The following dialogue on cross -disciplinary legal economics，According to Robert Cooter、Zhang Han's series of legal economics dialogue editing festivals。Dialogue initiator Zhang Han is a professor at the School of Law School of South China University of Technology、Senior visiting scholar at the University of California Berkeley，Kut is a professor at the University of California Berkeley、Ronald Cos Prize winner。

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　　Zhang Han:Today's first topic is related to the history of the law，As we mentioned earlier，In the general law system and the text of the law，The method of passing the knowledge to the next generation is different。Mainland Law Department is mainly based on the legal source of law，and the general law department mainly conveys knowledge through the jurisdiction，Sometimes passing the grammar。This is the two main ways of passing the knowledge of legal origin to the next generation。From the perspective of legal economics，Which one do you think is higher?

　　Kut:I think it involves a very important concept here，That is "institutional memory"。In the construction of the human system，There are a lot of knowledge or things that individuals do not have，but exist in the system，This is an important feature of the human system。For example，Suppose the legal documents of the United States except the Constitution are destroyed，Then people need to spend decades to understand the operating mechanism of the US government，and will make the Constitution a empty sketch that is unknown how to implement。If you want to figure out the specific meaning of the principles of the Constitution，It needs years of management practice。

Some people have an illusion，Think that when everything is recorded and written，The system is preserved，But in fact, you will never know the meaning of the system。The system contains hidden rules，We have to be assimilated by this hidden rule，I have to integrate this hidden rule。There is another example，When reading the Civil Code, people will find an incredible thing，The rules of the German Civil Code and the Japanese Civil Code in some areas are the same。Japan translated and modified the German Civil Code，Then it is used by yourself，But the results of the application of German law may be completely different。If you encounter the same infringement bet365 Play online games case，Japanese courts and courts in Germany may have a completely different judgment result，Even the rules they quoted are the principles of communication。

　　Zhang Han:There may be differences in the interpretation of legal origin in a specific cultural background and the difference between the growth environment and culture of the judge itself。For example，Principles for honesty trust、Principles of public order and good customs such as the same or similar laws and regulations，Differences in the results of the same or similar cases in different countries (even if they belong to the same legal system)。

　　Relations contract and complete contract

Kut:I think，Law is a system of cultural affected，And not the result of not all legal systems affected by culture is good。Japanese legal system is greatly affected by culture。Some people think that the Japanese are not enthusiastic about litigation，But in fact, there are many reasons why people are not keen on litigation。So，If you grow up in such a social environment，Perhaps it is not possible to consider resolving disputes through litigation。

　Zhang Han:Yes，I have read some materials，Take Sony as an example，One of his founders Sheng Tian Zhaofu was trying to open up the US market，I feel that there is a big difference between American culture and Japanese culture。He found a lot of lawyers in the United States，People want to ensure that the contract stipulates all matters。But in Japan，Although there are clauses or contracts，But it may not be specific to each detail。

　Kut:I want to share a story I like with you，It is an executive from Ark Petroleum that tells me。This executive is located in an American company，At that time, he was conducting short -term joint venture for the development of oil resources to develop Indonesia，Its partner is a Japanese company。And the Japanese and Americans are not familiar with each other，This kind of cooperation is a new thing for both parties。So，They rent a room at the hotel，A week -long negotiation。At the end of the negotiation，American lawyers take out a thick file，Obviously this is a cooperation contract，They hope to successfully cooperate through the contract。But the Japanese representative immediately left，and terminate this transaction。Because the concept of the Japanese on the contract is to establish a relationship，and Americans believe that the contract is to formulate some rules to restrict both parties。Last，They failed to reach a cooperation，Because they cannot merge these two concepts，Can't reach the same for。

　Zhang Han:We all know that there is a concept of "relationship contract" in institutional economics，The ideal contract theory has the concept of "complete contract"。In the above examples you are talking about，American companies seem to pay more attention to setting a written contract，If it may even tend to set up a complete contract，Try to complete the details established in the negotiation process as much as possible in the contract agreement、Fixed fixation，For the behavior guidance of both parties in the future。And the idea of ​​Japanese companies in this case seems to be closer to the relationship between the relationship，Long negotiations are of course to achieve a consensus，But it is to establish a long -term cooperative relationship。This relationship contains both the confirmation of the overall framework and the general consensus，It also includes flexible expectations of further confirming or changing cooperation details in the future relationship contract。Relations contract and complete contract represents two different ideas of legal economics cooperation，Historically played an important role，And has played an important role in East and West culture。Do you think there is any relationship between the two?

