Law In China Research Articles

Book Review of Isaac B. Kardon, China's Law of the Sea: The New Rules of Maritime Order

Book Review of Isaac B. Kardon, China's Law of the Sea: The New Rules of Maritime Order

Study on the Regulatory Management System for Idle Registered Trademarks

There are a large number of unused trademarks in the huge volume of registered trademarks in China, which wastes trademark resources, administrative trademark examination resources and judicial resources, disturbs the normal trademark order and market order. At present, China's law on the disposal of unused registered trademarks can only be based on the "If the trademark owner does not use the registered trademark for three years, the third party has the right to apply for its cancellation" system to make the unused trademark rights to the elimination of the new round of reform of the trademark law, although the new provisions to explain the use of trademarks, but a single provision cannot give full play to the effect of the supervision of unused registered trademarks. The regulation and supervision of unused trademarks should be based on the establishment of a standardized management system for unused trademarks at the macro level, which includes prevention, identification and relief, and at the micro level, unused trademarks with different causes should be classified into different categories and phases to be discussed and dealt with.

Corporate governance effects of state asset protection: A perspective on real earnings management

State-owned enterprises (SOEs) play critical roles in China's economy. This paper employs difference-in-differences method to explore the corporate governance effect of state asset protection based on China's Law on State-owned Assets of Enterprises. The study finds that state asset protection reduces the real earnings management of SOEs by increasing their corporate governance level. This policy effect occurs mostly in firms with non-Big4 auditing, lower analyst following and weaker internal control quality. This paper enriches research in law and finance, expands the literature on property rights theory, and provides empirical evidence for governments to complete policies to clarify ownership in the future.

Analysis of the Rules of “Necessary Measures” in Internet Service Provider’s Tort Liability

Due to the rapid development of the Internet, a large number of infringing acts occur frequently on online platforms. The traditional "necessary measures" in the form of "positioning and removal" can no longer meet the large-scale and repeated infringement of the network world today. And China's law for the "necessary measures" provisions is limited, but its extension in judicial practice and the trend of expansion for the rule has generated more controversy. This paper adopts the literature case analysis method, comparative study method and induction method to study and analyze the rule of "necessary measures" in the tort liability of network service providers. Considering that the rule originally originated from the United States of America's safe harbor principle, it is reasonable to draw on extraterritorial experience in the application. However, the improvement of the rule of necessary measures should still be combined with the characteristics of the local industry. In China, the necessary measures should be divided into types and defined in terms of form and content, which can also be judiciously determined according to the relevant definition criteria of the proportionality principle. At the same time, under general circumstances, the theoretical and judicial circles should adhere to the separation of "forwarding notice" and "necessary measures". According to the characteristics of the platform itself and the specificity of the type of services provided, the forwarding notice should be exceptionally considered as one of the necessary measures.

Comprehensive Evaluation on China's Law on Water Pollution Prevention and Control

Comprehensive Evaluation on China's Law on Water Pollution Prevention and Control

Research on the Concept, Attribute and Systematization Construction of the Inner-Party Laws and Regulations

The inner-Party laws and regulations system is an important part of the system of socialist rule of law with Chinese characteristics. Realizing the rule of law in China, it is necessary to adhere to the rule of law construction of the CPC itself. Focusing on the lively practice of the construction of the inner-Party laws and regulations, this paper focuses on the dimensions of the standardization and conciseness of the concept of the inner-Party laws and regulations, the debate and clarity of internal attributes, the construction of institutional systematization, and the cohesion and coordination of the inner-Party laws and regulations and national laws. In-depth grasp of the concept and internal attributes of the inner-Party laws and regulations, through the effective realization of the cohesion and coordination of the inner-Party laws and regulations and national laws, continue to promote the system construction of the inner-Party laws and regulations. It can provide useful enlightenment for strengthening the construction of laws and regulations within the Communist Party of China in the new era, and also provide reference for the legalization of governance of the ruling parties in other countries in the world.

