The second edition comprises the latest developments in contract legislation, adjudication and practices in China, including the newly adopted laws, judicial interpretations and guiding cases. It emphasizes contextual distinctions and transactional considerations relevant to contract research and practice. The book provides a meaningful tool to get inside the contemporary contract law of China.
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The second edition comprises the latest developments in contract legislation, adjudication and practices in China, including the newly adopted laws, judicial interpretations and guiding cases. It emphasizes contextual distinctions and transactional considerations relevant to contract research and practice. The book provides a meaningful tool to get inside the contemporary contract law of China.
Edited by Myron H. Nordquist, John Norton Moore and Ronán Long
Editor-in-Chief Javaid Rehman
The Asian Yearbook of Human Rights and Humanitarian Law aims to publish peer-reviewed scholarly articles and reviews as well as significant developments in human rights and humanitarian law. It examines international human rights and humanitarian law with a global reach, though its particular focus is on the Asian region.
The Asian Yearbook of Human Rights and Humanitarian Law is also available online.
Announcement and Call for Papers for the International Conference: Law, Gender and Sexuality, to be held in London on 26th October 2018. More information and instructions can be found here.
Edited by Matthias Vanhullebusch, Weidong Ji and Jiaxiang Hu
Edited by C.H. (Remco) van Rhee, Lei Chen and Jacques deLisle
Edited by Seokwoo Lee and Zou Keyuan
The Evolving Institutions and Mechanisms
Zhiqiong June Wang and Jianfu Chen
Ling Li and Wenzhang Zhou
By focusing on the underlit corners of authoritarian governance in China, this article challenges the thesis that constitutions matter to authoritarian regimes because they provide solutions for problems of governance. We argue to the contrary: the constitution appeals to the Chinese Communist Party (the Party or the ccp) because it does not provide solutions to fundamental issues of governance. Instead, such issues are kept out of the constitution so that they can be addressed by the Party through other regulatory mechanisms outside of the constitutional realm. In support of our thesis, we provide a unique review of the most up-to-date authoritative research on three key constitutional issues: central-local relations, party-state relations and power relations in the Politburo. These three issues correspond to three distinctive fields in China studies that were treated only in isolation but here we consider them together under the single framework of authoritarian constitutional governance.
This article reviews the development of three important themes in the Chinese Communist Party’s (ccp’s) description of the rule of law since China’s opening up and reform began in December 1978. It expands upon key Party documents that frame the meaning of the rule of law in ccp doctrine. It sets out the doctrine, identifies significant changes, and considers what they might mean for the Party’s present stance toward law and legal construction. It builds upon a broad literature that explores those documents and that doctrine, focusing on three connected points of tension in the Party’s articulation: the relationship between rule of law and rule by law, the relationship between the rule of law and Party leadership, and the relationship between the rule of law and Party discipline.
Resorting to the immensely state-centric international legal system to regulate corporate human rights abuses is often viewed as inadequate. Among many proposals aiming at filling the international regulatory gaps, imposing international human rights obligations directly on corporations is a bold one, which, due to profound doctrinal and practical challenges, is yet to be materialized. However, state-owned enterprises (SOEs), given their prima facie “state–business nexus” that blurs the traditional public–private divide, might provide a renewed opportunity to push forward the “direct international corporate accountability” campaign. This study investigates whether SOEs represent a golden chance for direct corporate accountability in the international legal regime. This study provides a legal analysis supported by case law, and by comparative and empirical research when appropriate. After providing a definitional account of SOEs, it examines the legal status of SOEs under international law. Then, in the reverse direction, it proceeds to explore if the state–business nexus of SOEs as non-state actors could render the argument toward direct international corporation accountability more convincing. Major findings reveal that SOEs, to a limited extent, represent a renewed opportunity to rethink direct corporate accountability under international law.
Tian Wei and Zheng Zixuan
In the era of globalization, commercial transactions readily gain international dimensions and are increasingly delocalized. With a view to establishing effective dispute resolution mechanisms, it is desirable that judgments rendered in one state be recognized and enforced in other states. This is especially important in East Asia, as cross-border business activities are rapidly expanding along with its economic growth. This paper aims to examine the recognition and enforcement of judgments in civil and commercial matters in East Asia with a focus on Sino–Japanese relationships, where the establishment of a reciprocal relationship has posed a considerable challenge. It is worth considering how we can gradually pave the way towards the mutual recognition and enforcement of judgments to achieve coordination among legal systems.
This paper explores the main legal aspects of filial piety in Israel. Based on a socio-legal study, it traces a significant gap between the law in the books, which mandates that children support their parents financially if the latter cannot support themselves, and the law in action, which narrows this obligation to cases in which the parents must be cared for in a State nursing home. The study also highlights the relevance of religious and cultural norms in shaping filial piety in multicultural countries and thus points to the urgent need to tailor filial piety legal policies according to socially constructed, actual, and diverse filial piety perceptions and practices.
The increase in aging populations is one of the most important issues facing the world today. This article considers how the legal systems in three jurisdictions — China, Singapore, and the United States — with different legal, political, and ethical regimes, impose and then enforce obligations on adult children to care for their parents. For Singapore, this article considers the content and operation of the Maintenance of Parents Act 1996 and the use of mediation and tribunals for the enforcement of its provisions. For the United States, where more than half the states have some forms of filial support legislation, this article mainly focuses on the experience in Pennsylvania and North and South Dakota and considers cases interpreting the legislation from these states; it also considers the interplay between the legislation and federal social security and healthcare programs. For China, this article mainly considers the obligations imposed by the Law of the People’s Republic of China on the Protection of the Rights and Interests of the Elderly (amended in 2009, 2012, 2015 and 2018) with examples of recent cases decided in 2017 and the encouragement given to children to support their parents through two agreements (the Separation of Family Assets and the Family Support Agreement) and increased inheritance rights under the Law of Succession 1985. China is unusual in imposing a legal obligation on children to visit their elderly parents, and the article considers recent cases on this. Through a comparative approach, this article also assesses the strengths and weaknesses of the approaches in each jurisdiction.
