Rule Of Law System Research Articles

Extension Time Presidential Office Through Delay General Elections in A Constitutional Democracy Perspective

A democratic system in the state, which uses the rule of law system (rechtstaat), is a constitutional democracy. Constitutional democracy is a system which respects and implements the mandate of the Constitution and applicable laws. Constitutional law aims to create discipline, peace and welfare in a country based on applicable law. Constitutional democracy is a system applied in many countries worldwide, without exception in Indonesia. In Indonesia, an applied system is a presidential one. Thus, the leader of the government is the president and vice president. The regulation on the terms of office for the president and vice president was written in Article 7 of the 1945 Constitution of the Republic of Indonesia. Meanwhile, the general election mechanism is written in regulated law number 7/2017. Regarding the terms of office for the president and vice president, minister of Coordinator for Maritime Affairs and Investment Luhut Binsar Pandjaitan made a public opinion that postponing the 2024 elections would have consequences in prolonging the terms of office for the president and vice president. Thus, this statement makes a public outreach because the opinion is based on big data of public opinion from social media and is not strengthened by the legally applied basis in Indonesia. This statement has violated the code of ethics of a minister based on the general principles of good governance (AAUPB) in Article 10 of Law Number 30/2014 concerning Government Administration. In addition, this statement caused public uproar and had implications for upholding the 1945 Constitution of the Republic of Indonesia and violating the values ​​​​of constitutional democracy in Indonesia.

The Impact of China's Legal System on Public Health and Quality of Life during the COVID-19 Pandemic: An Empirical Study.

(1) Background: During the COVID-19 pandemic, the methods used to ensure the quality of public health and life changed. This study used empirical research methods to analyze the development of China’s legal system during the COVID-19 pandemic and its impact on the quality of public health and life and to clarify its importance in ensuring the quality of public health and life. (2) Materials and Methods: This study analyzed the development of China’s rule of law system during the COVID-19 pandemic by using two authoritative databases, the Peking University Magic Key Database and the China Judicial Documents Network, and examined the scope of public health and quality of life under this system. (3) Results: During the COVID-19 pandemic, China’s rule of law system, with the main objective of controlling the pandemic, developed rapidly, effectively ensuring the quality of public health and life in different areas. As part of this system, the administrative activities of government departments played a key role. (4) Conclusions: During the period of the COVID-19 pandemic, China’s legal system protected the quality of public health and life from the impact of the pandemic in many areas. Meanwhile, along with the important role of government administrative law enforcement activities in the prevention and control of a pandemic, the quality of public health and life should also be protected against illegal administrative acts in the future.

Methodological consciousness in the systematic study of the Civil Code of the People’s Republic of China

Methodological consciousness in the systematic study of the Civil Code of the People’s Republic of China

The Constitution of Legal System and Its Value of the Times

The rule of law system is the first legal construction project proposed by the Fourth Plenary Session of the 18th CPC Central Committee. Before the Fourth Plenary Session of the Central Committee of the Communist Party of China, no matter the political circles or the academic circles, whether at home or abroad, there was no knowledge about what the rule of law system is, and there was no real discussion about what the rule of law system is. The document of the Fourth Plenary Session of the CPC Central Committee did not make a clear explanation on what is the legal system. By carefully reading the documents of the Fourth Plenary Session of the CPC Central Committee, the Outline of the Construction of a Government Ruled by Law, the Outline of the 13th Five-year Plan, and the Report of the 19th National Congress of the Communist Party of China on the rule of law, we can find that the legal norm system, the implementation system, the supervision system and the guarantee system of the rule of law, and the system of laws and regulations within the party in the paragraph of the “overall goal of ruling the country by law in an all-round way” in the Decision on Ruling the Country by Law in an All-round Way are the legal system as the construction object. The socialist legal system with Chinese characteristics, as the “overall goal of ruling the country by law in an all-round way”, is a legal system composed of these five branches. The other sentences in “detailed description” describe the system attribute and direction, construction path and construction means of the legal system. The definition of the rule of law system as a system composed of five branches is consistent with the general plan of “ruling the country by law and building a socialist country ruled by law”, the general spirit of the Fourth Plenary Session of the CPC Central Committee, and the general goal arrangement in the Decision on Ruling the Country by Law in an All-round Way. The rule of law system in Xi Jinping’s thought is a rule of law system with the essential characteristics of “Chinese characteristics” and “socialism”. The construction of a rule of law system consisting of five branches is the core task of the new stage of China’s rule of law construction, and the main task to improve the level of building a country under the rule of law. China’s “promoting the rule of law in an all-round way” and “building a socialist legal system with Chinese characteristics” are perfect. The major measures of the socialist system with Chinese characteristics are also important measures to promote the modernization of the national governance system and governance capacity. The rule of law system is a brand-new legal knowledge, and the construction of legal system is an unprecedented legal construction project. A clear definition of the constitution of the rule of law system is conducive to delimiting the boundary of the new legal knowledge of the rule of law and clarifying the elements.