A Study of China's Air Pollution Prevention and Control Policy Framework from a Policy Instrument Perspective

Environmental pollution caused by rapid economic development like that seen in China over the past twenty years poses various threats to human health. People have started to place much more of an emphasis on environmental security, working to find a balance between sustainability and economic growth. In recent years, air pollution has emerged as a highly discussed topic of social and environmental relevance in China, due in part to persistent smog that affects everyday life and causes serious harm to human health. Although air pollution is normally associated with human activity, is can be caused by natural processes such as eruptions and forest fires, but is always characterized by the release of certain substances into the atmosphere which, when present in certain concentrations or for given durations, can harm human health, daily life, productivity, and other aspects. In humans, it mainly affects the respiratory system, notably the lungs, as well as the immune system. A series of studies both in China and overseas have shown, in certain cases, even low concentrations of air pollution can pose a great threat to human health. In this study, we conducted an analysis of air quality policies, focusing on the 2018 revision of the People's Republic of China's Law on the Prevention and Control of Air Pollution (LPCAP). We utilized the content analysis method and Strauss and Corbin's grounded theory to construct a policy framework, demarcate analysis units, code and classify policy texts, determine descriptive statistics, and analyze dimensional interactions. We used two dimensions (basic policy instruments classified as demand-, supply-, and environment-side; and air carrying capacity) to quantify and analyze the LPCAP, which enabled us to analyze the deficiencies and conflicts within policy instruments. The results show a higher utilization frequency of environment-side policy instruments, particularly regulation management and strategic measures. This reflects efforts by the government to create a favorable environment for improving air quality. Additionally, supply-side policy instruments are used far less frequently than environment-side policy instruments. Air quality legal policies and pollution control measures mainly consist of environment-side policy instruments; ecological thinking and air quality policies that are based mainly on supply-side and environment-side policy instruments; and social coordination policies that mainly use environment-side policy instruments. Based on the results of this study, we recommend an increase in the number of supply- and demand-side policy instruments, particularly the latter which includes promoting ecological thinking amongst citizens, to optimize and improve air pollution prevention and control policies.

The Corporate Bankruptcy Substitute in China

Fair distribution in judgment execution generally served as the de facto bankruptcy substitute from the 1980s to 2015, a time when the China Supreme People's Court partially abolished this regime in an effort to nudge more commercial judgment executions into formal bankruptcy procedures. As will be reported later in this article, in view of the insurmountable barriers to commence corporate bankruptcy procedures, even after 2015, courts still use fair distribution to pragmatically solve equal treatment between competing creditors. However, there is little research on fair distribution in judgement execution as a bankruptcy substitute in China, although there has been significant academic study of China's commercial judgment execution system per se, notably by Professors Donald Clarke, Randall Peerenboom, and He Xin. To fill this gap, this article generally asks one simple question: Is fair distribution in judgment executions effective in filling the gap left by the virtual absence of bankruptcy law in China? Under this general question, there are many specific questions that need to be answered. For example, how often is fair distribution used in the event of the bankruptcy of execution debtors? Are execution creditors treated well under the fair distribution scheme? And if not, what factors hamper the application of fair distribution? Is it the lack of bankruptcy filings, as argued by many court officials in China, the cause of the meagre use of the corporate bankruptcy law?

