{"title":"TRANSCEND EMPIRICISM LEGISLATION Compile Civil Code","authors":"Guangxing Zhu","doi":"10.1080/20517483.2015.1049000","DOIUrl":"https://doi.org/10.1080/20517483.2015.1049000","url":null,"abstract":"China's current civil law has gradually developed under guidance of the two-step civil legislative strategy to satisfy the practical need for reform and opening-up policies over the last thirty years. Strong empirical legislation thinking causes severe defects in the internal and external system of civil law, and produces a swelling number of judicial interpretations in the implementation of the laws. A wide variety and a huge number of judicial interpretations have constituted a serious deconstructive tendency in civil law. To accommodate the new structures of the State and civil society arising in the wake of extensive reform and the promotion of the rule of law, the civil legislation of China should conform to the trend, by shifting from empiricism to rationalism and codifying civil law. For this purpose, the legislature should have a deep understanding of the attributes of private law, while abandoning the clichéd idea that pre-legislation will hamper the initiative of the people.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123629931","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"THE TRANSFORMATION OF CHINA'S SOES","authors":"F. Deng","doi":"10.1080/20517483.2015.1048994","DOIUrl":"https://doi.org/10.1080/20517483.2015.1048994","url":null,"abstract":"Since the 1990s China has largely adopted the Singapore SOE model, which relies on private-like corporatization and the pursuit of profit. This paper replays the political and economic chess to answer why the Singapore model was chosen. To this end, it demonstrates how the transformation through corporatization, under a newly founded legal system called the “State-Owned-Assets management,” was gradually embraced by Chinese administrative bureaucrats even though the change faced serious institutional obstacles. This article concludes with a critique of how the transformation of China's SOEs has now mutated to resemble a system of Crown property.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126520298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"THE LEGISLATIVE PROCEDURE OF COMPILING CIVIL CODE IN A “MODE OF CODIFYING NON-BASIC LAWS”","authors":"Zhu Wang","doi":"10.1080/20517483.2015.1049001","DOIUrl":"https://doi.org/10.1080/20517483.2015.1049001","url":null,"abstract":"Since the assembly of civil laws is different from the compilation of a civil code, a substantial codification is a necessary legislative process to establish basic civil law under the framework of the Constitution. Unless a civil code is compiled in a timely manner, problems will arise; therefore, it is necessary to compile a civil code in a substantial way as soon as possible. Despite the magnitude of resources accumulated in the process of the fourth attempt to draft a civil code, the Legislature is still faced with three major difficulties: lack of political motivation, limited deliberation capacity, and a legislative scheme that conforms to the Constitution. Pragmatically, it is suggested that a mode of codifying non-basic laws be followed in four steps: establishing an Expert Committee for Compiling Civil Code, enacting a Legislation Scheme for Civil Laws by the Standing Committee of the National People's Congress, drafting a Codification Scheme for Civil Code, and enacting a Codification Scheme for Civil Code by the National People's Congress. These measures will guarantee that a civil code can be enacted in a constitutional way. Before the Legislature decide to compile a civil code, the civil law academic community may start investigation into civil customs through various channels. The ultimate goal of such investigation would be to develop a new mode of drafting civil code through integrating civil laws from different jurisdictions.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116625431","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"THEORETICAL FOUNDATIONS OF LAND TAKING POWERS IN CHINA","authors":"Chun Peng","doi":"10.1080/20517483.2015.1048998","DOIUrl":"https://doi.org/10.1080/20517483.2015.1048998","url":null,"abstract":"For years massive land takings have been a breeding ground to controversies and conflicts in the Chinese society. The pressing challenges facing land takings and its relevant laws have largely been framed in the existing literature as a contemporary issue. Yet very little attention has been paid to the historical background against which large-scale land takings take place in China. This paper fills this gap by unearthing the theoretical foundations of land taking powers in modern China. It provides a detailed analysis of the Marxist-Soviet-Chinese communist tradition and the nationalist tradition of theories and exercises of the power of non-compensatory nationalization before discussing the impact of classical liberal thinking on property and the idea of socialized property upon the laws on compensatory expropriation in the early 1900s. It argues that despite the notable differences among these theoretical formulations, there is a common legacy that conceptualizes land takings not as an action to be undertaken diffusely and occasionally for specific technical purposes, but an instrument to be used systematically and frequently in order to achieve pre-conceived plans made by the party-state. Although no causal relationship is implied that the contemporary problem of expansive land takings is merely the continuation of history, through exposing the historical evolution of ideas and ideals justifying and guiding land takings in early 20th century China, this paper offers a new perspective on thinking about the present situation.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131001388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"CIC's INVESTMENT IN EUROPE","authors":"Li Guo","doi":"10.1080/20517483.2015.1048997","DOIUrl":"https://doi.org/10.1080/20517483.2015.1048997","url":null,"abstract":"Host country regulatory environment significantly affects the overseas investments of the China Investment Corporation (CIC). As the major targets for many Sovereign Wealth Funds (SWFs), European companies are of strong and long-term interest to CIC too. In response to the different regulatory philosophies and measures, CIC has adopted varied models when approaching companies in the UK, Germany, and Italy. The approaches vary by whether they are direct or indirect, and through outsourcing or portfolio. With respect to the SWFs and the countries invested in, there exists a dilemma whose best solution is to bilaterally depoliticize, utilizing a more moderate strategy and making most use of legal tools such as disclosure. This approach achieves a win-win equilibrium and allows for collaboration in an atmosphere of reciprocal trust and mutual benefit.