Journal of International Commercial Law and Technology Vol.4,Issue 1 (2009) criminal procedure,civil law,and civil procedure,often trials are closed,conducted days after charges are filed,or even months or years later.Lawyers have been known to have been kept from their clients,or even kept from attending such politically sensitive trials altogether.Intimidation is also known to play a role,and many lawyers are unwilling to take on clients involved in trials considered sensitive,in order to protect their legal careers (Matheson,2006).Thus,when practitioner from a Common law jurisdiction faces a dispute in China where he or she might want to cite a precedent(surely,there are precedents),the practicality of doing it is slim both on the likelihood of finding the proper authority and on accessibility in the litigation process even it is a case from an official source such as PRC supreme court case note database. Secondly,it also deserves a mention that cases in China play an important role as a tool of the Ministry of Propaganda,not only in their decisions as to what gets published,but more importantly,as to what does not get published.Nonetheless,we feel it is important to publish here,some of the cases that the Chinese government feels the domestic and international communities should have access to.We know that they all covey some message to the public at large,however subtle it may be.The messages are always there as a result of a legal system without checks and balances,which is often used as a"tool"to convey messages or enforce a policy,rather than implement blind justice (Matheson,2006). Another unfortunate feature of Chinese case law is its infantile recording system.From the author's personal experience,it is interesting to browse one of the most popular case note databases,in fact,the only official case note database in China www.chinacourt.org7,which is set up by PRC Supreme Court.As people who can read both Chinese and English,the first interesting feature is the vast differences between the Chinese version and English version of this site.Many functions and information available on the Chinese site are not seen on the English site,which include the important case law database,anti corruption forum,free posting sections for website visitors and many current news.This situation can be caused due to a slow process of setting up English version for various sections;it can also be caused by unrevealed political reasons.As an experiment,the author of this paper tried to search within 'Civil litigation'database with any case with the word 'contract'in its title.The result of this search returned 3951 cases with a latest case in 2006 and oldest case in 20018.Unfortunately,many of these cases appeared in the result list neither have a clear date of trail and a clear court reasoning.9 Most of these case notes read more like newspaper stories rather than serious court cases.10 It is also interesting noting that photos of the parties in court hearing and/or in other scenarios have been published with many emotional in many of these cases in the database.11 Nevertheless,all these clearly show that the case recording system in China is at its very infancy stage,which is due to both the traditionally under-recognized value of the case law approach and perhaps the lack of political wills This situation reinforces the fact that different method should be adopted in solving trading issues involving contract matter when use Chinese contract law.The standard Western method of citing authorities(cases of statutes)and arguing the matter based on the authorities does not seemed to be the best way in China.Instead,as will be discussed in the particulars of the UCL,preparing an argument based on framework/principle of law rather than focusing on the application of law(previous cases)is recommended. Lastly,one of the reasons that precedent does not hold great weight in litigation is due to the questionable qualification of Chinese judges.The Communist Party in China took office in 1945,which signified the establishment of a 'New PRC.However,its judicial system had not been properly developed until 1978,when the Cultural Revolution finished(Mei,Fu,Xu,2002).Numerous reforms and restructurings of judicial system have been conducted by the State Government in the past decades,which achieved significantly in establishing the Country's court system (Tong,2007).At the same time,the qualification of Chinese judges has been improved to a large degree.Unfortunately,in general,Chinese judges,as one special group of people in the country,is still not comparable to the judges in the Western countries in terms of the way of training judge,years of experiences before becoming a judge,skills of reason a judgment,the number of qualified judges and even the familiarity with the laws (A.Wu,2007).This situation has created many uncertainties for people who are not familiar with the Chinese system(even for PRC practitioner sometimes),which is something that one needs to bear in mind in trading with the nation,at least in the near future where there is no sign of significant changes. 