In the summer of 2017, Hong Kong became the first jurisdiction in China to codify formal financing arbitration and to make it clear that third-party funders with no legitimate interest in the disputes could be allowed to inject capital to support funded parties in arbitration cases. With the latest Code of Practice coming into effect in the spring 2019, Hong Kong is ready to guide the funders in detail on delivering investments into the arbitral procedures in the harbor seat. By examining these legislative processes in Hong Kong, it can be proved that financing arbitration will enable enterprises to dispose of their disputes with easier access to justice, promote the quality and efficiency of dispute resolution, and improve the welfare of society as a whole. Therefore, it is justifiable to adopt third-party funding in China-related arbitration to promote the Chinese mainland’s arbitration practices and support the international proceedings involving Chinese parties, particularly the international ones arising from investments related to the Belt and Road Initiative.
Volume 3, 2019, Law, Gender and Sexuality
Edited by Javaid Rehman, Ayesha Shahid and Steve Foster
The focused theme of Volume 3 is Law, Gender and Sexuality.
AIIB Yearbook of International Law 2018
Edited by Peter Quayle and Xuan Gao
This volume concludes with the text of the 2017 AIIB Law Lecture, delivered by the United Nations Under-Secretary-General for Legal Affairs and Legal Counsel, Miguel de Serpa Soares on the subject of ‘The Necessity of Cooperation between International Organizations’ and a summary report on the proceedings of the 2017 AIIB Legal Conference.
The first volume of AYIL was launched at the Annual Meeting of the Board of Governors of the AIIB in Mumbai, India, June 2018.
Sustainable Development and the Practice of Good Governance
Edited by Wei Zhang
Instead of emphasizing the economic perspective, this book focuses on how to realize the right to sustainable development by resolution of conflicts among the economy, the environment and society.
Integrating the value analysis into the empirical analysis method, this book expands the scope of the United Nations Declaration on the Right to Development and strengthens its practical function, extracts Chinese experiences, lessons from South Asia, local knowledge in South Africa and practice in Peru on the implementation of the right to development, and puts forward the idea of building human rights criteria in the South.
Asian and European Experiences
Edited by Keyuan Zou
The book is divided into four parts: “International Legal Framework for Semi-Enclosed Seas Cooperation,” “Cooperative Management of Marine Resources,” “Handling Non-Traditional Security Issues,” and “New Challenges to Semi-Enclosed Seas Cooperation.” In addition to general discussions on semi-enclosed seas, the volume offers special geographic coverage of the East China Sea and South China Sea in East Asia and the North Sea and Mediterranean Sea in Europe.
Proposals for Reform
Edited by Faustina Pereira, Shahnaz Huda and Sara Hossain
With the development of the international community, public morals have attracted increasing attention from states. Nevertheless, the “public morals” exception clause in Article XX(a) of the General Agreement on Tariffs and Trade (GATT) is hardly invoked by state parties as a distinct basis for trade-restrictive measures. The EC-Seal Product dispute is the first case in which the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) considered this issue, after which it addressed the issue in the Columbia-Textiles and the Brazil-Taxation disputes. This article aims to analyze the kinds of public morals that can be justified while implementing trade-restrictive measures. It proposes that the human rights standard is a significant moral concern and that human rights law and trade law may be integrated. The article also addresses the question on the procedures that should be followed in applying Article XX(a) to avoid abuse. It concludes that Article XX(a) attaches intrinsic importance to striking a balance between trade liberalization and state sovereignty, for which it must be reserved in the GATT.
Liu Lu and Qi Qi
This paper explores the law in China determining the validity of ad hoc arbitration agreements. It first points out the particularity of China’s attitude toward ad hoc arbitration through a textual analysis of key provisions in Chinese laws and the comparison between Chinese law and the law of other jurisdictions. The authors then adopt an empirical approach to analyze Chinese courts’ practice in the application of Chinese arbitration laws and conclude that, despite the clear wording employed by the Chinese Arbitration Law, Chinese courts could use two ways to save the ad hoc arbitration agreements without disobeying the statutory law. The paper then moves to analyze the Opinion of Supreme People’s Court on Providing Judicial Guarantee for the Construction of Free Trade Pilot Zone (hereinafter referred to as “SPC Opinion”) issued in December 2016, which is viewed as a tipping point toward a supporting regime of ad hoc arbitration. By implementing this SPC Opinion, for the first time, China regionally embraces ad hoc arbitration. On the basis of the analysis of this new development, the authors suggest possible facilitations to the SPC Opinion and predict the future reform of ad hoc arbitration.
China entered a new era of reform and opening up after the Third Plenary Session of the 11th Central Committee of the Communist Party of China in 1978. During the past forty years of rapid socioeconomic change and historical progress toward governing the country according to law, legal research in China has achieved unprecedented progress and prosperity. Forty years of legal research during China’s reform and opening up can be reviewed and summarized from varying perspectives, using wide-ranging approaches. This article will identify major theoretical issues and several innovative perspectives concerning legal research in China over the past forty years. It will focus on theoretical issues concerning jurisprudence, legal history, and other major areas of legal science.
