Asia Pacific Law Review最新文献

{"title":"Judges of the Supreme Court of India 1950–89","authors":"S. Sonkar","doi":"10.1080/10192557.2022.2033090","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033090","url":null,"abstract":"Judges play a pivotal role in the administration of justice. For this reason, they are not only expected to be impartial and independent but also to appear to be impartial and independent. Their decision-making should be guided by the parameters of the law, legal principles and the nature of the issues pertaining to the dispute before them, and their legal reasoning explained in judgments with intellectual honesty. Regardless of their personal views, they must decide, evaluate and analyse cases with the utmost objectivity. Yet, it is also often observed that, in formulating judicial decisions, judges are sometimes unable to divorce themselves completely from the values, beliefs, policy preferences, and political philosophies that they have cultivated over decades of judicial service. They may have different ideas about the law and justice. It is in this context that judicial decisions are often said to reflect the orientation of judges, ie whether they are liberal, moderate or conservative. Nonetheless, the reasons why a judge has certain attitudes, leanings, convictions, and views may not be easily decipherable.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"422 - 425"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44788972","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Korea’s experimentation in legal services market liberalization: lessons learned and options for reform","authors":"Tae-jung Park, Y. Ko","doi":"10.1080/10192557.2022.2033080","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033080","url":null,"abstract":"ABSTRACT Korea amended the Foreign Legal Consultant Act in 2016 to fulfil its free trade agreement commitments to Phase 3 legal services market liberalization. This Phase 3 liberalization allowed foreign law firms to form Joint Venture Law Firms with Korean law firms and practice in certain areas of local laws by employing Korean-licensed lawyers. However, free trade agreement contracting parties heavily criticized the terms and conditions of Joint Venture Law Firms and argued that these would discourage foreign law firms from entering joint ventures, thus significantly undermining the effect of Phase 3 liberalization. Indeed, the Joint Venture Law Firm provisions have not been used, even after five years since Phase 3 liberalization. With this backdrop, this article examines: (1) Korea’s history and past struggles to implement the Foreign Legal Consultant Act; (2) Criticisms of the Act and their legal validity; and (3) The costs and benefits of policy options for Korea’s future legal services market liberalization. This analysis provides a foundation for discussing future regulatory reforms of the Foreign Legal Consultant Act.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"4 5","pages":"221 - 242"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41244818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Eliminating zombie companies through insolvency law in China: striking a balance between market-oriented policies and government intervention","authors":"Jingchen Zhao, S. Wen, R. Parry, Chuyi Wei","doi":"10.1080/10192557.2022.2033083","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033083","url":null,"abstract":"ABSTRACT Zombie companies emerged in China for economic and social reasons, particularly as a result of earlier expansionary economic policies. Having been kept alive through subsidies for social and political reasons more recently zombie companies have been the target of ambitious elimination policies in China. Local governments have been given targets for zombie company elimination and there have been significant achievements in zombie market exits. Yet an examination of case law reveals limited usage of insolvency laws in the processes used and this is unsurprising given the nascent state of insolvency law and supporting institutions necessitating administrative approaches. In recognising existing limitations this paper advocates the development of a hybrid approach towards zombie company elimination, using market based exit approaches while recognising that administrative approaches are needed to provide social services and an enabling environment for these cases. Using a steel industry case study it considers how a greater role for creditors and independent administrators can aid in market based approaches, as well as improvements to judicial and court capacity to handle insolvency cases.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"264 - 286"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42121484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Punitive damages under the new Chinese Civil Code – a critical and comparative analysis","authors":"A. Janssen, Jia Wang","doi":"10.1080/10192557.2022.2033087","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033087","url":null,"abstract":"ABSTRACT Punitive damages have their roots in the common law system. Recently, punitive damages have been increasingly discussed also in non-common law jurisdictions. This Article scrutinizes whether it is viable for a jurisdiction with a civilian legal system to adopt punitive damages in the realm of tort law. It is argued that societal development has brought unprecedented challenges to tort law where merely compensatory damages can no longer provide sufficient remedies to victims. We conduct research mainly from the perspective of China, which has been very progressive in introducing punitive damages into various areas of private law in the past decades and recently codified it in its new Chinese Civil Code. The discussion of Chinese law is proceeded with a comparison with the German law, which is also a civilian legal system that used to have a great influence on the making of Chinese law. We find that the German private law put much emphasis on disgorgement damages, while the Chinese legislator put his trust in punitive damages. German disgorgement damages and Chinese punitive damages focus both on the avoidance of efficient breaches of ubiquitous individual legal rights, such as personality rights or intellectual property rights, but the Chinese legislator makes punitive damages also available in several other legal situations. We provide recommendations for the future implementation of the Chinese punitive damages law in order to maintain a balance between efficient protection for claimants and sanctions on wrongdoers.