7English version website is http://en.chinacourt ore/index.php The trial was conducted while writing this paper on 16 May 2008 9An example of case without trail date can be found from e ro eamle. http://www.chinacourt.org/public/detail.php?id=301499&k_title=k_content=k_author= An example of these cases can be found from http://www.chinacourt.org/public/detail.php?id=301669&k_title=k_content=k author= 15Journal of International Commercial Law and Technology Vol. 4, Issue 1 (2009) 15 criminal procedure, civil law, and civil procedure, often trials are closed, conducted days after charges are filed, or even months or years later. Lawyers have been known to have been kept from their clients, or even kept from attending such politically sensitive trials altogether. Intimidation is also known to play a role, and many lawyers are unwilling to take on clients involved in trials considered sensitive, in order to protect their legal careers (Matheson, 2006). Thus, when practitioner from a Common law jurisdiction faces a dispute in China where he or she might want to cite a precedent (surely, there are precedents), the practicality of doing it is slim both on the likelihood of finding the proper authority and on accessibility in the litigation process even it is a case from an official source such as PRC supreme court case note database. Secondly, it also deserves a mention that cases in China play an important role as a tool of the Ministry of Propaganda, not only in their decisions as to what gets published, but more importantly, as to what does not get published. Nonetheless, we feel it is important to publish here, some of the cases that the Chinese government feels the domestic and international communities should have access to. We know that they all covey some message to the public at large, however subtle it may be. The messages are always there as a result of a legal system without checks and balances, which is often used as a "tool" to convey messages or enforce a policy, rather than implement blind justice (Matheson, 2006). Another unfortunate feature of Chinese case law is its infantile recording system. From the author’s personal experience, it is interesting to browse one of the most popular case note databases, in fact, the only official case note database in China www.chinacourt.org7, which is set up by PRC Supreme Court. As people who can read both Chinese and English, the first interesting feature is the vast differences between the Chinese version and English version of this site. Many functions and information available on the Chinese site are not seen on the English site, which include the important case law database, anti corruption forum, free posting sections for website visitors and many current news. This situation can be caused due to a slow process of setting up English version for various sections; it can also be caused by unrevealed political reasons. As an experiment, the author of this paper tried to search within ‘Civil litigation’ database with any case with the word ‘contract’ in its title. The result of this search returned 3951 cases with a latest case in 2006 and oldest case in 20018. Unfortunately, many of these cases appeared in the result list neither have a clear date of trail and a clear court reasoning.9 Most of these case notes read more like newspaper stories rather than serious court cases.10 It is also interesting noting that photos of the parties in court hearing and/or in other scenarios have been published with many emotional in many of these cases in the database.11 Nevertheless, all these clearly show that the case recording system in China is at its very infancy stage, which is due to both the traditionally under-recognized value of the case law approach and perhaps the lack of political wills This situation reinforces the fact that different method should be adopted in solving trading issues involving contract matter when use Chinese contract law. The standard Western method of citing authorities (cases of statutes) and arguing the matter based on the authorities does not seemed to be the best way in China. Instead, as will be discussed in the particulars of the UCL, preparing an argument based on framework/principle of law rather than focusing on the application of law (previous cases) is recommended. Lastly, one of the reasons that precedent does not hold great weight in litigation is due to the questionable qualification of Chinese judges. The Communist Party in China took office in 1945, which signified the establishment of a ‘New PRC’. However, its judicial system had not been properly developed until 1978, when the Cultural Revolution finished (Mei, Fu, & Xu, 2002). Numerous reforms and restructurings of judicial system have been conducted by the State Government in the past decades, which achieved significantly in establishing the Country’s court system (Tong, 2007). At the same time, the qualification of Chinese judges has been improved to a large degree. Unfortunately, in general, Chinese judges, as one special group of people in the country, is still not comparable to the judges in the Western countries in terms of the way of training judge, years of experiences before becoming a judge, skills of reason a judgment, the number of qualified judges and even the familiarity with the laws (A. Wu, 2007). This situation has created many uncertainties for people who are not familiar with the Chinese system (even for PRC practitioner sometimes), which is something that one needs to bear in mind in trading with the nation, at least in the near future where there is no sign of significant changes. 7 English version website is http://en.chinacourt.org/index.php 8 The trial was conducted while writing this paper on 16 May 2008. 9 An example of case without trail date can be found from http://www.chinacourt.org/public/detail.php?id=300823&k_title=合同 合同 &k_content= &k_author= 10 Examples of newspaper story like case note are very commonly from this official case law database. For example, http://www.chinacourt.org/public/detail.php?id=301499&k_title=合同 合同 &k_content= &k_author= 11An example of these cases can be found from http://www.chinacourt.org/public/detail.php?id=301669&k_title=合同 合同 &k_content= &k_author=