Comparative Law Perspective Research Articles

민법 개정안에서 의사표시의 유효성

This article analyzes the main contents of the proposed amendments to the Civil Code suggested by the Civil Code Amendment Committee, which was launched on June 16, 2023, in relation to the validity of declarations of intent from a legislative policy and comparative law perspective. First, the proposed amendments maintain the current law for Articles 107, 108, and 110, except for minor modifications in wording. Next, the proposed amendment to Article 109 on mistakes explicitly includes mistakes regarding the juridical act's necessary basis (Grundlagenirrtum) and mistakes induced by the other party as grounds for avoidance. It also modifies the wording of the essential part requirement to clarify the subjective and objective causal relationships as its meaning. Furthermore, it exceptionally allows avoidance even when the declarant is grossly negligent, provided that the other party is also grossly negligent. These changes reflect both case law and comparative law. However, the proposed amendment does not accept the declarant's liability for damages in case of negligence and leaves the possibility of contract modification in case of mutual mistakes to doctrine and case law. Meanwhile, the newly introduced Article 110-2 recognizes a new ground for avoidance when the declarant makes a declaration of intent under undue interference in their decision-making due to a state of psychological dependence or a close relationship of trust. This rule attempts to introduce the common law doctrine of undue influence and protect the autonomy of intent in a manner equivalent to fraud and duress. The content and direction of the above-mentioned amendments appropriately reflect the current state of our doctrine and case law and align with recent legislative trends from a comparative law perspective.

The Impact of Online Opinion on Justice: Two Cases in Comparative Law Perspective

In the early stages of the judicial process, trials were characterized by a pursuit of independence and justice, with judges adhering strictly to legal statutes and delivering judgments that aligned with legal logic. However, as today's digital landscape evolves, Internet users engage with the judiciary in distinct ways; they communicate online, actively voice their opinions, and gradually cultivate a representative form of public opinion on the web. As the impact of online public sentiment on judicial administration grows stronger, it increasingly exhibits a tendency to exert dominance. While the independence of the judiciary remains unquestionable, certain explosive instances of online public opinion also highlight pressing societal issues that warrant attention and cannot be overlooked. Using two well-known cases as an entry point, we will compare how networked public opinion influences justice differently in Japan and China. This analysis will delve into the underlying jurisprudence while seeking solutions tailored to China's national context. The goal is to foster positive interaction between these two realms—leveraging the constructive influence of online public opinion on judicial processes—and ultimately enhance China's judiciary system.

Consumer Personal Information Protection from a Comparative Law Perspective

Consumer Personal Information Protection from a Comparative Law Perspective

Independent Directors' Opposition, Earnings Management and the Risk of Stock Price Crash

The purpose of this paper is to analyze the legal practice and theoretical basis of the implied secrecy clause in the United States, and to explore the domestic development of the implied secrecy obligation in our country. Based on this, this article uses the American case and law to establish the standard to judge whether our country's counterpart undertakes the implied confidentiality obligation. First of all, the first part of this article summarizes the existing legal framework of our country on the obligation of implied confidentiality and its challenges in judicial practice, and summarizes the views of the academic community on this issue. By combing the current situation of legislation, analyzing the problems in judicial practice, and studying the opinions of academic circles, this paper proposes that the implied obligation of confidentiality in the field of trade secrets should be affirmed clearly. Secondly, the second part of the comparative law perspective, a comparative analysis of the common law system and the civil law system on the implied provisions of the different theories, so as to provide theoretical support for our country to learn from the experience of the and the United States. Finally, the third part from the legislative basis, judicial practice and practical needs of the three dimensions, demonstrated the application of implied confidentiality obligations of the rationality and necessity, it further strengthens the importance of implied secrecy obligation in legal practice.