Why Do Firms Obey?: the State of Regulatory Compliance Research in China

Enforcement and compliance is a classic issue of concern in regulation literature. Despite a vast literature on regulatory agencies, compliance behavior of the regulated parties, especially business firms, is much less understood. The existing compliance literature draws on evidence from western societies and has predominantly focused on compliance in rule of law systems. However, in China where the rule of law remains weak, many regulations take the form of administrative regulative documents and administrative orders, some of which are extra-legal yet widely used as the basis for enforcing policies. Therefore, it is of particular importance to extend the scope of compliance research to the broader domain of government requirements. The “pervasive threat” model of compliance represents a potentially promising attempt to capture how businesses factor regulatory officials’ discretion into compliance decision-making. Future research should investigate the relationship between “pervasive threat” and other explanations for compliance, the sensitivity of different types of firms to pervasive threat, as well as the applicability of this model across policy areas.

Legal aspects of pharmaceutical E-commerce development against the " Internet+ " scenario

With the steady progress of the rule of law for Internet in China, Internet+ medicine is drawing greater attention and legislative demand.The enactment of E-commerce Law in early 2019 has provided rich legal connotations of Internet+ commerce scenario, clarifying its legal subject scope and legal service scope.The authors analyzed the legal system of medical E-commerce, and the legal obligations of medical E-commerce.From the following four aspects of legitimate business conduct, consumer rights protection, platform responsibility and intellectual property protection, the authors held that the current legal regulation of medical E-commerce is plagued by major setbacks as follows.These setbacks include incomplete legislation, low legal ranking, ambiguous subject definition and legal guidance, as well as lack of behavior regulation and unclear legal obligations.In this regard, the state is recommended to advocate the enactment of the Pharmaceutical E-commerce Law, speed up the revision of a series of laws and regulations, and improve the supporting service policies as a whole, so as to strengthen the rule of law regulation of future pharmaceutical E-commerce. Key words: Law; Rule of law system; Internet+ ; E-commerce law; Pharmaceutical E-commerce

The Usage of What Country: A Critical Analysis of Legal Ethics in Transnational Legal Practice

AbstractThis article maintains that the standard conception of legal ethics – the so-called ‘theory of amorality’ – is highly dependent on context and cannot be consistently applied to transnational legal practice. After defining in some detail the basic tenets of the standard conception, I identify its main assumptions, namely, (i) that a legal relation is an agency relation in which both lawyer and client are individual moral agents, (ii) that such relation is connected to a litigation process, and (iii) that such relation takes place within the framework of a decently well-functioning rule of law system. Using as a paradigmatic example the BTC pipeline case– a set of contracts and international treaties signed by a consortium of private companies and several sovereign states during the first decade of the 21st century to regulate the building and operation of a transnational oil pipeline – I analyze one by one these three assumptions to conclude that they are at the very least highly problematic in the context of global legal practice. Additionally, I consider the counter-argument that a lawyer who moves beyond the standard conception is actually usurping the role of the judge, an argument that loses much of its appeal on the transnational context. In a brief concluding remark I inscribe these problems within the more general post-Westphalian paradigm shift in law and jurisprudence.

The Rule of Law Model of Internet Governance

The rule of law is the basic form of national governance and the rule of law model is the necessary direction for the governance of online society. Online society is in essence a new pattern of social relationships and structural forms comprising relationships among citizens, legal persons, organizational bodies, etc., formed and brought together on the basis of Internet technology; and also a reflection, expansion and expression, singly or in synthesis, of various relationships in the fields of the real economy, politics, culture, society and the environment. The rule of law model of Internet governance refers to governance theories, systems and practices that employ rule of law thinking and the rule of law model to bring the elements, structures, procedures and functions of Internet governance into the scope of the rule of law and its operational track. Reviewing the tortuous course of the development of rule of law Internet governance in China, summarizing useful experience in the construction of rule of law Internet governance, and reflecting on existing legislative, law enforcement and judicial dilemmas will enable us to build up a rule of law system of online governance with comprehensive norms, effective implementation, strict supervision and strong guarantees. This will be marked by Chinese characteristics and will ensure the application of rule of law thinking and the rule of law model in governing, operating, using and safeguarding the Internet, thus achieving sound and orderly Internet operation and development along the path of the rule of law and advancing the modernization of the Internet governance system and governance capability.