Bian Jianlin and Xie Shu
The Third Plenary Session of the 11th Central Committee of the Communist Party of China held in 1978 marked the initiation of the policy of reform and opening up in China, beginning a new chapter in the construction of a socialist legal system. The first Chinese criminal procedure law was promulgated the following year and was revised twice in 1996 and 2012. Although remarkable progress has been made, the level of the rule of law in China’s criminal procedure must still be improved to meet the goal of modernizing the criminal rule of law.
A Changing Approach
Sergey Yu. Marochkin
Sergey Marochkin explores how methods for incorporating and implementing international law (or reasons for failing to do so) have changed over time, influenced by internal and global policy. The final sections of the book are the most illustrative, examining how 'the rule of law’ remains subordinate to ‘the rule of politics’, both at the domestic and global level.
This article reviews the historical development of Chinese civil law since reform and opening up of China and argues that the primary achievement of civil law legislation over the last four decades has been the formation of a comprehensive civil legal system. Today’s civil law system in China not only satisfies the institutional requirements for building a market economy but also constructs a legal rights system and establishes fundamental civil law principles, such as individual autonomy, equal protection, good faith, and fairness. In the 40 years since reform and opening up, there have been significant innovations with regard to the specific systems, systemic structures, and fundamental principles of Chinese civil law. This article summarizes the experiences of China’s civil law legislation since reform and opening up and looks ahead to how the anticipated “civil law codification” suitable for the modern era will develop a modern legal code based on China’s domestic circumstances.
Suzanne E. Scoggins
The study of policing in China is a small but growing subfield with critical insights for law and society scholars. This article examines the fundamentals of policing, tracing the organization’s history and institutional basics before turning to a review of the emerging literature. Scholars have made headway analyzing topics like policing practices, social control, public relations, and police perspectives, but there is still much work to be done. Partly because research on the police faces methodological challenges, the literature is uneven, leaving gaps in our knowledge about key issues such as police corruption, regional variation, and the relationship between police and private security groups. By outlining what we do and do not know about policing in China, this article parses the field’s best answers to questions of how police officers and the Public Security Bureau enforce state mandates and respond to challenges on the ground.
Benjamin van Rooij, Li Na and Wang Qiliang
Scholars and politicians often complain about how weak administrative law enforcement is in China. To better understand the challenges in law enforcement, as well as variation in actual practices and influences on such practices, the current paper analyzes Chinese pollution law enforcement data from the last two decades as well as in depth qualitative case studies of everyday enforcement practices. It finds that recently enforcement has become much more frequent and stricter. It finds that recent changes in national legislation, centralization reforms, increased citizen complaints, as well as enforcement campaigns all played a role in this. While this has helped strengthen enforcement, and maybe has played a part in recent pollution reductions, it has not fundamentally overcome structural enforcement impediments. The increased authority, independence, and pressure on environmental authorities for stricter enforcement, does not seem to be matched with sufficient investment in resource capacity and support for regular procedural enforcement practices. In addition, the ad-hoc pressure on enforcement has undermined regular legal procedure and stimulated greater socio-economic inequality. These findings about pollution enforcement force us to question simplistic static generalizations of administrative law enforcement and instead develop both large-scale studies that map change over time as well as in-depth case studies that provide a thorough picture of actual practices on the ground. Moreover, the paper concludes that a true picture of administrative enforcement must move beyond looking at the enforcement itself, to looking at how it arrives at the regulated companies and shapes their compliance.
This paper provides an overview of judicial decisions on lawsuits against regulatory penalties imposed on nonprofessional taxi drivers and ride-hailing platform operators in China and the European Union (especially Germany). Despite strikingly different facts in these cases, courts in both China and the EU are frequently called upon to rule on similar legal issues, including the applicability of old regulatory rules to new forms of transport services, the regulatory bar for the operation of emerging transport models, and the proper intensity of competition in taxi markets. The comparison of such cases suggests that for deciding the regulatory schemes of the innovative economy of transport services, the judicial system is not better suited than the regulatory system, especially the regulatory authority of the central government. Moreover, an experimental regulatory approach with minimum standards is arguably a feasible option that can fit with the emerging nature of innovative businesses.
The Qvod case in 2016, in which the Chinese video-sharing site Qvod was convicted of the crime of disseminating pornographic materials for profits, provoked heated debates regarding the criminal responsibility of internet service providers (ISPs) in China. Using the Qvod case as an example, this paper first discusses the definition and the legal obligations of ISPs, and argues that we should decide the criminal responsibility of ISPs according to their functions and the content of their services. This paper further analyzes four major issues associated with the criminal responsibility of ISPs, including accomplice responsibility, accessory with neutral conduct, perpetrator by action or omission and ideal concurrence (Idealkonkurrenz).
The reflections on data regulation in the internet of things (IoT) in this paper provide an overview of the different conceptions and legal problems of “data property rights.” Beginning with an overview of the existing and possible applications of the future IoT (in particular, smart cars), this paper describes the legal concerns that may arise because of increased commercialization of object-generated data. The author uses German and European Union law to illustrate the legal complexities, solutions, and shortcomings. He demonstrates how and to what extent these issues are covered by traditional data protection regulations and highlights the conceptual blind spots of these regulations. He then contrasts the data protection paradigm (de lege lata) with the idea of a general erga omnes data property right (de lege ferenda) and describes the most common understanding of such a right, that is, a data producers’ property right. Against the background of the possible economic advantages of general data property rights, the paper discusses conceptual problems and constitutional concerns. In conclusion, the author rejects the idea of a general data property right.