Exemption from Criminal Liability under Art. 78a of the Criminal Code from the Perspective of Comparative Law

Exemption from Criminal Liability under Art. 78a of the Criminal Code from the Perspective of Comparative Law

Breakthrough in the Relativity of Traditional Contract Subjects: The Case of the International Contract for the Carriage of Goods

The contract of carriage of goods is a typical agreement commonly encountered in both domestic and international trade. Relevant legislation pertaining to this matter can be found dispersed across civil codes, commercial codes, and specialized transport laws in various countries. According to the relativity of traditional contracts, the contracts are only binding on the contracting parties. However, with the development of the economy and the sophistication of the social division of labor, the behavior of goods transportation often involves the interests of third parties other than the contractual counterparts. Hence, the practice has required the breakthrough of the relativity of the contract of carriage of goods. From the views of the subjects, the groups of the shipper, the carrier, and the consignee have emerged. This paper studies the above three subjects, from the perspective of comparative law to recognize the legal phenomenon of the breakthrough in the relativity of the subject of the contract of carriage of goods.

The Figure of the Unknown within Sacco’s Theory

The article analyzes one aspect of Rodolfo Sacco’s complex and innovative theoretical itinerary as it evolved. While the author’s theoretical perspective is often remembered as the theory of the legal formant and of the mute origin of law within a comparatist perspective, it seems to me that another area of his work remains relevant and needs to be explored further, perhaps beyond the very methodological ways provided by the author. From the work on interpretation to the legal anthropology, the implicit copresence of mute and spoken represents one of the most interesting features of the theory, which appears capable of intercepting many contemporary problems of the evolutions of the law. The paper will move toward a different direction: with the aim to show how there are very different theoretical positions within the philosophy of law that can be approached from the perspective of comparative law in the formulation proposed by Rodolfo Sacco, around the central problem of the radical transformations of the concept of law. Thus, a problem is identified, at once epistemological and semiotic, that appears central to the configuration of legal thought in the age of globalization: the epistemological role of the unknown in the construction of knowledge, as a modular methodological problem and its implicit Vichian ancestry.

Protecting the integrity of e-books in the network environment: A comparative law perspective

Protecting the integrity of e-books in the network environment: A comparative law perspective

Third-Party and Bankruptcy Effects under Chinese Trust Law: Comparisons with English Trust Law

Abstract In English law, the trust's third-party and bankruptcy effects contribute significantly to its wide use in commercial transactions. In view of the trust's attractiveness in conducting commercial dealings, China has also introduced the trust model into its domestic legal system to enhance its financial infrastructure. However, given the extent to which Chinese law has been influenced by the Roman-Germanic tradition, China's replication of the trust's third-party and bankruptcy effects has encountered doctrinal obstacles. Drawing upon the experience of its Northeast Asian forerunners, China has established two mechanisms to achieve the third-party and bankruptcy effects: the regime of trust fund independence and the granting of the right of rescission to beneficiaries. These two mechanisms represent the adjustments made by Chinese legislators in the process of transplanting the trust model into the Chinese legal context. Adopting a comparative law perspective, this article examines these mechanisms in the Chinese law setting for two reasons: first, to explore the mechanisms’ constituent elements and their operation, as well as the roles of both mechanisms in the Chinese trust law system; and second, to furnish comparative law scholarship with broader insights into rule transplantation and reconciliation.

Legal transplants and legal translation: a case study of the borrowing of the U.S. limited liability partnership into the Polish legal system

ABSTRACT The phenomenon of legal transplants, which refers to the diffusion of law across legal systems, is widely discussed by comparatists. The present paper seeks to explore its links with legal translation, so far mainly observed from the comparative law perspective, focusing on the impact of legal transplants on translation practice. To achieve this goal, one specific case is discussed, namely the borrowing of the U.S. limited liability partnership into the Polish legal system. This particular case raises the question of whether the term spółka partnerska, designating this relatively new Polish structure, and the term ‘limited liability partnership’ may be used as natural (functional) equivalents. Answering it becomes more complex when one realises that an entity called ‘limited liability partnership’ was subsequently also introduced in the United Kingdom – yet in a fundamentally different form. To identify the implications that these legal transplants have for legal translators, the nature of the U.S., U.K. and Polish business structures is discussed, and their essential features are compared. The findings demonstrate that the dynamics involved in legal transplants are likely to produce terminological traps, which, in turn, suggests that translators should be aware of this phenomenon and take particular care when faced with it.