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"346 - 365"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46063150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The fairness and efficiency of the right of recourse between security providers: a comparative and economic analysis","authors":"Jia-zhi He","doi":"10.1080/10192557.2022.2033089","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033089","url":null,"abstract":"ABSTRACT The right of recourse, or the right of contribution, between third-party security providers for the same debt absent any relevant agreement, is widely recognized in most common law and civil law jurisdictions. So was it in China. However, since the promulgation of the Chinese Civil Code 2020, the right of recourse seems to have been abandoned. Given the great divide between such abandonment and the practices in most other jurisdictions, this article explores the justification for the right of recourse, primarily from both the perspective of fairness and that of efficiency. Fairness concerns, particularly in the sense of distributive justice, are frequently referred to when justifying the right of recourse. But there are some drawbacks in a typical fairness analysis. Not only is the so-called ‘fairness’ often confused with other concerns, but also is such analysis inherently too vague to produce rules. Nevertheless, an efficiency analysis could justify the right of recourse and help develop the most efficient share calculation rule. The justification discussed in this article will benefit the relevant discussions in the property law of almost every jurisdiction and might also contribute to the debate on the relationship between fairness and efficiency.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"384 - 401"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48131902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The enforcement of mandatory rules against illegal contracts","authors":"Bingwan Xiong, M. Durovic","doi":"10.1080/10192557.2022.2033085","DOIUrl":"https://doi.org/10.1080/10192557.2022.2033085","url":null,"abstract":"ABSTRACT Academic attention on the effects of mandatory rules on illegal contracts has so far been primarily directed at the categorization of illegalities and the identification of those types of illegal contracts that should or should not be invalidated in accordance with the significance of their illegality. When defending the validity of certain categories of illegal contracts, current legal scholarship usually takes it for granted that competent regulatory agencies could monitor such contracts and enforce violated rules effectively. Our empirical studies of the practical enforcement of mandatory rules against illegal lottery sales in China suggest, however, that such an assumption is largely illusory. We argue that it is institutionally efficient that the courts transmit the information of illegal transactions to competent regulatory agencies when dealing with civil law matters involving illegality. Institutional reforms or technological changes should be implemented so as to incentivize judges to routinely transmit such information.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"306 - 324"},"PeriodicalIF":0.5,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43355196","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"‘Sharp Ears to Hear a Thunderclap’? The rise of mediation in the international dispute prevention and settlement system of the belt and road initiative","authors":"Ignacio de la Rasilla","doi":"10.1080/10192557.2021.2013664","DOIUrl":"https://doi.org/10.1080/10192557.2021.2013664","url":null,"abstract":"ABSTRACT The Convention on International Settlement Agreements Resulting from Mediation is one of the newest contributing factors to a virtuous circle upholding the foreseeable rise of mediation in cross-border business and investment disputes. This article analyses how the on-going institutionalization of the international dispute prevention and settlement system of the Belt and Road Initiative (BRI) is both being informed by, and is further contributing to, the global rise of mediation at a time when the international adjudicative system is in turmoil. The BRI is bound to generate a large number of complex international disputes ranging from international trade to investment and commercial disputes. This, in turn, has spurred two notable developments: 1) Chinese and regional arbitral institutions, legal regimes and investment treaty networks are currently adapting to better cater for the growing demand for commercial and investment arbitration in the context of the BRI. 2) The China International Commercial Court, which innovatively integrates ‘litigation, arbitration and mediation’ in its new ‘one-stop’ diversified settlement system, and a series of legal and institutional initiatives, namely the new International Commercial Dispute Prevention and Settlement Organization, are, in turn, paving the way for a greater use of mediation in cross-border business and investment disputes in the context of the BRI. This article examines these developments in the light of China’s broader relationship with international adjudication and elaborates on a number of arguments to help rationalising why mediation is gaining ground in the on-going institutionalization of the International Dispute Prevention and Settlement System of the BRI.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"167 - 188"},"PeriodicalIF":0.5,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48224262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mediation in contemporary Chinese civil justice: a proceduralist diachronic perspective","authors":"M. Paleker","doi":"10.1080/10192557.2021.2013667","DOIUrl":"https://doi.org/10.1080/10192557.2021.2013667","url":null,"abstract":"cross, even more than four decades after the onset of Reform and Opening. What will be the result of the Party’s conservative turn on human rights and the rule of law? As Fu Hualing points out, some activists may be radicalized as they witness intensifying state repression. For those lawyers, intensifying repression must be met with a more overtly political response, including increasingly public and overt efforts to call attention to rights abuses, and to link those abuses to the very structure and nature of the Party-state itself. Eva Pils makes a similar point in her chapter on human rights and the political system, arguing that many activists are shedding their incrementalist approach in favour of a more overtly political stance, one that does not shy away from direct criticism of the Party-state. For other activists, the response to increasing authoritarianism may not be radicalization, but rather alienation and disengagement. The past several years have seen a growing number of activists from China – and now from Hong Kong – choosing exit over