The Development of Jurisprudence in China

Over the past forty years since the launch of reform and opening up in 1978, China has passed through three developmental stages: recovery, stability and flourishing growth. This development has revolved around the axis of “politics—rule by law—rule of law— rule of law system—rule of law path—rule of law China.” By virtue of discussion of the core themes of jurisprudence and basic categories, jurisprudence has mounted ever higher. On the basis of summing up existing experience, the development and progress of Chinese jurisprudence in the new era should firmly uphold a disciplinary orientation, an indigenous orientation, a mass orientation and an orientation toward practice and modernization. We must seek new logical starting points, constantly pioneer and innovate, and contribute new wisdom and programs to the comprehensive governance of the country according to law.

European Union’s Rule of Law in Climate Governance and the Enlightenment to China

Climate change has developed into a global problem that threatens human existence. The European Union (EU) was the first to start climate governance, and has formed an effective, mature governance model and the rule of law system. The recognition of climate and social rules has led to the formation of a multi-party governance network. The analysis of the gains and losses of EU climate control aims at deepening our understanding of climate governance laws and providing new ideas for climate governance in different countries. The rapid and extensive development in China has also brought a series of climatic problems, but the “fragmentation” governance scheme has suffered “bottleneck” in the governance effect. This paper introduces the practice and legal experience of European Union climate control to give some enlightenment and promotion to China’s climate control.

Information sharing, secrecy and trust among law enforcement and secret service institutions in the European Union

Transnational information sharing among security agencies in the European Union and beyond has grown considerably more important over the past decades. Centralised databases and numerous formal and informal networks now facilitate cooperation and information sharing. However, sharing intelligence may not only conflict with the protection of fundamental rights (data protection/privacy; presumption of innocence), but also with the organisational culture of institutions that are built upon secrecy. Police agencies often keep knowledge about individual cases and their strategies secret as long as possible. Intelligence services build their work and strategies upon secrecy even more. This paper analyses the variations of secrecy that can be observed for police agencies and secret services, and the relationship between information sharing among security agencies, secrecy, trust, transparency and accountability. In a normative perspective, the paper explores answers to the questions of how secret the work of security agencies should be in democratic rule of law systems and how accountability can be improved without making these institutions work less effectively.

Does Corruption End the Dominant Party System? A Comparative Analysis of the Italian and Turkish Cases

This article argues that the effects of high-level corruption scandals on the future of a dominant party depend on the existence of a rule of law system based on the separation of powers. The article will study two examples from a comparative perspective to concretise its theoretical claims: the Christian Democracy Party in Italy, which was the dominant party from 1948 to 1992, and the Justice and Development Party in Turkey. The comparison will be based on an institutionalist perspective. The first part tries to provide a theoretical clarification of the concepts of predominant party systems and corruption. The second part discusses whether the Turkish and Italian party systems can be classified as predominant and the characteristics of these systems. The final section seeks to draw out similarities and differences between these two systems and the effects corruption has on them.

Between the Judge and the LawwJudicial Independence and Authority with Chinese Characteristics

What is the scope and nature of judicial reform? To what extent does borrowing from Western models also suggest an embrace of the underlying ideologies that frame those models? It is a common place in the West, whether in Common Law or Civil Law states, that the integrity of the judiciary depends on their authority to interpret law and to apply that interpretation to individual cases and the litigants that appear before the courts. That presumption, however, embeds premises about the organization of political and administrative authority that may be incompatible with those of states developing Socialist Rule of Law structures within Party-State systems. In Common law states those deep presumptions touch on the disciplinary role of judicial opinions as a constraint on judicial interpretation. In civil law states that discipline arises from the constraining principles of the legal codes themselves. In both the legislatures serve as the ultimate check in a complex dialogue with courts in three respects. First, judges serve a political role in their relation to law. Second, cases themselves serve an important political role as well. Third, courts begin to serve as the place where societal narratives are forged and popular expression is constructed and applied. In Socialist rule of law systems, the disciplinary systems are quite different and ought to produce a different relationship between courts, law, and the cases they are bound to apply fairly and consistently under law. This paper considers the way that the logic and grounding principles of Chinese Marxist Leninism may provide guidance in the construction of a judicial enterprise that is both true to its organizational logic and which enhances the authority of judges to serve litigants fairly. It suggests the points of compatibility and incompatibility in the ideologies of these distinct systems of judging and what it may mean for judicial reform in China. That consideration, in turn is based on a fundamental difference, in Socialist Rule of Law systems, between the authority to interpret law and the authority to apply law to an individual case. For Chinese judicial reform it is in the perfectibility of the judge that lies the perfectibility of law that in turn ensures the perfectibility of the judge. Part II considers in very broad strokes the relationship between the judge and law in the West. Part III then considers Chinese reforms touching on the relationship between the judge and the law, and the evolution of normative structures within which one can speak to judicial independence. Part IV then considers the project from the perspective of the grounding ideology of the Chinese state. From that fundamental distinction, the paper will propose a Socialist approach to the judicial function compatible with its own logic and legitimacy enhancing under global consensus principles for a well-organized and functioning judiciary.

