Columbia Journal of Asian Law最新文献

{"title":"China’s tortuous path toward ending torture in criminal investigations","authors":"I. Belkin","doi":"10.4337/9781781955857.00011","DOIUrl":"https://doi.org/10.4337/9781781955857.00011","url":null,"abstract":"","PeriodicalId":239270,"journal":{"name":"Columbia Journal of Asian Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129963299","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":"Dawn of a New Constitutional Era or Opportunity Wasted? An Intellectual Reappraisal of China’s Anti-Monopoly Law","authors":"Oliver Zhong","doi":"10.2139/SSRN.1596814","DOIUrl":"https://doi.org/10.2139/SSRN.1596814","url":null,"abstract":"China’s nascent “competition law” legislation, the Anti-Monopoly Law, has piqued the interest of many an antitrust practitioner. This Article argues that the attention is well-deserved, but for the wrong reason. The AML, it argues, is far broader than a competition law, and one is already on a misleading track attempting to read it within an antitrust paradigm. Legislations work only within a certain constitutional context, and the Chinese one is particularly complex. An intellectual reappraisal is due. The Article aims to do three things: to reconceptualize the AML as promulgated and identify major policy ambiguities; to review official updates and developments since promulgation with an eye to clarify such ambiguities; and to place the AML in China’s intellectual tradition to ascertain what it signifies for the present and augurs for the future.","PeriodicalId":239270,"journal":{"name":"Columbia Journal of Asian Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121814930","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":"Assessing China's Legal Reforms","authors":"B. Liebman","doi":"10.7916/CJAL.V23I1.3284","DOIUrl":"https://doi.org/10.7916/CJAL.V23I1.3284","url":null,"abstract":"Over the past thirty years China has engaged in what is perhaps the most rapid development of any legal system in the history of the world. The Chinese legal system has been fundamentally transformed since 1978. At the beginning of the reform era there were few laws or trained personnel. Today, China has sophisticated legal institutions, thousands of laws and regulations, and the third largest number of lawyers in the world. Law has begun to regulate both state and individual behavior in ways that were inconceivable in 1978. Commitment to the rule of law has become an important part of state ideology and state legitimacy. Popular understanding of law has expanded dramatically and the legal system has become an important route for addressing grievances and resolving disputes.","PeriodicalId":239270,"journal":{"name":"Columbia Journal of Asian Law","volume":"263 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116325439","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":"Why Indonesian Corporate Governance Failed - Conjectures Concerning Legal Culture","authors":"B. Tabalujan","doi":"10.2139/SSRN.306120","DOIUrl":"https://doi.org/10.2139/SSRN.306120","url":null,"abstract":"This paper focuses on Indonesian corporate governance in the light of the Asian financial crisis of 1997-1999. Much of the blame for Indonesia's plight has been attributed to poor corporate governance. Unfortunately, the current corporate governance literature is unhelpful for the purpose of understanding what specific aspects of Indonesian corporate governance are to blame. Accordingly, I undertake case studies of three Indonesian banks at critical junctures in their corporate lives during the 1990s. I find that, in each instance, key players acted in ways which cannot be explained fully by the corporate governance principles then in force. I postulate that the missing ingredient is \"legal culture\" as defined by Stanford University legal sociologist, Lawrence M. Friedman. Without the necessary legal culture to support major changes in the legal and institutional framework for corporate governance, many of the newly transplanted corporate governance concepts from overseas will simply not work in Indonesia. I then draw three practical lessons based on the notion that legal culture plays an important role in the corporate governance phenomenon. Although these lessons are derived from the Indonesian experience, they may be relevant to other developing and transitional economies which are seeking to improve their corporate governance systems.","PeriodicalId":239270,"journal":{"name":"Columbia Journal of Asian Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127240162","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":"Judicial Inactivism in Protecting Financial Consumers against Predatory Sale of Retail Structured Products: A Reflection from Retail Structured Notes Lawsuits in Taiwan","authors":"Christopher Chen Chao-hung","doi":"10.7916/CJAL.V27I2.3343","DOIUrl":"https://doi.org/10.7916/CJAL.V27I2.3343","url":null,"abstract":"This article analyzes 310 structured note lawsuits in Taiwan between 2000 and 2013 to examine courts’ attitude in dealing with claims of misselling retail structured notes. We find that courts were generally not favorable to retail investors. This provides a contrast with the financial regulator’s efforts to improve financial consumer protection since 2008. By