voice, and seeking to build new lives in the United States, Europe, and elsewhere. The Party may well see such alienation as in line with its own interests. But it is also possible that the Party’s increasing rigidity, and the cynicism it feeds, could in fact erode public support for the regime, thus undermining rather than enhancing its long-term prospects for survival. How does this story end? No doubt, the struggle for human rights in China is a long-term one, and activists have largely accommodated themselves to the reality that they must take the long view. There are few if any signals that the regime will shift its hard-line approach anytime soon, and few potential external shocks – save for a severe economic crisis, or a messy conflict over Taiwan or the South China Sea – that could force the Party’s hand. Still, it would be a mistake to underestimate the ability of Chinese activists and lawyers to not only survive these latest challenges but perhaps even to come up with adaptive responses to state repression. It is possible that, in the years to come, many activists will develop innovative approaches that allow them to continue to press the Communist Party leadership to better respect the rights of its own citizens. After all, as this volume ably documents, Chinese rights activists have already accomplished more than many outside observers would have thought possible. As the next chapter in the struggle for human rights in China is written, these same activists, perhaps joined by growing numbers of a disillusioned public, will play a leading role.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"215 - 219"},"PeriodicalIF":0.5,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46999620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The rise of China and international law: taking Chinese exceptionalism seriously","authors":"Lin Zhang","doi":"10.1080/10192557.2021.2013665","DOIUrl":"https://doi.org/10.1080/10192557.2021.2013665","url":null,"abstract":"As Nobel Prize Laureate Douglass C North defines, ‘institutions are the rules of the game in a society or, more formally, are the humanly devised constraints that shape human interaction’. In light of this definition, it is evident that international law is a type of institution that coordinates and regulates the actions of the members, mainly those of sovereign states. Since the implementation of the Reform and Opening-up Policy in China in the late 1970s, the economic rise of China has been steadily and irreversibly realized under the complex and dynamically variable framework of international law. Currently, Western countries, especially the US, argue that China has ingeniously and unfairly taken advantage of the multilateral structures created by international law to accomplish its economic rise and reinforce its military capabilities. Against this background, Cai Congyan, a prominent Chinese international lawyer from the School of Law at Xiamen University, has contributed the timely and significant book ‘The Rise of China and International Law: Taking Chinese Exceptionalism Seriously’ with the academic mission to explore the answers to the following two important questions: (1) What is the relevance of international law to the rise of China? (2) What will China bring to international law as a rising great power? Chapter 2 depicts the profile of international law in tandem with the rise of China, by making a comparison with the previous system of international law, which favoured the Western great powers, including the leading European countries and the USA. Firstly, it demonstrates that international law was manipulated by Western great powers as a tool to justify their hegemony prior to the end of the Second World War. This is illustrated by the various unequal treaties signed between Western great powers and the Qing Dynasty during the First and Second Opium Wars. Following on from that historical perspective, it further asserts that, since the 1950s, international law has converged to the justice-oriented model that pursues a level playground for all participants in the international community. The integration of China into the international community has taken place amid the rise of a justice-oriented international law, which has in turn substantially promoted and benefited the rise of China. From my own viewpoint, Chapter 2 fulfils the task of sketching out the positive role of international law in the rise of China. Chapter 3 elaborates on the fundamental reversal of China’s national strategy which occurred in the late 1970s – abandoning the prevalent practice of Class Struggle and implementing the Reform and Opening-up Policy, which was promoted by Deng Xiaoping and his senior allies at that time. Chapter 3 illustrates that underlying the Reform and Openingup Policy was the determination of China’s political entrepreneurs that China should seek to integrate itself into a world that had been, to a large extent, under the rule of a just","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"209 - 211"},"PeriodicalIF":0.5,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43880529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Flexible institutionalization: a critical examination of the Chinese perspectives on dispute settlement for the Belt and Road","authors":"Jiangyu Wang","doi":"10.1080/10192557.2021.2013659","DOIUrl":"https://doi.org/10.1080/10192557.2021.2013659","url":null,"abstract":"ABSTRACT This paper critically introduces a few Chinese perspectives on dispute settlement for the Belt and Road Initiative (BRI) as presented in the articles included in this special issue. It starts with proposing the theory of ‘flexible institutionalisation’ as an analytical framework to capture the nature and intention behind China’s effort in developing BRI dispute resolution mechanism, followed by an examination of the legal characteristics of – and the legal changes facing – dispute settlement in the BRI, which has not been thoroughly addressed and analysed in the existing literature. It then offers an overview of the Chinese effort to establish a China-led dispute settlement system for the BRI. With this background, the paper presents the main argument and perspective in each article in this special issue. It concludes with reflections on the shortcomings of the special issue to the literature on BRI dispute settlement, as well as, the concerns China has to take into consideration in its ambition to construct China-led mechanisms for dispute settlement for the Belt and Road.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"29 1","pages":"70 - 85"},"PeriodicalIF":0.5,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43012048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}