The article examines to what extent territory plays a role in internet regulation, especially whether an equivalent to physical border controls for cyberspace already exists in Germany, i.e. digital border controls. To that end, both the abstract relevance of the territorial principle and specific examples of legal commands that cause the free flow of data to be interrupted or modified along state boundaries are scrutinized.
Yu Wenguang, Tian Wei, Christoph Krönke and Michael W. Müller
The article discusses the proposal for a “Charter of Digital Fundamental Rights of the European Union,” whose central element is a binding effect of its fundamental rights not only to state authorities, but also to powerful private internet companies, which have a potential similar to that of the state to infringe on fundamental rights in the digital era. The article outlines the traditional German approach to fundamental rights and its underlying distinction between state and society, which makes it difficult for German scholars to handle a so-called horizontal effect of fundamental rights. Finally, the article discusses the main objections to such a horizontal effect and shows some practical problems it has the potential to cause in German and European constitutional law.
Considering the prevalence of online hate speech and its harm and risks to the targeted people, democratic discourse and public security, it is necessary to combat online hate speech. For this purpose, internet intermediaries play a crucial role as new governors of online speech. However, there is no universal definition of hate speech. Rules concerning this vary in different countries depending on their social, ethical, legal and religious backgrounds. The answer to the question of who can be liable for online hate speech also varies in different countries depending on the social, cultural, history, legal and political backgrounds. The First Amendment, cyberliberalism and the priority of promoting the emerging internet industry lead to the U.S. model, which offers intermediaries wide exemptions from liability for third-party illegal content. Conversely, the Chinese model of cyberpaternalism prefers to control online content on ideological, political and national security grounds through indirect methods, whereas the European Union (EU) and most European countries, including Germany, choose the middle ground to achieve balance between restricting online illegal hate speech and the freedom of speech as well as internet innovation. It is worth noting that there is a heated discussion on whether intermediary liability exemptions are still suitable for the world today, and there is a tendency in the EU to expand intermediary liability by imposing obligation on online platforms to tackle illegal hate speech. However, these reforms are again criticized as they could lead to erosion of the EU legal framework as well as privatization of law enforcement through algorithmic tools. Those critical issues relate to the central questions of whether intermediaries should be liable for user-generated illegal hate speech at all and, if so, how should they fulfill these liabilities? Based on the analysis of the different basic standpoints of cyberliberalists and cyberpaternalists on the internet regulation as well as the arguments of proponents and opponents of the intermediary liability exemptions, especially the debates over factual impracticality and legal restraints, impact on internet innovation and the chilling effect on freedom of speech in the case that intermediaries bear liabilities for illegal third-party content, the paper argues that the arguments for intermediary liability exemptions are not any more tenable or plausible in the web 3.0 era. The outdated intermediary immunity doctrine needs to be reformed and amended. Furthermore, intermediaries are becoming the new governors of online speech and platforms now have the power to curtail online hate speech. Thus, the attention should turn to the appropriate design of legal responsibilities of intermediaries. The possible suggestions could be the following three points: Imposing liability on intermediaries for illegal hate speech requires national law and international human rights norms as the outer boundary; openness, transparency and accountability as internal constraints; balance of multi-interests and involvement of multi-stakeholders in internet governance regime.
Michael W. Müller
The article introduces three of the paradigms used to analyze internet regulation and applies them to the history of internet content control in Europe. It builds on Thomas Kuhn’s notion of paradigms and previous works on regulatory theory, defining regulatory paradigms as a “shared understanding of the purpose of regulation, of the way of thinking about how regulation works, and of the set of institutional arrangements and instruments through which regulation is conducted.” Building on this definition, the prevalent concepts of the paradigms of internet regulation refer to the intention, mechanisms, and the intensity of regulation. The article discusses these concepts with regard to the regulation of internet content control in Europe and analyzes three paradigm shifts that have taken place since the early days of the internet. These paradigm shifts concern the responsiveness, differentiation, and intensity of regulation.
This paper rethinks the reasons for and the nature and means of personal data protection. The reasons for personal data protection are that it could promote the fairness and effectiveness of information flow, help individuals develop their independent personality, and equip them to deal with risks. With respect to the nature of personal data, this paper argues that such data should not be perceived from a purely individualistic point of view. Rather, there should be a contextualized understanding of the data, which considers the appropriate information flow of personal data within a particular context. Regarding the legal framework of personal data protection, this paper suggests that consumer protection law and public law are better equipped to protect personal data than tort, contract, or property law.
Right now internet regulation is standing at the crossroads. Its problem-driven evolution has led to a conglomerate of seemingly diverse rules, which can hardly be structured as one cohesive area of law. Nevertheless, a consolidation of these rules as one cross-sectional field of law is can be identified. The discussion about the terms “internet regulation” and “internet governance” as well as recent developments in this field indicate that a paradigm shift in internet regulation is ongoing. Whereas self-regulation has been the determining mode of internet governance for a long time, internet regulation in the sense of public regulation is currently gaining more influence. This transformation is accompanied by the rising importance of a traditional paradigm of law: the idea of space. Even though the idea of space finds itself challenged with regard to the internet, it can give substance to many different aspects of internet regulation.
Volume 2, 2018 - Islamic Law and its Implementation in Asia and the Middle East
Edited by Javaid Rehman and Ayesha Shahid
The focused theme of Volume 2 is Islamic Law and its Implementation in Asia and the Middle East.