　Kut:Of course there is，The features of the relationship contract contain the promise standard，Let people know that this relationship will not suddenly or end quickly，And each party in the relationship contract has many ways to punish the other party。Since each party has many ways to punish each other，So it is meaningless to write all of them down。I always like to share dinner with my mother on Sunday as an example。If my mother invited me to dinner together，I promise to arrive at 6 o'clock in the evening，But it was not until eight o'clock。Because there is a commitment to each other，She has many ways to punish me，Even if there is no formal contract relationship between us。This is the way of running a relationship contract。This is a general framework、A general understanding，All details are generated from interaction。The contract is used to formulate rules，instead of establishing a relationship，It just wrote down who is to do as clear as possible。

　Zhang Han:I think this may have some associations with our previous discussions。About complete contracts，There is a balance problem: on the one hand，The more complete contracts，The higher the cost of drafting，But on the other hand，The clarification agreed in advance will reduce its execution cost。Therefore, the sum of the sum of the "pre -agreed cost of the contract+the post -execution cost of the contract"，It is the most important practical application after the logical deduction of a complete contract theory (similar to the ideal state of physical friction without friction)。Of course，In East Asia and the Middle East，People traditionally tend to contract with a relationship contract，Will develop with principles and trust，If a new problem occurs, it will be negotiated again、Punishment and decision to withdraw。Exit can be regarded as one of the general punishment methods。

　　Relations Contract and inheritance of Master and apprentice

Kut:I take the culture we mentioned earlier as an example，When you travel, this will impress you very deep。two years ago，My Alumni Association in Japan gave a speech，Alumni Association is located in Tokyo，It is established for Japanese alumni for a Japanese alumni graduated from the University of California Berkeley.。What impressed me very deeply is that they have a sense of belonging and responsibility for the sense of belonging and responsibility of the University of California Berkeley。This is the relationship formed by them when they enroll，And they will not forget。I appreciate it very much，I also admire this very much。I think in the United States，We rarely invest in alma mater，Although we donate to their alma mater，But I don’t think we have their sense of responsibility。

　　Zhang Han:I think it's not just Japan，In fact, this is also the difference between the East and the West。Let me give an example，General graduate students will have a mentor。In Eastern Country，They are more like a long -term lifelong intelligence support and social contract relationship，But in the United States, this is more like a traditional contract。

　Kut:I think you are very right。I want to ask you a question，I have been not sure if the Japanese pay more attention to relationships than Koreans or Chinese，Do you feel this? Do you think in China、South Korea or Vietnam，Is it the same attention to relationships? Is it the same in the entire Asian cultural area，Or do you think the Japanese especially value the relationship?

　Zhang Han:I don’t know what it is like Vietnam and South Korea，But in China，I think the connection between students and mentors is very strong，Method is also more traditional than European and American traditions。Even after graduation，Many students will also maintain a long -term relationship with the mentor。In our tradition，Even the teacher who has only taught yourself a day，Students will also treat him as his elders morally。In history, there is even "one day as a teacher，A Father for Lifetime "，Although changes in modern concepts，But the impact of history is difficult to completely eliminate。

　Kut:This is very good。Many graduate students I brought later became my friend，I have written a lot of papers with graduate students，Our relationship is indeed similar to the relationship between father and son or father and daughter。Because when I establish a relationship with my graduate student，I think I should take care of their career，Should be concerned about whether they are promoted、Why is it promoted and whether they encounter difficulties。I think I can still maintain such a contact with students at my age，It will make people feel satisfied。

　Zhang Han:As a teacher, he will really care about students' development and career，This is very normal。