Analysis on the Sustainable Development Mode of Law Undergraduate Education in China in the New Era

At present, China has entered a new era of development, which is reported by the 19th National Congress of the Communist Party of China based on the overall judgment of the development stage of socialism with Chinese characteristics. In the new era, China's legal education should not only follow traditional good practices and learn from experiences, but also be prepared to welcome new challenges, thus seeking a new development in line with China's national conditions and reflecting the characteristics of the new era. In the new era, law undergraduate education in China should adopt a problem-oriented, major contradictions-focused and comprehensive and all-round development-targeted sustainable development mode. Sustainable development direction of law education has been prescribed by China's relevant laws and regulations and documents, but the training objectives of most colleges and universities are mixed and diverse, most of which are not implemented, the relationship between the training objectives and the course of law undergraduate as well as the guidance effect of the objectives on the courses is not clearly defined. Correct educational concept is essential to the development of law undergraduate education. As the concept of sustainable development has become popular all over the world, which should also be adhered to by China's law undergraduate education because the new era requires the law undergraduate education in China to be forward-looking, sustainable and coordinated. More concretely, the sustainable development should be all-round, systematic and comprehensive, and should be mainly reflected in the multi-level development objectives, diversified development models and innovative courses. Follow this development model, which can really improve the quality and level of China's law undergraduate education in the future.

Multiple Modernities: An Alternative to Western Economists? Recommendations for China's Private Law

This article criticizes the recent World Bank report, “China 2030” which formulates a new development strategy for China to rebalance the role of the government and the market as well as the private sector and society. The report deals explicitly with the role that private law should play as a means of economic modernization. The main thesis of this article is that the World Bank report develops a rather one-sided vision of the future of China's private law based on the prejudice that there is only one way to of modernizing Chinese society. In contrast, a sociological view suggests that China's law should develop through “multiple modernities”. There are two dimensions in which this multiplicity of paths to modernity is realized. One is functional: while the World Bank recommends a unifunctional economic modernization, systems theory would follow a multifunctional approach. The other dimension is historical and cultural: while the World Bank perceives a universal transcultural path to modernity, sociological thinking would take into account the varieties of regional cultures in their specific paths to modernity and would stress that specific Chinese characteristics have a strong influence in this process. The article elaborates its thesis on the following issues which are discussed in China's private law (1) the multidimensional role of private law, (2) the horizontal effect of human rights and (3) the role of the political party.

China's Law Development in the Climate Change Era

China as the largest emitter of GHGs in the world is confronting energy shortage air pollution and political pressure from international society, and its economy is still on the fast track. In order to cope with these issues, China has made a lot of laws and policies as its positive response to climate change. These laws and policies include traditional command and control approach and market-based approaches such as cap and trade mechanism and carbon tax. In comparison, market-based approaches are more effective in climate change era. Among them, carbon tax may be more suitable than cap and trade approach because of its many advantages and China’s current circumstances. From the perspective of engaging in international negotiations in this arena, China shall insist the principle of historical responsibility and principle of common but differentiated responsibility in sharing international obligation on climate change, though its position is inviting some severe criticisms from EU and its member states.

Regulation of waste dumping at sea: The Chinese practice

It was common along China's coastal region to throw wastes, including domestic and industrial, to the sea at random and without care. This has caused severe environmental problems, not only harming the marine environment, but also damaging the residential habitats of the coastal region itself. Unfortunately, before 1982 offshore wastes dumping was not regulated in China. The actual regulations governing such dumping in China formally began in 1982 when the basic law on marine environmental protection, i.e., the Marine Environmental Protection Law came into being. The significance of the regulation of wastes dumping lies in the fact that it consists of an indispensable part of the comprehensive marine environmental protection system in China. What is more significant is that under the current circumstance that China has been building a harmonious society for its people, the reach of the harmony between Nature and human beings is critical. Thus effective control of wastes dumping at sea is a necessary component in the efforts towards that reach. Since China is the biggest country and has longest mainland coastal line in East Asia, its laws and practice in this regard concerns with the marine environmental protection of the whole East Asian seas. This paper will address the wastes dumping issue in a legal perspective, including analyzing and assessing the relevant laws and regulations, their implementation and enforcement in China. In addition, it will compare the Chinese regulations with relevant international laws to see whether the Chinese law and its implementation are in line with them. For the purpose of the better explanation of China's law and practice, some relevant cases regarding wastes dumping will be addressed.

