台湾小企业非正式金融（英文）

193 Relational Practices and the Marginalization of Law: Informal Financial Practices of Small Businesses in Taiwan Jane Kaufman Winn This article looks at one component of Taiwan's development experience, the informal financing techniques used by small businesses, to clarify the inter- action between the formal Republic of China (ROC) legal system and the net- work structure of Taiwanese society. The ROC legal system has supported the economic development process directly by regulating economic activity, and indirectly by facilitating the networks of relationships that also regulate eco- nomic activity. The relational structure of traditional, rural Chinese society has survived in a modified form in modem Taiwan, and this modem form selec- tively blends elements of the modem legal system, networks of relationships, and the enforcement services of organized crime. Ideas such as "legal central- ism" and "legal pluralism" fail to capture the dynamic of the relationship be- tween the ROC legal system and Taiwanese society, so the idea of "marginaliza- tion of law" is offered as a better description. S cholars studying law in developing countries often have noted differences between the social foundations for law in those countries and the social foundations for law in economically de- veloped Western societies. At times these scholars have suggested that economic development leads to "modern" legal relations and a correspondingly "modern" role for law. At other times, scholars have argued that customary and traditional forms of so- cial order will persist and limit the effectiveness of regulatory sys- tems modeled on Western law. This article examines the role of law in one important component of Taiwan's development expe- rience-the informal financing techniques used by small busi- Funding for the research presented here was provided by the Harvard Club of the Republic of China, the National Endowment for the Humanities, the Pacific Cultural Foundation, and Southern Methodist University. Earlier drafts were presented at the East Asian Legal Studies Institute of Harvard Law School; University of Texas School of Law; the 1992 Association of Asian Studies Annual Meeting; the 1992 Law & Society Associa- tion Annual Meeting; a conference on culture and development at Academia Sinica, Taipei, Taiwan; a conference on Chinese law at the University of British Columbia; and a Workshop on Chinese Capitalism and the Globalization of the Law at the Institute for Legal Studies of the University of Wisconsin. An earlier version is being published in Rubinstein (1994); an edited version will appear in Chinese in Taiwan Shehui YenjiuJikan (Taiwan: A Radical Quarterly in Social Studies). Address correspondence to Jane Kauf- man Winn, School of Law, Southern Methodist University, Dallas, TX 75275-0116. Law & Society Review, Volume 28, Number 2 (1994) ? 1994 by The Law and Society Association. All rights reserved. 194 Rational Practices and the Marginalization of Law nesses-in order to determine the nature of the interaction be- tween law and the network structure of traditional Chinese society. In contrast to the predictions of scholars who have drawn a sharp distinction between modern law and customary social or- ders in developing (and Western) societies, the evidence pre- sented here supports the notion that the relational structure of traditional, rural Chinese society has survived in a modified form in modern Taiwan and that this modern form blends elements of the modern legal system into networks of relationships. The legal system of the Republic of China ("ROC") has supported the eco- nomic development process not only by directly regulating eco- nomic activity but also by indirectly facilitating networks of rela- tionships outside the law that also regulate economic activity. Further, when small businesses have been unable to rely on the formal legal system for such indirect support for relational prac- tices, alternatives, including organized crime, have been called on to serve a similar function. Rather than focusing on better known and successful legal initiatives taken by the ROC government such as legislation dat- ing back to the early 1960s to stimulate foreign investment in Taiwan (Gold 1986:77), this study examines routine and wide- spread economic activities in which the impact of modern legal institutions is limited or indirect at best: those in the "informal sector" or "underground economy." "Informal sector" refers to economic activity deliberately transacted outside the purview of formal regulation, yet not generally considered criminal. Although the informal sector has made a significant contribution to Taiwan's rapid economic development over the past 40 years, it is as yet poorly understood. To understand informal economic practices in Taiwan, I first address the interactions among the formal ROC legal