　Institutional knowledge has different specific aspects

Kut:Back to the difference between the law system and the general law system，The rules of the text method are different from the ordinary law，The system is also different。Take France as an example，French system is opposite to the United States system。Not only the defense liability rules are different，The court's organizational methods are also different，People who go to the court also have different legal education backgrounds。So，There are some substantial differences in the knowledge of the US courts and French courts，These knowledge is called institutional knowledge，Their specific orientation of them。

The idea that the system can be simplified into the text is wrong。As Japan can introduce the rules of the German Civil Code，But actually maintains its own characteristics，Its practice can be said to be completely Japanese。No doubt，This is the Japanese system，Not Germany's system。The Japanese have never doubted this。The Japanese know that they don’t need the German Civil Code，What they want is to make the German Civil Code Japanese。So even if the provision is the same when it is written，But the system is still different。memory of the system operation passed down from generation to generation，It has produced an independent culture with it。

　　Zhang Han:I think because this is the interpretation and understanding of the law，instead of interpretation of legal provisions or specifications。The explanation method I refer to here is a broad sense，Not limited to the judge's explanation，It also includes the understanding of the people。In court，Judges need to explain the law，You need to explain it in a specific cultural context，You need to explain in judicial practice。Even if we don't talk about lawyers、Judge or professor、Expert's understanding，Just for ordinary people，The understanding of the same legal principle may also be different。For example，Integrity Principles、The principle of equality is very common in the civil code of any country in the mainland law system，Every individual of different countries，When they talk about the principle of integrity、Equality Principles，You may have different understanding。This is like what you mentioned before，The understanding of these countless individuals will also become part of the system，The form of writing or jurisprudence is just the surface carrier of institutional knowledge。For example，The "Black Letter Law" and the text method we said，Even when they write it out, they look almost the same，But practice is different。

　　Kut:Let me give an example，In the prohibition of unilateral communication principles,，All the information held by the judge must be obtained and reviewed during the trial，Can't come from any other channels。I have really happened in my body，When I first provided expert testimony in court，I don’t know these rules，I don’t know how to operate。My testimony lasted for several hours，Lunch time is here，Judge announced the off court。I was tired at the time，When walking out of the court to take the elevator，A big mistake is made，I got on the elevator before the judge，This means that the judge cannot take the same elevator。

　　Zhang Han:As an expert witness，Should not be in the same space as the judge，Because it may have some impact。

　　Kut:Yes，I can’t take the same elevator with the judge，So the elevator carried me down，and he has to continue waiting for，This is really stupid。The way to prohibit unilateral communication from specific effects varies from place to the place。For example，In the court of Germany，Sometimes judges will come over and have lunch with professors，Discuss the legal principles in a case，instead of discussing the case itself。I think the judges of the US Federal Supreme Court will not discuss the legal principles of the case with the professor in the case of trial，At least not all cases are being tried，Although I am not completely sure of this。A friend from South American countries tell me，This situation is quite common in them。When you are involved in a case，Become plaintiff or defendant，I learned who is the judge who tried this case，You will try to find a lawyer who has attended school with a judge at the law school，This lawyer will go to drink coffee with the judge，Discussion Case。

　　Zhang Han:I feel this is a bit like corruption or unreasonable affecting judges.

　　Kut:Maybe yes。Say the person I talked to me，This behavior can be seen from two angles，From a angle,，This is corruption; from another perspective，This is effective，Because in this informal discussion，The judge can understand a lot of things。

　Zhang Han:If the rules are set as not allowed to go to the coffee shop, they will meet privately，But you can still keep some formal information communication channels。For example，Communicate directly through the office phone，Not a judge’s mobile phone，Instead of calls from the court office; it can also be used to form an formal indirect communication through the judge assistant。

　　Kut:I think these systems depend on the way to set up，These things have been changing。For example，US president needs to save all office visits，People can learn from who he has talked with，This is a new rule。

　(This article is the Legal Economics Research on the Application of the National Social Science Fund project "Research on Reconstruction in the Application of Private Law" (22BFX177) phased achievement)

(The author is a professor at the School of Law of South China University of Technology; Professor of Law School of the University of California Berkeley。Li Yuqiao and others also contributed to the translation)