examining plaintiffs’ key arguments and courts’ rulings, we find that it was difficult for investors to fulfill their burden of proof and courts were reluctant to award remedies when investors did sign on a contractual document confirming his knowledge on a few matters. While regulators are right to strengthen financial consumer protection, this article argues that Taiwan courts’ inactivism to protect retail investors could be justified. However, regulators should pick up from what courts have left to ensure that customers fully comprehend the consequences when they sign on contractual documents, to avoid banks classifying customers as active investors too easily, and to clarify banks’ duties toward a customer after a contract is signed. Regulators should also reconsider its regulatory structure to ensure foreign banks would not be able to issue securities to raise funds from local investors by way of a shadow banking system.","PeriodicalId":239270,"journal":{"name":"Columbia Journal of Asian Law","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116009741","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":"Dispute Resolution in China after Deng Xiaoping: Mao and Mediation Revisited","authors":"Stanley B. Lubman","doi":"10.4324/9781315204826-20","DOIUrl":"https://doi.org/10.4324/9781315204826-20","url":null,"abstract":"Dispute resolution, like all other aspects of Chinese society, is being reshaped by extensive reforms that began in 1979. The changes do not only concern Chinese, who are now sometimes able to assert rights that they have never had before, but foreigners as well. As China's influence in the international community grows, other nations must also be concerned about the capacity of Chinese legal institutions to perform their declared functions. Notably, for example, if China accedes to the World Trade Organization the Chinese government will be obligated to make China a more rule-based society than it has ever been. Larger issues are involved, too, especially China's ability to move toward the rule of law that its leaders have proclaimed as a goal. In view of these concerns, Western analysis of the functions and operation of the Chinese courts and related institutions should be deepened. Studying Chinese law today requires that we look beyond the rapid changes that have aroused world-wide attention since they began. It is necessary to consider both the starting point of legal reform and the obstacles to future progress. I have therefore looked back at Chinese","PeriodicalId":239270,"journal":{"name":"Columbia Journal of Asian Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114740644","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":"Tax Losses and Excessive Risk Taking under Limited Liability: A Case Study of the TEPCO Bailout after the Fukushima Nuclear Disaster","authors":"Takayuki Nagato","doi":"10.7916/CJAL.V32I2.3373","DOIUrl":"https://doi.org/10.7916/CJAL.V32I2.3373","url":null,"abstract":"It is commonly accepted in the tax law literature that, in theory, business tax losses resulting from risk taking should be fully refundable to taxpayers. Further, when such refunds are unrealistic, tax losses should instead be freely transferable or carried forward without time limitations to achieve tax neutrality on risk taking. The general position taken in the literature assumes that such risk taking is socially desirable. However, that assumption does not always hold. For example, the corporate law literature clearly establishes that the rule of limited liability of shareholders encourages corporations to take excessive risks that might harm social welfare. Accordingly, this study theoretically examines the relationship between tax losses and limited liability. \u0000Furthermore, this study conducts a case study to empirically demonstrate what kind of tax problem can happen with respect to excessive risk taking. Specifically, the bailout of Tokyo Electric Power Company Holdings (TEPCO) after the Fukushima Dai-ichi nuclear disaster caused by the Great East Japan Earthquake on March 11, 2011, provides an informative case study for a further analysis of this relationship. TEPCO ended up owing over 7.9 trillion yen of compensation liability for the damages caused by its shareholders’ excessive risk taking under limited liability. Although TEPCO’s lack of resources to fully compensate for the damages was easily foreseen, the company did not go into bankruptcy. Instead, the government rescued it without wiping out its existing shareholders. The problem does not end there because the TEPCO bailout created a tax problem. This study questions the appropriateness of allowing TEPCO to deduct its tax losses. This is because TEPCO can circumvent the strict time limitation of the tax loss carryforward period owing to the peculiar legal structure of its bailout scheme. In other words, TEPCO’s existing shareholders, who are assumed to have taken excessive risk can enjoy tax windfall that other corporations’ shareholders cannot. This study considers possible, although imperfect, legislative solutions to the problem.","PeriodicalId":239270,"journal":{"name":"Columbia Journal of Asian Law","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127433624","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}