system, the networks of personal connections which characterize Taiwanese society, and informal substitutes for legal regulation (e.g., debt collection with the assistance of organized crime). This analysis is next applied to the informal financing techniques used by small private firms as just one ex- ample of the many types of economic activities routinely under- taken in Taiwan's informal sector (for the methodology for my research, see appendix 1). Studying the practices of small and medium-sized businesses is a crucial step in understanding the origins of Taiwan's "eco- nomic miracle," because such firms have played a greater role in Taiwan's economic development than they have in other East Asian newly industrialized countries (Orrui et al. 1991:368). Until the mid- to late 1980s, small and medium-sized enterprises in Tai- wan relied heavily on financial resources from outside the formal financial system because of a shortage of credit from regulated sources (Wade 1990:161). While limited access to bank financing WImn 195 clearly contributed to the growth of Taiwan's informal financial system, certain features of Taiwanese society also contributed to that growth, among them the maintenance of networks of per- sonal connections, the availability of informal surrogates for legal enforcement, and the marginalization of formal legal institu- tions. The findings of this study point to an apparent paradox. The development of a modern formal legal system may belie the so- cial realities in Taiwan, obscuring the propensity of legal institu- tions to foster relational practices rather than displace them. The very commitment of many legal practitioners and government of- ficials to the maintenance of a moder legal system based on for- eign models seems to contribute to the marginalization of mod- ern formal ROC legal institutions in a manner reminiscent of the marginalization of formal legal institutions in the traditional Chi- nese polity (Ch'fi 1961). In addition, the formalism of Taiwan's transplanted version of the Western legal tradition seems to limit the law's flexibility in adapting to contemporary Taiwanese social practices, thereby increasing the dependence of businesses on re- lational practices outside the law. The conclusions drawn from this study raise important ques- tions that link the subject matter of this article with larger themes in the study of law and development.' First, with regard to gov- ernment-sponsored development initiatives, one possible infer- ence from this preliminary study is that relational practices play a more significant role in development than has previously been acknowledged. If that is the case, then social and economic re- sources could be mobilized more effectively by officially acknowl- edging and even promoting relational practices in the economic development process in Taiwan and other Asian nations. Second, the idea of a perpetually marginalized legal system subordinated to relational practices profoundly conflicts with Western ideas of legitimacy based on the rule of law. This suggests that to under- stand societies experiencing rapid economic development and within which law plays a role very different from the role com- 1 Although there is evidence that relational practices are endemic in Taiwan (Greenhalgh 1988:224), this article cannot catalog or analyze every significant form of relational practice in moder Taiwanese society, or even every informal or underground financial practice. Thus, while the findings of this preliminary study might support con- jectures concerning the significance of relational practices within government, large-scale enterprises, or regulated financial institutions, they cannot serve to quantify the degree to which informal arrangements supplant formal regulation within those institutions. Fur- thermore, since my focus is on the routine financing of small businesses, I do not address any of the perhaps better-known recent examples of financial scandals involving large- scale credit or investment institutions. These include the Cathay scandal in 1985 (Fields 1990:194), the more recent problems involving Hung Yuan and other underground in- vestment firms (Chen 1992), and the Hualon stock scandal in 1992 (Baum 1992). While these well-publicized cases of underground or illicit financial practices raise important questions about the effectiveness of the ROC legal system in regulating financial institu- tions and the connection between law, organized crime, and relational practices in Tai- wan, they are beyond the scope of this article. 