters. The family disputes are dealt by the Family Courts in Australia and the provisions of Family Law Act 1975 has been followed in this case. Certain cases like admiralty law, administrative law, copyrights, human rights, industrial law and migration are processed in the Federal Circuit Court of Australia. Further, there are certain tribunals acting like court to certain territories of Australia.

diagrams of court

Supreme Peoples’ Court—Local peoples’ Court (Higher, Intermediate and Grass root)—Special Peoples’ court

High Court of Australia--- State Supreme Courts--- Federal Courts---Family courts--- Federal Circuit Court of Australia---Tribunals

Contract Law

China

Australia

Formation

Chapter 2 of the Chinese Contract Act, certain processes are required to be followed  for the formation of contract. According to Article 9, each party should have the capacity to enter into a civil contract (Turner et al., 2015). Further, an agent can be appointed in the favour of any party to the contract. Under the Chinese law, written and oral, both kinds of contracts are acceptable. There are certain terms of the contract mentioned under Article 12 of the Act. Every contract has been formed after the acceptance of an offer. Appropriate conditions have been mentioned under Article 13 of the Act.

The Australian contract law depends on the English Legal system and it is governed by the common law. There are certain essentials regarding the formation of the contract in Australia as follows:

· There should be certain promises made by the parties to the contract. However, the nature of the promise or the agreement should not be unilateral.

· Certain bargaining process can be observed in contract and therefore, consideration is necessary in this case. The term consideration may include money, property or other services.

· The parties to the contract should have certain capacities to enter into the contract. Capacity means the parties should be of sound minded and they must attain the legal age.

· There should be a common intention in between the parties to be bound by the terms of the contract and each of the party should reveal their consent in that case.

· The terms and conditions of the contract should be certain and clear.

Elements

Certain differences are made in case of the contract law of China. It has been observed that the main purpose of the contract law is to protect the rights and interest of the contractual parties and maintain social and economic orders. According to Article 2 of the Act, contract is signed in between two or more natural person and certain civil rights and obligations are established in this case. Certain elements have been prescribed under the law. According to Article 3 of the Act, each contracting party will enjoy equal rights in the contract and no one should get more benefit from the agreement (Leng & Wei, 2017). Further, a party should enter into the contract with his or her own consent and no one could force him for that. This rule has been mentioned in Article 4 of the Act. One of the most important essential of the contractual agreement is to maintaining fairness process in this case. Every party should have to show certain dignity and respect to the rights and obligation of the parties. According to the norms of Article 6, the parties should abide by the rules of the good faith process and no one can adopt any illegal process for the same. The term illegal process includes coercion or undue influence. According to Article 7 of the Act, the nature of the contract should be legal and should be supported by the existing laws and regulation.

there are six essentials of contract in Australia such as:

· Offer

· Acceptance

· Competent parties

· Legal subject matter

· Mutual obligation

· consideration

Frustration

After the formation of the contract, it can be frustrated due to certain reasons. According to the common rule of contract, if any parties to the contract have failed to perform certain duties or contractual obligations due to certain unforeseen events, the contract becomes frustrated. According to this contract, the validity of the contract is not void from the beginning, but the future obligation of the contract becomes discharged. Delay is an appropriate example for the frustration of contract. Under the Contract Act of China, certain provisions have been mentioned under Article 54. According to the Article, the validity of a contract can be cancelled if certain delays take place. However, after the cancellation, certain rights are provided to the affected parties to the contract. Such rights have been mentioned under Article 58 of the Contract Law.

The principle of frustration of contract in Australia is based on the case of Taylor v Caldwell (1863) 3 B & S 826). According to this case, a contract can be frustrated due to certain unavoidable reasons. The nature of the contract becomes frustrated on the non-fulfilment of all the contractual terms.