Unlike statutory and discretionary jurisdiction, jurisdiction by choice of court agreement concluded in foreign-related civil and commercial matters should be decided by the parties. As a special contract, the choice of court agreement is so independent that its validity is governed by the law chosen by the parties or by the law of the country where the chosen court is situated in case that the choice of law is invalid. Amendments to the Civil Procedure Law (hereinafter referred to as “CPL”) of People’s Republic of China (2012) should not only include the jurisdiction by choice of court agreement with foreign-related elements, but also stipulate it in a more standardized way, rather than simply refer to provision of jurisdiction by choice of court agreement in domestic cases. At the same time, the CPL should make the scope of application of choice of court agreement more clear, and provide choice of law clause and its confirmative elements when deciding its effectiveness.
All three forms of constructive delivery, namely, traditio brevi manu, traditio longa manu, and constitutum possessorium exist in both Chinese law and English law with notable differences in each form. As regards traditio brevi manu, the current unique requirement of the transferee’s prior possession being “legal” under Chinese law cannot be found in or deduced from its English counterpart. As regards traditio longa manu, the major difference between the two jurisdictions is that the third-party possessor’s attornment is necessary condition for a valid traditio longa manu in English law whereas it is not in Chinese law. As regards constitutum possessorium, while English law accepts a wider scope of scenarios than Chinese law, passing of property in English law by way of constitutum possessorium is only effective between the parties themselves but not viz a viz third parties whereas it is effective in both respects in Chinese law. Compared to a mess in English law regarding the issue of symbolic delivery, the simple, clear and negative attitude towards symbolic delivery in Chinese law is to be applauded, and is to be regarded as a Chinese voice that should be insisted on and be brought into the upcoming Book of Property of the Chinese Civil Code.
Zheng Weiwei and Ding Yu
Nowadays, the complexity of financial products makes it difficult for retail clients to identify investment risks, and there is an increasing tendency for firms, stipulated by the maximum profits, to recommend or enter into unsuitable transactions to or for retail clients while providing services of investment advice and portfolio management, which causes great losses to a significant number of investors. So, in the contemporary society, the investor suitability rules through which retail clients can purchase suitable financial products are the indispensable legal basis of investor protection. Currently, the regulations concerning investor suitability management in China have several problems, including the chaotic legal system, low effectiveness level and defective contents, which may make it difficult for suitability to be applied in justice and managed effectively. Since the UK’s investor suitability rules in the Conduct of Business Sourcebook that apply to retail clients whose contents include requirements of obtaining retail clients’ information, requirements of information to be provided to retail clients and criteria of assessing suitability are clear and comprehensive, the authors believe that the UK’s experiences can provide a great enlightenment for China to better investor suitability management rules, including integrating legal documents and optimizing effectiveness level, rationalizing application scope, adding criteria of assessing suitability and revising specific clauses.
In December 2016, the Nanjing Intermediate People’s Court in China issued its ruling in the Kolmar v. Sutex case, where a monetary judgment from Singapore was recognized and enforced against a local textile company. The case confirms that once a foreign country has taken the initiative, Chinese courts will follow up to enforce judgments from that country reciprocally. This is the doctrine of de facto reciprocity adopted by some Chinese courts. The paper surveys the judicial practice of Chinese courts and finds that this area of law is full of confusion and uncertainties due to the lack of applicable rules. Recent developments suggest that China may move away from this approach and adopt a relaxed version of reciprocity, which is worthy of close attention.
Transboundary recognition and enforcement of judgments is of increasing practical significance and it draws a great deal of efforts at various levels. However, the efforts already made are predominantly in relation to cross-border movement of monetary judgments, leaving non-monetary judgments beyond recognizability. Investigation into China’s legislation and adjudication reveals that there is no distinction made between recognition of monetary and non-monetary judgments, and practice also ignores such a distinction. Following the trend of embracing non-monetary judgments within the scope of recognizablility, China’s standpoint seemingly appears to be desirable, although the long-standing non-differentiation of monetary and non-monetary judgments is not presumed to be originally out of promoting recognition and enforcement of foreign non-monetary judgments in China. It is submitted that for promoting recognition and enforcement of foreign non-monetary judgments, China shall introduce independent rules in order to facilitate the circulation of such judgments, which merits a special treatment. For parties to seek the recognition and enforcement of such judgments, prior to any overhauling of the current legal regime, they have to follow China’s persisting general legal regime and judicial practice regarding recognition and enforcement of all categories of foreign judgments, and a special call is made for particular attention to the reciprocity requirement and due service requirement.
Kwang Hyun Suk
This article discusses the rules for recognition and enforcement of foreign judgments in the Republic of Korea (hereinafter referred to as “South Korea” or “Korea”). Articles 217 and 217-2 of the Civil Procedure Act of Korea and Articles 26 and 27 of the Civil Enforcement Act of Korea provide for the recognition and enforcement of foreign judgments respectively. Korea has not entered into any bilateral or multilateral treaties regarding the recognition and enforcement of foreign judgments and is not a party to the Convention on Choice of Court Agreements. The article also considers the current undesirable status of recognition and enforcement of judgments in the region consisting of China, Japan and South Korea (hereinafter referred to as “Region”) and suggests a course of action to be taken to improve the situation. The author believes that the experts of the Region should embark upon a project to improve the current situation and that the first step should be to exchange and gather information on the current legal regime of the countries in the Region on the recognition and enforcement of judgments. The author looks forward to future cooperation among the experts in the Region on this topic and is confident that the reciprocity requirement, which currently is a major obstacle to the mutual recognition and enforcement of foreign judgments in the Region, will be overcome in the near future.