Rule of Law and Conflict Prevention in Cameroon

This paper discusses how a solid rule of law system could prevent the out break of war in Cameroon. Except for Boko Haram insurgency in the Northern part of the country, which is a foreign war from Nigeria, Cameroon has experienced all forms of conflict except for war which is only an atom of direct violence as described by Prof. Johan Galtung.

Security sector reform – theory and practice

Security Sector Reform (SSR) is a concept and activity of the democratic transformation of defence, justice and rule of law systems. In accordance with the United Nations approach, SSR is critical to the consolidation of peace and stability, promoting poverty reduction, rule of law and good governance, extending legitimate state authority and preventing countries from relapsing into conflict. Over the last few decades, with many countries evolving and developing democratic processes, the concept has gained interest and popularity in international organisations and states heading towards a positive change. In the past, full SSR activities had been successfully conducted in central and east European post-communist countries. Nowadays, the process is carried out among African and Middle East countries, in some of them this being extremely challenging. A considerable degree of complexity characterizes the SSR processes. For this reason, a great deal of effort has been exerted with the aim of normalising rules and conditions for conducting SSR. The purpose of these activities is to ensure the widest possible effect of the use of scarce expert resources. SSR is a relatively new area of expertise suffering from a scarcity of literature presenting theory in conjunction with practice. During the research conducted it was assumed that, in spite of a wide array of actions to be executed within SSR in different states, they should be interconnected by a general model which would ensure the greatest effect. The aim of this essay is to present selected theoretical aspects of SSR, essential for increasing the effectiveness of the reforms conducted, illustrated with a practical example of the SSR process in Egypt.

The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind them All

From its from its inception, the U.N. Guiding Principles for Business and Human Rights (GPs) have occupied a contentious and dynamic space — at once setting the framework for operationalization of regimes of business and human rights by states and enterprises, and simultaneously posing as either as a gateway or obstacle to the production of international law and national legal regulation of the activities of business enterprises. This article considers the issues emerging from the front lines of these battlegrounds: (1) the conceptualization of the state duty to protect human rights through the framing of national action plans, (2) the operationalization of the corporate responsibility to respect human rights through the framing of societally constituted reporting and assessment programs, and (3) the re-invention of the GP project as an expression of two dimensional internationalized state power and its challenge to the GP’s three dimensional project. Section II examines the way states might approach their obligations to protect human rights as elaborated most recently in the GPs. Using the framework of National Action Plans recently encouraged by the UN Working Group on the issue of human rights and transnational corporations and other business enterprises, the section suggests that these plans, and the approach undertaken by many states to implement the GPs may be misdirected. Section III turns to a consideration of the equally thorny issue of enterprise approaches to their obligations to respect human rights under the GPs. Two are examined more closely: (1) the quite promising framework, the Human Rights Reporting and Assurance Frameworks Initiative (RAFI) Project, and (2) the recent efforts of the World Federation of Exchanges’ (WFE) new sustainability working group to consider an Investor Listing Standards Proposal. Both are promising yet might be modified to better operationalize the corporate responsibility to respect human rights. Section IV turns to the effect of a move to supplement or supplant the GPs with a treaty framework. Yet, if the NAP framework and the RAFI/WFE processes can be most usefully understood as mapping projects preliminary to the hard substantive work of constructing rule of law norms in the legal and societal spheres, then the current treaty making effort represents both a culmination of the GP process and an effort to return to the state of things before the GP process started. That contradiction requires resolution. The article proposes a way in which the move toward treaty making may be integrated with the GPs state duty to protect prong and the discipline of NAPs and may help to frame interactions with the corporate responsibility. The current efforts to develop a treaty for business and human rights, then, might be most usefully understood and applied in this light — to use the treaty machinery to construct a well-integrated, long term, and ultimately comprehensive rule of law system for business and human rights, binding on all states, which can serve as a means of connection with the development of transnational business behavior norms that fall within the social (non-state) sphere. Together these three efforts suggest the current context of the project of business and human rights, a context in which the role of state, enterprise and international community remains fluid, contingent and undefined. The choices made by each of these critical players will determine the shape of business and human rights governance systems for some time to come. A later version will be published with the Fordham International Law Journal Vol. 38.