196 Rational Practices and the Marginalization of Law monly ascribed to it in Western industrialized nations, we must reassess such concepts as legitimacy and modernity. I. Marginalization of Law in Taiwan A. The Paradox of Modem Legality in Taiwan While the legal institutions of Taiwan have many modern at- tributes, that fact alone does not establish that Taiwan has a "modern" legal system. In order to decide whether or not Taiwan has a "modern" legal system, two separate issues must be re- solved: What constitutes a "modern" legal system? And what are the actual characteristics of the contemporary ROC legal system? The first issue, determining what constitutes a "modern" legal system, is at least as problematic as the second, because of the tendency of scholars from societies with "moder" legal systems to conflate theoretical or ideological tenets regarding the rule of law with the actual social practices that constitute legal institu- tions in their own societies. Certain legal scholars have put forth the concepts of "legal centralism" and "legal pluralism" (Ga- lanter 1981; Griffiths 1986) in an effort both to articulate some unstated assumptions that inform most studies of legal systems and to bring the analysis of legal systems closer to the actual so- cial practices that constitute those systems. While "legal centralism" and "legal pluralism" may be useful in cutting through some of the obfuscation surrounding the study of many legal systems, neither of these concepts captures the interaction in Taiwanese society between formal legal institu- tions, informal order, and networks of relationships. A satisfac- tory account of the role played by the legal system in modern Taiwanese society must simultaneously take account of native Taiwanese ideas about law and society,2 which have been influ- enced by both the modern history of Taiwan and traditional Chi- nese values; the values implicit in Western ideas of modern legal- ity; and the subtle cultural matrix that determines which ideas and values predominate under particular circumstances. While the ROC legal system does not play the dominant, central role assumed by theories of social organization grounded in the West- ern liberal democratic, free-market tradition, neither is Taiwan- ese society characterized by a plurality of well-defined, rule-gov- erned social organizations that the concept of "legal pluralism" postulates as the basic form of social organization. The interac- tion of law and society in Taiwan might more accurately be char- acterized as the "marginalization of law," a process in which the ROC legal system plays a significant role in Taiwanese society but 2 Paradoxically, many Taiwanese legal professionals subscribe, or at least claim to subscribe, to a vision of law based on "legal centralist" ideas. Wimn 197 is often displaced by a more fundamental source of social organi- zation-fluid, highly contextual networks of human relation- ships. 1. Modern Law and the Presumption of Legal Centralism The modern legal system of the ROC was organized in a se- ries of steps beginning in the late 1920s.3 Most codes and statutes enacted during the Republican period (1911-49) on mainland China took German codes and statutes of the late 19th and early 20th centuries as their models, following the example already set by Meiji Japan in modernizing and Westernizing its legal system. Effective implementation of the modern ROC legal system was severely hindered throughout the Republican period. This was due to the limited effectiveness of Republican government on the Mainland during the 1930s, followed by the Sino-Japanese War from 1937 to 1945 and finally by the Chinese Civil War end- ing with the defeat of the KMT ("Kuomintang" [see appendix 2] or Nationalist Party) and withdrawal of the ROC government to Taiwan in 1949. Since 1949, however, the ROC legal system has played an increasingly important role in the economic and social life of Taiwan as the number of legal professionals has increased and the quality of their training improved and as the quantity and sophistication of legal doctrines have grown to meet the needs of a rapidly industrializing society. Among the most well-known and successful legal initiatives taken by the ROC government are the Statute for Encourage- ment of Investment and related changes in tax, land use, and labor and company laws facilitating direct foreign investment in Taiwan and export-oriented growth through the establishment of export-processing zones (Hsu 1985:283). These laws were intro- duced or amended as part of a broad program of economic re- forms in the early 1960s. These reforms laid part of the founda- tion for Taiwan's subsequent "economic miracle" and its transformation from an underdeveloped agricultural country to a highly industrialized country. Today, Taiwan's per capita GNP is equivalent to that of some European countries.4 While the success of these governmental initiatives is well known, they are not representative of the general role played by the modern ROC legal system in Taiwanese society. Indeed, fo- cusing on government led programs that helped nurture Tai- wan's successful export-oriented industrialization obscures the role more commonly played by the ROC legal system in regulat- ing economic activity. Much of Taiwan's industrialization has 3 The Civil Code was enacted in 1929 and the Criminal Code, the Civil Procedure Code, and the Criminal Procedure Code were enacted in 1935. A draft Constitution was adopted in 1936 and finally ratified in 1946. 