Establishing a Workable Autonomy in Tibet

This article recommends a change in China's policy toward Tibet to better conform to national commitments and international obligations. Since the People's Liberation Army marched into Tibet in the 1950s China has generally imposed its will on the Tibetan people. The 1951 "17-Point Agreement on Measures for the Peaceful Liberation of Tibet" reflected the view that China was liberating Tibetan territory from imperialist forces. From the Tibetan perspective such "liberation" was imposed and promises of local self-rule were not kept. The emerging communist and totalitarian state that followed the 1949 Chinese revolution proved incapable of allowing genuine Tibetan self-rule. A harsh attitude of domination ensued. The present instrument of Chinese rule is China's national minority policy provided in Article 4 of the Chinese Constitution and China's Law on Regional National Autonomy (LRNA). Though this policy promises local self-rule, the habits of intervention both formally in the political system and in the mechanisms of Communist Party oversight leave Tibetans with very little of the promised legislative and administrative autonomy. Assessing this policy against the backdrop of China's long historical relationship with Tibet and the requirements of international law, this article concludes that China's national minority policy fails to meet its obligations to the Tibetan people. Taking account of standards articulated in the new UN Declaration on the Rights of Indigenous Peoples, this article recommends a change of course to establish a more genuine autonomy under Article 31 of the Chinese Constitution relating to the establishment of special administrative regions.

Organizational Formations of Organized Crime in China: perspectives from the state, markets, and networks

Chinese lawmakers and law-enforcers have viewed the hierarchical structure as the defining feature of organized criminal organizations. Such a flawed framework has hampered China's recent efforts to fight organized crime. Based upon organization theory, this paper argues that by adapting to the changing institutional environment, Chinese criminal forces have chosen a variety of organizational structures ranging from hierarchy to the market and the network. The recently uncovered cases point out that networks have become a more popular organizational form than the traditional hierarchies (such as secret societies) and contractual relationships in illicit markets. By offering a classification of organizational formations of organized crime in today's China, the author suggests network analysis as a new tool to help China's law enforcement effectively respond to surging organized crime.

Weiquan (Rights Protection) Lawyering in an Authoritarian State: Building a Culture of Public-Interest Lawyering

A group of private lawyers known as rights-protection (weiquan) lawyers are emerging in China showing keen interest in solving the cases affecting the public interest. These different types of weiquan lawyers helping public to shape the development of civil society.

Arrest as punishment

In analyzing the law concerning arrest, this article demonstrates that even though China's law of criminal procedure prescribes strict requirements, these legal prescriptions are not strictly upheld in practice. The abuse of arrests is common. Most notably, the use of arrest as punishment is the primary form of abuse inflicted by law enforcement. Reasons for such abuse include misunderstandings of the law, the prevalence of crime-control oriented values, and flaws in checks-and-balances mechanisms. Reduction of such abuses will entail a proper understanding of the law, the achievement of gradual ideological change, and the step-by-step reestablishment of checks and balances.

Legal Reform in China: Institutions, Culture, and Selective Adaptation

China's law reform program began in late 1978, at the Third Plenum of the Eleventh Central Committee of the Communist Party of China (Zhongguo gongchandang). The plenum reflected a tentative policy consensus about the need to reform the state-planned economy and build a legal system that would support economic growth and restore for the regime the monopoly on legitimate coercion that had been lost during the Cultural Revolution. Initial efforts included legislative drafting in areas of crime and public security, contracts, taxation, and foreign business. Law schools that had been closed since the late 1950s were reopened, and legal specialists who had been disgraced during the Cultural Revolution were invited to resume their academic and professional activities. While it is tempting to view the past 25 years as an uninterrupted process of policy consensus on legal and economic reform, in fact the post-Mao period was marked by contention and disagreement. The political crisis surrounding the Tiananmen massacre of 1989 raised the prospect that both legal and economic reform would be halted, although Deng Xiaoping's courageous Southern Tour (nanxun) in 1992 helped secure the momentum for stronger links between legal and economic reform (Wong and Zheng 2001). The subsequent acceleration

