UCLA Pacific Basin law journal最新文献

{"title":"\"One-Stop\" Dispute Resolution on the Belt and Road: Toward an International Commercial Court With Chinese Characteristics","authors":"Z. Mollengarden","doi":"10.5070/p8361042636","DOIUrl":"https://doi.org/10.5070/p8361042636","url":null,"abstract":"Author(s): Mollengarden, Zachary | Abstract: On July 1, 2018, China’s Supreme People’s Court published the “Provisions on Several Issues regarding the Establishment of International Commercial Courts.” The Provisions followed on the heels of a January announcement from the Central Leading Group for Comprehensively Deepening Reforms alluding to plans to establish a dispute settlement mechanism dedicated to China’s Belt and Road Initiative. The Provisions confirmed that what the press had swiftly branded the “Belt and Road Court” (BRC) will comprise three international commercial courts. Regardless of analysts’ discipline or affiliation, the response to the initial proposal, and now to the framework laid out in the Provisions, has been predictably binary, reflecting a longstanding division in interpretations of China’s commercial dispute resolution policies.One branch, call it the sociological school, explains China’s policies with reference to the country’s history and culture. It contends that a direct line may be drawn from the Chinese people’s traditional aversion to litigation to their government’s preference for informal and private mechanisms for dispute resolution. With reference to the BRC, the causal narrative this school presents is one of continuity, contending that to understand the BRC, the basic explanatory trajectory must proceed from China outward to the international arena. An alternative branch, call it the political-economy school, argues that China’s policies toward international commercial dispute resolution respond to the same goals and imperatives as any other state. China’s policies are viewed as a self-interested response to factors such as commercial flows, security considerations, and development goals. Insofar as such matters are subject to constant flux, China’s dispute resolution policies are understood to be commensurately fluid. Here, the basic explanatory trajectory proceeds from the international arena inward into China.As with all binaries, there is a middle way—an approach that interprets China’s commercial dispute resolution policies generally, and the newly established BRC in particular, as a product of continuity as well as change, influenced as much by internal dynamics as external imperatives. This Article adopts this middle way in order to identify and assess the principal tensions that have confronted, and will continue to challenge, the designers of what will amount to an international commercial court with Chinese characteristics.","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70773592","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 Currency Exchanger: Taiwanese Public Interest Lawyers in the 21st Century","authors":"Chingfang Hsu","doi":"10.5070/p8361042635","DOIUrl":"https://doi.org/10.5070/p8361042635","url":null,"abstract":"Author(s): Hsu, Ching-Fang | Abstract: The rights discourse has become a common and powerful currency in the public sphere. Public interest lawyers, who reason in law and facilitate the movements of legal rights, are the currency exchanger that converts power and political momentum, symbolic and formal, between different public entities. This paper adopts a relational framework to understand the presence of public interest lawyers in Taiwan and the complexity of their involvement in promoting, defending, or mobilizing for public good. I systematically analyze the bidirectional relationships that lawyers develop with government (both the administration and the parliament), political party, civil society (including NGOs and the general public), and the court. By examining two types of operation, lawyers in organizations and lawyers in mobilizations, I use the development offour NGOs and four social movements in Taiwan—gender, environment, labor, and China watch—to argue that the expertise of exchange leads to the prevalent role that public interest lawyers are able to play in the twenty-first century.","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70773481","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":"Does China Have Alimony?: A Study of China's Current Post-Divorce Financial Relief System","authors":"Jason J. Lee","doi":"10.5070/p8362043775","DOIUrl":"https://doi.org/10.5070/p8362043775","url":null,"abstract":"Author(s): Lee, Jason J. | Abstract: Under China’s current Marriage Law amended and enacted in 2001, its post–divorce financial relief system comprises three disparate component parts. The principal part and the one analogous to the American concept of “alimony” or “spousal support” is the “post–divorce financial assistance system,” as authorized under Article 42. The other two parts, “economic compensation at divorce” and “divorce damage claims system,” as authorized under Article 40 and Article 46, respectively, complement the principal part. After a brief historical overview of China’s alimony legislations, this Article offers a doctrinal analysis of the two more straightforward components as embodied by Article 40 and Article 46. Then it delves into an in-depth textual criticism of Article 42, and