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133700942","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"WHAT FELLED ARTHUR ANDERSEN? IT DEPENDS … ","authors":"Preston M. Torbert","doi":"10.1080/20517483.2015.1049002","DOIUrl":"https://doi.org/10.1080/20517483.2015.1049002","url":null,"abstract":"Arthur Andersen LLP was one of the world's five largest accounting firms and one of the world's premier professional organizations with a stellar reputation for integrity and trustworthiness. But it collapsed in 2002. Many reasons have been given for its fall, but each depends on the predilection of the inquirer. A more comprehensive explanation takes into account a complex web on interrelated factors.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129543545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Crimes of Fraud and Fundraising Fraud","authors":"Gao Yandong","doi":"10.5235/205174814814222513","DOIUrl":"https://doi.org/10.5235/205174814814222513","url":null,"abstract":"The core issues of the WU Ying Case include whether Wu committed the crime of fundraising fraud and whether she should be sentenced to death. The key element of the crime of fundraising fraud is “by fraudulent means.” To examine what constitutes “fraudulent means” in this case, one should consider the basic principles of the crime of fraud and the specific constraints that apply to fundraising. One should not apply the elements of fraud mechanically, since they evolve over time. Instead, one should narrowly interpret the concept of “fraudulent means” for the purpose of adjudicating fundraising frauds. What constitutes “fraud” depends on the context. For example, the definition of “fraud” should be different in daily life, in ordinary commercial activities, and in investment and speculation. One should critically read the legislative justification for applying the death penalty to the crime of fundraising fraud, taking into consideration factors such as social harm, the essence of different crimes, the defendant's culpability, and the victim's fault.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123600913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Study on the Non-Statutory Factors in Death Penalty Trials in China","authors":"Zhang Xinxiang","doi":"10.5235/205174814814222568","DOIUrl":"https://doi.org/10.5235/205174814814222568","url":null,"abstract":"Limited by the legal and social structure of a death penalty case, the co-existence of two models of judgments (sociological model and jurisprudential model) is inevitable during the trial. Non-statutory factors, as sources of law, reflect both the value judgment of a case's social structure and the logical inference of a case's legal structure in death penalty trials. Because of that, non-statutory factors should be brought into criminal adjudication norms. However, based on the spirit of rule of law, in modern criminal trials the non-statutory factors should not be considered as an independent criminal adjudication norm but only attachments to statutory law. This is the only proper way to embody the virtues contributed by them during the trials. Meanwhile, there should be some institutional regulations when bringing non-statutory factors into criminal adjudication norms, so that on one hand we could strengthen the judicial control on death penalty cases, and on the other hand we could make death penalty trials more rational in judgment, more standard in procedure, and safer for our society.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"5 8","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120855747","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reflections on the Effects of Foreign Judg-Ments in Recognizing Countries","authors":"Z. Wenliang","doi":"10.5235/205174814814222504","DOIUrl":"https://doi.org/10.5235/205174814814222504","url":null,"abstract":"Some legal systems account for the effects to foreign judgments through “recognition” of the foreign judgments. There are three main approaches to recognizing the effects to foreign judgments: the “extension of effects” approach, the “equalization of effects” approach and the “combined effects” approach. The approach chosen can significantly affect relevant stakeholders, including but not limited to the litigants, the recognizing country, the requested court and the original country. The more deeply the stakeholders' interests are coordinated, the better the approach will be. In China, the relevant scattered rules suggest the country as has adopted the “equalization of effects” approach; this approach entails an investigation into effects of Chinese judgments. Under Chinese law, foreign judgments may have three effects: the “claim preclusive” effect, the “issue preclusive” effect, and the “enforcement” effect. In practice, Chinese courts show no familiarity with the effects of foreign judgments in China. However, as international litigation and judicial cooperation progress, the issue of effects of foreign judgments in China will definitely become more prominent.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"129 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130242237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Rinminbi Internationalization","authors":"Z. Zhiyong","doi":"10.5235/205174814814222559","DOIUrl":"https://doi.org/10.5235/205174814814222559","url":null,"abstract":"The RMB has been on the road to internationalization since the launch of the pilot program of RMB settlement in cross-border transactions in July 2009. China has established the basis legal framework to facilitate the international use of RMB and RMB internationalization has made significant progress. However, the degree of internationalization of the RMB is still low. In order to promote further internationalization of the RMB, China's economic system must be more open and free. And China must make RMB convertible under capital accounts, build a legal architecture that can protect the interests of the parties to RMB-denominated transactions while also strengthening financial supervision, and expand the international framework for the international use of RMB.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116702526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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