International Investment Disputes Resolution in the EAEU when Changing the Investor’s Personal Law

The paper identifies regulatory gaps in the Treaty on the Eurasian Economic Union in relation to the status of an investor when changing their personal law after making investments. There are also gaps in the procedural mechanism for organizing and conducting conciliation procedures in accordance with the above agreement on the initiative of an individual — the applicant whose legal interests were violated. Based on the results of a study carried out from the perspective of comparative law and a formal-dogmatic approach, the author proposes solutions to improve the international legal regulation of investment activities within the EAEU on the identified issues in order to create a favorable investment climate for attracting foreign investment to the Russian Federation from partner countries in the EAEU. The theoretical significance of the work lies in the formulation of the author’s definition of the concept of international legal innovations and the designation of their characteristics based on a doctrinal understanding of examples of UNCITRAL rule-making practice.

Presidential Neutrality and Position in the 2024 Presidential Election: A Constitutional Law and Comparative Law Perspective

In the event of the 2024 presidential election, the neutrality and position of the president play a key role in ensuring the continuity of democracy and justice. This article aims to investigate these issues from the perspective of constitutional law and comparative law. Through a normative juridical approach, this article explores the neutrality and position of the president in the 2024 general election from the perspective of constitutional law and comparative law. The data sources used come from primary and secondary sources. Based on the results of the analysis, it can be stated that the president as the people who have the right to vote and as the head of state who must prioritize neutrality towards the general election is prohibited from inviting others or the public to vote for one of the candidates. In addition, a legal comparison conducted with Malaysia, the Philippines, and South Korea found that the general elections conducted are almost the same as those conducted by Indonesia. Except Malaysia, because its form of government is a parliamentary constitutional monarchy. This means that executive power is held by the prime minister, who is the head of government and leads the cabinet. The Prime Minister is chosen from members of Parliament, who are members of the legislature elected by the people in general elections.

“The Case of Alibaba’s Skyrocketing Ticket.”--How to Define Relevant Market Identification in Internet Antitrust Law from a Comparative Law Perspective

This article would select the relevant market definition as a specific perspective as a research problem, and combined with the relevant provisions of the U.S. law. It takes the use of traditional comparative law in the concept of functionalism, in order to functional issues as a research method, to achieve a comparison between the two countries in the law under the provisions of the summary extracted from the different points. As a result, it could absorb and reference to the advantages of the laws of other countries in order to remedy for the filling of the shortcomings of China’s relevant legislation.

The Application of the Rule of Thumb in Finding Facts in Civil Proceedings from the Perspective of Comparative Law

The Application of the Rule of Thumb in Finding Facts in Civil Proceedings from the Perspective of Comparative Law

The Conflict and Coordination between Online Public Opinion and Judicial Practice from the Perspective of Comparative Law

The Conflict and Coordination between Online Public Opinion and Judicial Practice from the Perspective of Comparative Law

The Impact of Internet Public Opinion on Justice —Jiang Ge and Yao Jiaxin Cases in the Perspective of Comparative Law

The Impact of Internet Public Opinion on Justice —Jiang Ge and Yao Jiaxin Cases in the Perspective of Comparative Law

Legal and Economic Research on Internet Public Opinion and Justice —Jiang Ge Case and Yao Jiaxin Case from the Perspective of Comparative Law

Legal and Economic Research on Internet Public Opinion and Justice —Jiang Ge Case and Yao Jiaxin Case from the Perspective of Comparative Law

A Study on the System of Burden of Proof in Civil Litigation from a Comparative Law Perspective

A Study on the System of Burden of Proof in Civil Litigation from a Comparative Law Perspective

The Impact of Online Public Opinion on the Judiciary—From the Perspective of Comparative Law the Jiang Ge Case and the Yao Jiaxin Case

The Impact of Online Public Opinion on the Judiciary—From the Perspective of Comparative Law the Jiang Ge Case and the Yao Jiaxin Case

Comparative Law Perspective of China’s Procuratorial Organs Enterprise Compliance Non-Prosecution Discretion Analysis

Comparative Law Perspective of China’s Procuratorial Organs Enterprise Compliance Non-Prosecution Discretion Analysis