its concomitant 1984 SPC’s Judicial Opinions and Article 27 of the 2001 SPC’s Judicial Interpretations, the three constituents of the entire corpus of China’s “alimony laws.” Through the lenses of California’s divorce laws, focusing on the current judicial interpretations and practices, the author candidly critiques the Chinese sui generis body of “alimony laws.” The author arrives at such significant findings: (1) The statutes and judicial interpretations are too vague to be of much practical guidance when judges decide issues such as the eligibility prerequisites for invoking the law and the criteria for rendering financial assistance; (2) The law is fraught with loopholes; (3) The law is obsolete and does not suit the current socioeconomic reality of China. The author observes that such vague, defective and obsolete laws leave too many key issues to the judges’ vagaries. The author makes concrete recommendations and suggests specific remedies to close the loopholes and fill the gaps in the current post–divorce financial assistance system. The author advances the theory that the absence of an elaborate, systematic set of alimony laws and procedural rules is the direct result of the Party-state’s overemphasis on mediation and a diehard feature of the rule of man, to the detriment of the rule of law. The author describes this trait as the corollary of the triumph of Confucianism over Legalism as manifested in contemporary China. The author marks out the stumbling blocks to reforming China’s current alimony laws and cautions that the eventual reification of the proposed rules and legal remedies will hinge upon the outcome of the rivalry between the synthesists’ views of rule of law and the thin theories of rule of law.","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70773890","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":"Chinese Crusaders' Lawfare Against Chinese Exclusion Laws","authors":"Li Chen","doi":"10.5070/p8362043776","DOIUrl":"https://doi.org/10.5070/p8362043776","url":null,"abstract":"Author(s): Chen, Li | Abstract: This article focuses on two of the earliest Chinese law students in the United States who deployed their legal knowledge and advocacy skills to fight against the Chinese Exclusion Act and its related laws in the early 1900s. Ho Yow, the fourth Chinese national to ever attend law school in the United States, performed this courageous task as Chinese consul to the United States. His fellow countryman Yeung Fong joined in this battle by conducting a full-fledged systematic study of the racist laws, becoming the first Chinese national who wrote a master’s thesis on this controversial topic.","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70773975","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":"Smoke 'Em If You Got 'Em: Discussing the WTO Dispute Settlement Panel's Decision to Uphold Plain Packaging in Australia and Its Impact on the Future","authors":"Lucas G. Kelly","doi":"10.2139/SSRN.3115849","DOIUrl":"https://doi.org/10.2139/SSRN.3115849","url":null,"abstract":"This Article discusses the landmark decision by the WTO Dispute Resolution Panel that the Australian Tobacco Plain Packaging Act 2011 (“TPPA”) is consistent with its obligations to the TBT Agreement, the TRIPS Agreement, and the GATT. It argues that Indonesia’s claim that the TPPA is discriminatory and contrary to its obligation of national treatment is unfounded. Further, it contends that the decision could lead to more products being subjected to plain packaging regulations in the future. Tobacco is, however, unique because of the great health risk involved, and plain packaging of other products to this extent is unlikely. The Article presents evidence of the health risks involved with tobacco use, and discusses why the TPPA falls under an exception to its obligations to the WTO Agreements cited. To conclude, the Article investigates several different products and explains why it is unlikely that the products will be subjected to stringent packaging regulations in the future.","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"106 2 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83672768","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":"Power Harassment: The Tort of Workplace Bullying in Japan","authors":"Philip R. Hsiao","doi":"10.2139/SSRN.2406976","DOIUrl":"https://doi.org/10.2139/SSRN.2406976","url":null,"abstract":"As many American lawyers and advocates work toward reducing workplace bullying, they have come to rely on comparative legal perspectives to explain the shortcomings of American law on this critical economic and human rights issue. Though legal scholars have focused on Western European frameworks for anti-bullying legislation and so-called \"moral harassment,\" there is a gap in the legal literature around the development of this idea in the Japanese context. This paper seeks to fill that gap by introducing English-language audiences to the developing Japanese workplace tort of \"power harassment,\" through the comparative lens of American law.","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"45 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73080301","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":"National Security Law in Hong Kong: Quo Vadis - A Study of Article 23 of the Basic Law of Hong