Foreign Business and Consumer Rights: A Survey of Consumer Protection Law in China

FOREIGN BUSINESS AND CONSUMER RIGHTS: A SURVEY OF CONSUMER PROTECTION LAW IN CHINA Mark Williams* INTRODUCTION The accepted wisdom of the economic titans of the west is that China is a land of opportunity. 1 Untold millions of consum- ers are apparently eagerly waiting for the benefits of Western consumer-oriented capitalism. The oft-repeated nostrum appears to be that any self-respecting multi-national cannot afford to ig- nore the huge market 2 and the profit bonanza that surely will be the prize of the bold entrepreneur who commits early to the Chi- nese market. Does this view represent reality or do those who have committed huge sums to unprofitable joint venture enter- prises need to perpetuate such a myth to reassure anxious share- holders? The answer is yet to be determined. However, the imminent entry of China into the World Trade Organization (WTO) will inevitably lead to increased opening of the domestic market to imports and goods and services produced locally by foreign enterprises and so the potential opportunities for foreign firms' interaction with the Chinese market will un- doubtedly increase. The reduction of tariffs, most favored nation status and national treatment of foreign goods as promised by the trade agreements already signed with the United States of * Assistant Professor of Law, Hong Kong Polytechnic University 1. A recent survey of the CEO's/CFO's of 1000 global companies found that China was the second most favoured recipient of foreign direct investment after the United States of America. The reasons for this confidence in the Chinese market place resulted from three factors - size of the potential market and a growing mid- dle class , entry by China into the World Trade Organization and normalization of China's policy behaviour . See A. T. Kearney, Inc., FDI Confidence Index (Feb., 2001), at http://www.atkearney.com. 2. China has a population of over 1.2 billion people. See 2000 CHINA STAT. Y.B. (China Statistics Press, Beijing).

China's law on maternal and infant health

China's law on maternal and infant health

The Rise of Early Modern Science

The author has shown great courage in undertaking an endeavor thathas daunted historians of science, intellectual historians, Islamicists, andSinologists. Huff utilizes excellent sources and makes insightful hypothesesin this multidisciplinary work. If the book is not perfect, the failure issmall compared to what he has achieved. Building on this work, otherscholars will be able to sharpen the on-going debate and propose boldconclusions for years to come.The Rise of Early Modern Science concentrates on why science "tookoff' in the West but not in China or the Islamic world, where it had muchlonger histories. By "takeoff," Huff means the explosion of scientific discoverythat flowered in the West, especially during the early seventeenthcentury. His basic premise is succinct: "Modem science depends on thebelief that the natural world is a rational and ordered world" and that"man is a rational creature who is able to understand and accuratelydescribe the universe." Claiming that such Greek tenets never occurred inChina and noting that the Arabs passed them on to Europe, he enwnerateshow they took hold in the West and facilitated the modem world.Huff compares the legal systems of the three cultures as institutionalizationsof their social, political, and intellectual experiences. While comparisonsof their legal systems produce interesting results, contrasting theirthought processes, educational systems, and practices of science couldhave shed more light on the differences in their utilization of scientificmethodologies. His recourse co legal systems for comparisons in scienceis not successful, for law parallels scientific methodology in that bothemploy rigor, empiricism, and deduction. But induction, essential for science,was used in law mainly for purposes of legislation. His comparisonof Islamic law with the West's fails because the former includes everyaspect of life, whereas the latter is more limited to criminal, civil, and corporateaspects. China's law, on the other hand, is concerned with the socialorder.Huff notes that China concentrated more on the organization ofhuman society than on the natural environment. Emperors and their minionsopposed searching for "truths" lest the established order be troubled.China did not codify or institutionalize its laws in ways comparable toIslam and the West. Given this history, China should be effectively out of ...