4 According to the 1993 World Almanac, the 1992 per capita GNP of Taiwan was $7,380, which compares favorably with that of Portugal ($5,580) and Greece ($7,650). 198 Rational Practices and the Marginalization of Law taken place outside the relatively highly regulated environments of the export-processing zones and through domestic rather than foreign investment (Haggard & Chen 1987:93). Thus, the visibil- ity of such initiatives can easily lead to overestimating the impor- tance of state-sponsored regulation and underestimating the im- portance of alternative ordering mechanisms.5 This tendency of some theories of the role of law to empha- size the importance of state-sponsored regulation has been la- beled "legal centralism" by scholars trying to devise less-biased models of the operation of law and legal institutions in society. Legal centralism designates not so much a theory as an unarticu- lated premise that underlies most contemporary discussions of the role of law in society. Legal centralism has variously been de- scribed as "a picture in which state agencies (and their learning) occupy the center of legal life and stand in a relation of 'hierar- chic control' to other, lesser normative orderings such as the family, the corporation, the business network" (Galanter 1981:17); the idea that "law is and should be the law of the state, uniform for all persons, exclusive of all other law, and adminis- tered by a single set of state institutions" (Griffiths 1986:3); or "the dogma that there exists . . . a dominant normative order, defined by a general set of rules and principles (the law), ema- nating from the state, governing all members of society equally and impersonally, and enforced and applied through the ordi- nary courts" (Gordon 1985:423). The idea of legal centralism has often been criticized as an inaccurate characterization of the role of law even in Western societies (see, e.g., Ellickson 1991:4; Scott 1992:668; Williamson 1985:20), and its weakness as a concept has long been recognized from a theoretical, jurisprudential perspective (Dworkin 1979: 62). Nevertheless, the tacit assumption of the normative primacy of state-sponsored rule systems has proven remarkably resilient in discussions of the role of law in modern societies (Griffiths 1986). Galanter (1981:20) points out that while empirical studies of law in modern societies have repeatedly "discovered" the plu- ralistic, non-state-centered nature of the social order, this has lit- tle noticeable impact on official accounts of the role of law in those societies. 2. Legal Pluralism, Legal Marginalism, and Chinese Society Scholars attempting to avoid the unwarranted assumptions of the legal centralist perspective have developed the idea of "legal pluralism." Legal pluralism has been defined as "a state of affairs 5 In a similar vein in his study of labor conditions in small businesses, Shieh (1990:14) criticizes the dominance of a "statist" approach in existing studies of Taiwan's development, which overemphasizes the role played by governmental initiatives, often disregarding the role played by ordinary working people and popular culture. Wmn 199 in which behavior pursuant to more than one legal order occurs" (Griffiths 1986:2). According to Griffiths, a narrow interpretation of legal pluralism would recognize multiple sources of law-like regulation within a single society while still assuming the primacy of state-centered law. A radical interpretation of legal pluralism, however, would deny any hierarchical superiority to state-cen- tered law. From this perspective, institutions such as schools, hos- pitals, universities, churches, and businesses may promulgate law- like norms that merit consideration together with state-spon- sored legal norms in understanding the order of a modern soci- ety. When such alternatives to legal regulation are taken into ac- count, legal pluralism seems to offer a better description of many contemporary Western societies than does legal centralism (Ga- lanter & Luban 1993:1401). However, legal pluralism may not provide an adequate alter- native to legal centralism for non-Western societies. This is true for Taiwan, where the social order is anchored in networks of interpersonal relationships rather than founded on either a cen- tral, universal, dominant legal order or a plurality of legalistic orders. Fei Xiaotong (1992:61-63), a Chinese sociologist, devised two evocative metaphors to contrast the basic social structures of Chinese and Western societies. Fei described the organization of Western society