Kong","authors":"H. Fu, R. Cullen","doi":"10.2139/SSRN.2145144","DOIUrl":"https://doi.org/10.2139/SSRN.2145144","url":null,"abstract":"This article reviews the full nature of the obligations to enact National Security Law in the Hong Kong Special Administrative Region (HKSAR) under Article 23 of the Basic Law of the HKSAR.","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"16 1","pages":"185-230"},"PeriodicalIF":0.0,"publicationDate":"2012-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82925473","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 Political Economy of Rule of Law in Middle-Income Countries: A Comparison of Eastern Europe and China","authors":"R. Peerenboom, R. Peerenboom","doi":"10.2139/SSRN.1673581","DOIUrl":"https://doi.org/10.2139/SSRN.1673581","url":null,"abstract":"There has been an explosion of interest in rule of law in recent decades and growing interest in middle-income countries (MICs) among economists and development specialists, including the World Bank. However, there has been relatively less work done on rule of law in MICs and the special issues MICs face in developing a functional legal system. This is preliminary attempt to understand some of issues facing MICs as they seek to establish rule of law. To keep the scope manageable given the wide diversity of MICs, I compare Eastern European MICs and China. Part I provides a brief introduction to MICs and general issues they face. Part II provides a broad empirical comparison of Eastern European countries, the Baltics and former soviet republics, and China. Parts III to V discuss rule of law issues in Eastern Europe, with comparisons to China, focusing on lustration issues, implementation gaps, and the very different performance of constitutional and regular courts. Part VI turns to recent debates about the role of courts in China, and the controversial crackdown on social and political cause lawyering. Part VII concludes.","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"51 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2010-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85714863","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":"Prisonization or Socialization? Social Factors Associated with Chinese Administrative Offenses","authors":"Li Enshen","doi":"10.5070/P8272022220","DOIUrl":"https://doi.org/10.5070/P8272022220","url":null,"abstract":"Since its founding the People's Republic of China has used various forms of administrative detention to rehabilitate administrative offenders, in particular drug users and prostitutes. A number of studies have focused on the undesirability of administrative detention in terms of its questionable legality and rationality. Very few studies, however, focus on its poor effectiveness in preventing re-offending and its contribution to high recidivism rates in China for certain offenses. This article first examines the true nature of the policy of administrative detention by looking at the policy's rationales of punishment, retribution and deterrence. In contrast to administrative detention, education, rehabilitation and correction based on the utilization of social capital have successfully contributed to a reduction in recidivism for administrative offenses. By reviewing the practice of the Chinese community correction program, this article concludes that compared to administrative detention, community correctional schemes that are filled with positive social capital may serve as the ideal substitute to rehabilitate Chinese administrative offenders.","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"10 1","pages":"213-260"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73131427","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":"Korea’S Newly Enacted Unified Bankruptcy Act: The Role of the New Act in Facilitating (or Discouraging) the Transfer of Corporate Control","authors":"Haksoo Ko","doi":"10.2139/SSRN.1937231","DOIUrl":"https://doi.org/10.2139/SSRN.1937231","url":null,"abstract":"Korea recently enacted the Unified Bankruptcy Act. It aims to streamline existing bankruptcy procedure by consolidating various statutes governing bankruptcy into a single statute. Prior to the current enactment, when a company was in distress, it could restructure itself and continue its operation through corporate reorganization or through composition and, during the reorganization procedure, the incumbent manager was often discharged. Under the new statute, a single type of rehabilitation proceeding is available for a distressed company and the incumbent manager is generally retained as the receiver. This article reviews the current bankruptcy regime in Korea and argues that this change has a risk of being used as an entrenchment device for incumbent managers. In a country where control transfer rarely takes place the transfer of corporate control would become even more difficult. Further, this article argues that in order to ameliorate this risk, it would be desirable to require a sales process once a distressed company is in corporate bankruptcy proceedings. (A revised version was published as 24 UCLA Pac. Basin L.J. 201 (2007).)","PeriodicalId":83387,"journal":{"name":"UCLA Pacific Basin law journal","volume":"70 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2007-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86249599","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}