This article deals with reciprocity requirement for recognition of foreign judgments in Japan. Following German law, Japanese law requires reciprocity to the rendering state in addition to the jurisdiction of the state, the service of process, and the compatibility with Japanese public policy. Although Japanese courts have rarely refused the recognition of foreign judgments for lack of reciprocity for a long time, some Chinese judgments recently have not been recognized for this reason. The author clarifies first with historical review what was the purpose of the Japanese legislator, when the original law of 1890 required the reciprocity by international treaties, and when later the reform law of 1926 required the simple reciprocity that is similarly provided in the current law. The author surveys then the Japanese case law concerning the reciprocity requirement after the reform of 1926. The author focuses further on the reciprocity between Japan and China and compares the Japanese practice with the German one that led to a different result. Last, it is concluded that the reciprocity requirement is contrary to the protection of human rights under Japanese constitution.
Wang Zhuhao and Huang Yanni
In Chinese criminal procedure, the issues of illegally obtained evidence and witnesses not appearing in courtroom are under fire, which is partly rooted in the fact that the Chinese courts do not limit the admissibility of pre-trial testimonial transcripts in judicial practice, zealously pursue the “truth of fact” while disregard defendant’s right to confront. Focusing on the admissibility of pre-trial testimonial transcripts, the article will first analyze the current legislations and judicial practice in China, then from a comparative perspective introduce the corresponding written testimony rules of the International Criminal Tribunal (Court) which distinguishes the admissibility of different categories of written testimony, with an aim of both protecting the criminal defendant’s right of confrontation and pursuing truth in fact-finding. The practice in International Criminal Tribunal (Court) provides a good starting point for China to rethink its own practice and learn from.
Zhu Yan and Vadim Filimonov
China and some of its trade partners in Western Europe apply different legal regimes for international carriage of goods by railway — respectively Agreement on International Railway Freight Transportation (SMGS) and Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM). For transportation of goods by railway between China and Western Europe both the CIM and the SMGS are often applicable. China’s initiative “the Belt and Road” promotes development of railway transport in Eurasia and creates new incentives for comparative study between those two international legal systems. This article provides a brief historical outline of comparative studies between the CIM and SMGS. This article also purports to show that some similarities and differences between the two regimes might be better understood from the perspective of comparative legal history. Taking into account inter alia the common origin of the current versions of the CIM and SMGS in the 4th revision of the CIM of 1933, differences and similarities between two legal regimes have been analysed with regard to the following topics: the scope of application of the CIM and SMGS; the nature of the carrier’s liability under the CIM and SMGS; exclusivity of the CIM, exclusivity of the contract of carriage under the SMGS; period of responsibility; persons for whom the carrier is liable.
This article investigates what might be characterised as “the forensic challenge” for criminal adjudication and clarifies its nature and scope. The “challenge” identified is complex, dynamic and multifaceted, encompassing a variety of issues and debates concerning the ways in which forensic science evidence is validated, generated, presented, tested, evaluated and utilised in criminal proceedings. Common law evidentiary principles governing the admissibility of scientific evidence and expert witness testimony are reviewed and the underlying assumptions and potential weaknesses of adversarial trial procedure are critically considered. The discussion is pitched at the generic level of recurring intellectual puzzles, institutional design, regulatory frameworks, procedural structures and processes, macro-policy choices and methodological prescriptions, with the intention of making it relevant to an international audience. Aspects of the procedural law and adjudicative practice of England and Wales, and the regulatory context of UK forensic science, are offered as concrete illustrations with the potential for illuminating comparative extrapolation to other legal systems. In conclusion, the article draws out specific implications for Chinese scholarship, law reform and policymaking in relation to scientific and other expert evidence, and advances a bold suggestion for entertaining an unconventionally expansive conception of “forensic science” and, correspondingly, of the challenges it presents.
Edward J. Imwinkelried
In the past, international Evidence law reformers have focused primarily on substantive evidentiary doctrines. However, for reforms to be effective, the courts and legislatures must state the revised doctrines in a form that promotes the overall objectives of the legal system. The basic choice facing reformers is among a creed identifying broad goals, a code stating flexible principles, and a catalogue prescribing detailed rules. In the past, especially in the United States, there was a consensus among Evidence scholars that the code format is preferable. However, if a key objective of a national legal system is to encourage pretrial disposition of cases, the courts and legislatures should give serious thought to utilizing a catalogue format. That format is especially attractive in the doctrinal areas such as privilege in which evidentiary rules are intended to affect primary behavior outside the courtroom.
This article is a response to Morality And Law In A Global Society: A Place For Natural Law Theory? The first part is a summary and comments on Honorable Rollin A. Van Broekhoven’s survey of the natural law tradition and its relevance to the analysis of the controversial U.S. Supreme Court decisions. Then it addresses Mencius and the Chinese natural law tradition based on the researches of Hu Shih and John C. H. Wu, and the affinity of the natural theories of Mencius and Thomas Aquinas are explored. The third part analyses the sensational case of Yu Huan (2017) from the point of view of natural law and takes it as an example of the relevance of natural law to the theory and practice of contemporary Chinese law.
Zhang Baosheng and Yang Ping
This article analyses Chinese traditional evidence theories that have evolved over a long period of time, to explore which theory, between objectivity and relevancy, best represents the basic attribute and logical thread of evidence. These theories are considered in the context of issues arising in evidential adjudication, including: the “Mirror of Evidence,” truth, the probability of proof standard, the choice between a notion of pursuing 100-percent certainty in adjudication and that wrongful acquittals are better than wrongful convictions, and the statutory proof doctrine comparedwith the system of free proof. Finally, the article presents the framework of and methods for drafting provisions of procedural evidence of the People’s Court.