Constitutionalization of judicial independence: In comparative law and in Serbian legislation

The aim of this paper is to point out that the guarantees of judicial independence have to be regulated by the Constitution as they create de iure framework for the independence of the judiciary in the rule of law system. The author is aware that the constitutional guarantees are per se insufficient and that their primary features may yield different effects depending on the political environment and cultural matrix in which they take effect. The judicial system operates in the circumstances of the separation of powers, where the independent judiciary is corroborated a guarantee of the rule of law. Hence, it is important to concurrently elaborate on the institutional and personal guarantees of judicial independence, focusing on the responsibility of the political authorities to create a relevant social environment for the operation of the independent judiciary as well as on the responsibility of the judiciary to independently exercise their judicial function. The author's intention in this paper is to provides a comparative analysis on the guarantees of independent judiciary and the minimum rules that constitute the cohesive core which serves as the common meeting grounds not only for the EU member states but also for all countries of the European-Continental legal system in their efforts to ensure the judicial independence as the primary condition for exercising the rule of law. The corpus of constitutional guarantees on independent judiciary includes the following elements: the judicial appointments and termination of a judicial office; the permanence of the judicial office and impartiality in decision-making processes; the professional responsibility and judicial immunity; as well as the recently established judicial councils, which have been given the constitutional authority to protect the independence of the judiciary.

Outing Courtesy: The Role of Rude Dissent in Rule of Law Systems

This essay critically examines Keith Bybee's All Judges Are Political, Except When They Are Not. Although Bybee's creative use of the cultural form of courtesy helps us better understand the consensus-building and legitimating features of rule-of-law systems, it overlooks the role that rude dissent can play in exposing the violent, exclusionary, and materially disadvantaging aspects of such systems. Using examples of outing closeted public figures and the rude AIDS activism of the 1990s, this essay explores the rule of law from the perspective of those who are subject to it.

The Politics of Rule of Law Systems in Developmental States: ‘Political Settlements’ as a Basis for Promoting Effective Justice Institutions for Marginalized Groups

The rule of law (ROL), although an “essentially contested concept”, can be understood pragmatically as a system that informs people of what to expect from others through durable and enforceable rules applying equally to all constituent members of a given juridical space. This literature review engages with “the politics of what works” with regard to ROL interventions in development, through an exploration of how these expectations and encompassing rules are shaped within and between groups, as political settlements broaden across political, economic and social dimensions. We understand the politics of ROL as deeply complex and inherently multi-directional: elites, for example, certainly use ROL, but legalization is powerful and can be used in unpredictable ways against elites by other elite groups or by non-elite actors. We review an extensive literature to explore how contests among and between elites and end users shape institutions through a contested, iterative and dynamic process that, in any given setting, is likely to yield an idiosyncratic outcome borne of a unique hybrid mix of local and external inputs. As such, “more research” as conventionally understood will only yield marginal improvements in conceptual clarity and to our cumulative empirical knowledge of the dynamic relationship between ROL, politics and development. The political salience, legitimacy and action-ability of such understandings much be negotiated anew in each setting, between different epistemic groups (professions, users, policymakers) and across divides of gender, ideology and class. We conclude with some specific suggestions for how to enhance the rigor and relevance of ROL interventions from both an analytical and practical standpoint.

Looking Back, Moving Forward: UN Peace Operations and Rule of Law Assistance in Africa, 1989-2010

This article presents a bird’s-eye view of two decades of UN rule of law assistance in Africa. The article is based on a dataset developed by the Folke Bernadotte Academy which covers a total of 36 UN peace operations (peacekeeping, political missions and offices). Implementing comprehensive rule of law strategies is challenging for the UN as a whole, not least where peace operations are deployed. Such operations are deployed in situations where the rule of law is severely tested and where in such environments UN staff perform a number of critical functions, ranging from developing national rule of law plans and strategies, coordinating national and international stakeholders, advising on justice matters and providing technical expertise on specific topics. For the two leading UN entities in relation to post-conflict societies, the Department of Peacekeeping Operations and the Department of Political Affairs, the translating of rule of law policy into practical programme activities is a daunting task, specifically in terms of providing assistance that is timely, situational and aligned with the national priorities of the host country. While there have been many positive developments in the UN’s rule of law system over the past decade in terms of policy, practical experience and competencies earned on the ground, observations made on the basis of empirical data raise a number of questions critical to the UN’s future commitment to rule of law assistance in peacekeeping and peace-building.