Daniel J. Capra
This piece is an echo to one of the main subjects of the Sixth International Conference on Evidence Law and Forensic Science which is to determine what evidentiary reforms are necessary for regulating forensic expert testimony, and how those reforms might be implemented. In United States, the predominant way of evidentiary reform is through rulemaking. As the Reporter of Judicial Conference Advisory Committee on the Federal Rules of Evidence since 1996, the author, with a pragmatic spirit throughout the article, examines such an effort at the federal level of U.S. in six parts (levels), starting from the most general, abstract level till finishing with the most detailed and substantive points. Part I begins with a brief introduction of the hierarchies of evidentiary rulemaking authorities at the federal level of the United States, various interested groups and their interesting interactions in the rulemaking process. The author then shifts to the general topic of writing rules with a specific focus on the level of detail that is to be provided in doing so; Part II further narrows down the scrutiny into writing a rule on forensic expert testimony with an emphasis on the necessity of making such a rule change to the current general standards of FRE; Part III directly addresses the challenges of drafting a rule on forensic evidence in FRE, including a comparation of various alternative drafting models; Part IV and Part V respectively discusses the Reporter’s comments and the Justice Department’s concerns over the drafted rules; and Part VI briefly discusses the feasibility and effectiveness of a Best Practices Manual on forensic evidence in lieu of rulemaking.
Tragic consciousness, which originated in childhood, is complex compassion based on strong self-consciousness. After being moralized, tragic consciousness presents the dichotomy of good and evil, which has not only profoundly affected the formation of natural language, but also cradled the theory of natural law and religious spirit. Modern jurisprudence attempts to get rid of the shackles of classics and Christian humanism, to shape the autonomous and self-consistent image of law with the de lege lata as center. However, it is difficult for modern jurisprudence to surpass the natural language which rooted in tragic consciousness, and impossible to neglect or deny the independent value of the human. The inherent conflict within the rule of law makes ironically a tragedy, especially in the context of contemporary China.
China has a long history of constitutional jurisprudence, bearing different academic missions in different eras. China’s constitutional jurisprudence, characterized by its academic logic and principled nature, has not only facilitated social development and progress but also actively played academic functions during the Chinese reform and opening up. This paper considers the social changes during the last 40 years of the policy’s implementation as the background and, by employing standardized and literature analysis methods, combs the main progress and evolution of the knowledge system during the 40 years of constitutional jurisprudence study, followed by a look into its future.
MA Huaide and Kong Xiangwen
Based on major landmark events and the rule of law development, the administrative rule-of-law construction in China, over 40 years since the initiation of the reform and opening up policy, can be divided into four stages: the “recovery” stage; the “rapid development by focusing on administrative legislation” stage; the “implementing the basic policy of law-based governance of the country and focusing on law-based administration of government” stage; and the “simultaneous advancement and integrated construction in building the rule of law in China” stage. Over the past 40 years, China’s administrative rule-of-law construction has achieved fruitful results in terms of theoretical shaping, system construction, and concept popularization. The future construction of the administrative rule of law should promptly respond to the theoretical needs put forward by state governance, administrative changes, emerging science, and technology development, and it should continue to improve the theoretical system of administrative law with Chinese characteristics; we should strengthen legislation in key areas, solve practical problems in the construction of a government under the rule of law, and promote the effect of law enforcement and system implementation. We should also focus on improving the awareness and qualities of the rule of law at all levels of leading cadres and form a good rule of law atmosphere in the entire society.
Since reform and opening up, the development of Chinese jurisprudence has experienced a tortuous course, the exploration of which is divided into three stages: the entanglement of class nature, the dual role of Western jurisprudence, and the return of Chinese jurisprudence. The author proposes a series of topics in eight fields, namely, the changes of the political and legal thoughts of the leaders of the Communist Party of China, socialist jurisprudence with Chinese characteristics, theory of the rule of law, study of sociology of law, study of comparative law, study of law and globalization, theory of legislation, and evaluation of the rule of law. Some of these topics have already been solved. For others, only the basic framework for solving the problem has been proposed. Even for the solved problems, due to social and economic changes, the solutions will need to be re-proposed. Chinese jurisprudence should face China’s problems.
Zhao Bingzhi and Yuan Bin
The year 2018 marks the 40th anniversary of China’s reform and opening up. In these past four decades, research in Chinese criminal law has recovered, stabilized, and developed, before it reached a stage of prosperity. The approach to research in criminal law has shifted from being one-dimensional to being comprehensive. The law now focuses on diverse issues, as opposed to singular ones. The discourse has shifted from an issue-led approach to a more systemic one. The tools used to interpret the law have shifted from substantive ones to a combination of substance and formality. As a result, the number of studies has increased, and in-depth research has grown over time. In the future, research in criminal law will become more specialized and diversified. Researchers will promote consciousness further, broaden their horizons, and promote fruitful research in criminal law.
Edited by Ying-jeou Ma
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State Practice in Asia-Pacific States
Edited by Anastasia Telesetsky, Warwick Gullett and Seokwoo Lee
Globalization has been accompanied by the spreading of bribing foreign officials. In order to curb the transnational corruption, the US has pioneered the anti-foreign bribery through enacting the 1977 Foreign Corrupt Practice Act (FCPA), which also stimulated the formulation of international anti-corruption agreements. Even though the 8th Amendment of China’s Criminal Law contains a concise provision on sanctioning bribing foreign officials, however, China still does not have a comprehensive anti-foreign bribery legal mechanism. As the second largest economy of the world, China seems inevitably to have its own anti-foreign corruption statute. This article aims to use the U.S. FCPA as an analytical subject to discuss whether or not China has the necessity of enacting its own statute of foreign corruption prevention. The issues such as extraterritorial jurisdiction and compliance burden should also be considered in the enactment of China’s possible anti-foreign bribery law.
A well-developed set of international anti-corruption tools now exists. These range from broad conventions to focused initiatives in specific policy areas. This article argues that international agreements work best when they are focused and they speak to the common interests of the parties involved. Solutions need to be creative, they need to bring in a broad coalition of stakeholders and they need to be focused on specific problems. International agreements need to help states with good quality institutions of governance focus on developing transparency initiatives, accountability drives and nuanced efforts to tackle particular national variants of “legal corruption.” In countries with patchy institutions of governance the scope for international influence is broader, while in states with serious governance challenges the best international anti-corruption efforts will often have surprisingly little to do with corruption at all. In a state where the rule of law is patchy or non-existent then anti-corruption laws (or indeed laws more generally) mean very little. The challenge here is to improve the basic tools of governance in the knowledge that only then can the issue of corruption be brought on to the agenda.
Huang Tao and He Weiping
China’s securities markets have been experiencing high growth this year. The Shanghai Stock Exchange is now ranked as the fourth largest stock exchange of the world. So, who is protecting the Chinese investors in this fast growing and potentially volatile market? The Incomplete Law Theory of Pistor and XU contends that regulators, s they are more efficient, play a more dominate role than the judiciary in protecting investors in the securities markets. This theory to some extent explains why the China’s judiciary has been inactive in protecting investors in China, the host of the third largest securities market in the world. However, this article finds that the theory is not able to adequately explain the investor protection mechanism in China. We find that by deploying various political resources, the Chinese state plays a direct role in protecting the interest of investors that is often more significant than that played by judicial or regulatory authority action.
Editors Frontiers of Law in China
The Judicial Yuan, a model of supreme judicial organization peculiar to China’s recent history, was one of the outcomes of several decades of evolution from the legal reform in the late Qing dynasty to the passage of Constitution of the Republic of China (ROC) in 1947. Its predecessor, the Dali Yuan established in 1906 by the Qing government, not only had the supreme judicial power and the power of abstract interpretation, but also enjoyed the power of interior administration independently from the outset. The Judicial Yuan, established in 1928, inherited the judicial administrative power of Dali Yuan and further expanded it. The Judicial Yuan also inherited Dali Yuan’s power to unify the interpretation of law and regulations, and expanded the power of abstract normal control (Normenkontrolle) to constitutional interpretation. The Council of the Grand Justices of the Judicial Yuan had developed the paradigm of constitutional court and shared similarities with the Federal Constitutional Court of Germany. It is safe to conclude that even before the promulgation of the Constitution of the ROC, the Judicial Yuan was fairly well-developed in institutional terms. The key characters of the ROC Judicial Yuan include the special arrangement of judicial administration, a centralized judicial review by the Council of the Grand Justices and a diverse judicial trial mode.
Lu Haina and Hao Wanyuan
Statelessness is an old and continuous problem existing in many countries around the world. Statelessness is caused by various reasons such as the conflicts of the nationality laws of different countries and international marriages. This article analyzes the legal framework and practices concerning nationality issues in China from the perspectives of China’s international obligations to protect the rights of stateless persons, especially women and children. This article also analyzes several stateless cases, in particular the de facto stateless situation of the “Vietnam brides” and their children in China. At last, the article gives recommendations in the light of international law and practices of the United Nations High Commissioner for Refugees on the reduction of statelessness in China.
Philip Ebow Bondzi-Simpson and Felix Awuah
Sino-Ghana business relationship has grown tremendously over the past two decades. The legal environment of this relationship will be analyzed critically and suggestions for improvement will be made in this article to further enhance this burgeoning relationship. In October 1989, Ghana and China signed an agreement concerning the encouragement and reciprocal protection of investment, known as the China–Ghana Bilateral Investment Treaty, which came into effect on November 22, 1991. There will be a review of this agreement which sought to provide an equitable treatment and enjoyment of protection in investments between the two countries based on the Most Favored Nation principle.
This contribution concerns social protection innovation in China and Africa as regards aging populations and social security extension to informal workers. China has adopted and extended several contributory schemes and non-contributory arrangements. Yet, the country faces significant challenges in terms of a funding gap, high urban contribution rates, inadequate benefits and an existing benefit gap, inequality in the treatment of public versus private sector workers, and insufficient migrant worker coverage and portability arrangements. While population aging is less of a problem in most African countries, African retirement arrangements experience challenges in relation to funding limitations, and a host of shortcomings as regards contributory schemes and non-contributory arrangements.
China has seen a decline in the numbers of those who work in the informal economy. Ensuring proper coverage of such workers have included strengthened labor market regulation: An integrated approach is called for. In Africa, access by these workers to social security is limited. Attempts to achieve coverage extension have included conceptual developments, institutional initiatives, tailor-made design modalities, and a range of supportive arrangements (such as access to finance and to markets). All these developments reflect a new appreciation of the leading role of the state in the provisioning of social security.
Critical Legal Scholarship was first introduced to Chinese legal academia in late 1980’s, and gained great attentions in the following decade. Later on, however, Chinese jurists showed little interest in exploring more of Critical Legal Scholarship because of their oversimplification of Critical Legal Scholars as indeterminists, deconstructionists, extremists and nihilists. This article points out the typical, gross misconceptions of Chinese jurists to Critical Legal Scholarship, and explores the reasons of such misconceptions. The author of this article hopes that his representation of Critical Legal Scholarship would help to reopen the door for further communications between the Critical Legal Scholarship and their audiences in China. Remarks on how to approach Critical Legal Scholarship further from a Chinese perspective are provided at the end of this article.