Comparative and Foreign Law Commons^™

Why Did China Reform Its Death Penalty?, Kandis Scott

Washington International Law Journal

China recently reformed its death penalty laws, and as a result the government has executed fewer prisoners. The author explores possible reasons and policy concerns behind China's legal reform. These influences include international forces and domestic factors, such as the media, changed circumstances, compassion, and politics. Although hardly transparent, the underlying motivations for the revisions suggest that eventually China may abolish capital punishment, perhaps even before the United States does so.

Balancing Security And Growth: Defining National Security Review Of Foreign Investment In China, Eric Jensen

Washington International Law Journal

One of the most recent steps in China’s slow march towards liberalization of foreign investment is the introduction of the 2006 Provisions on Acquisition of Domestic Enterprises by Foreign Investors (“2006 M&A Provisions”). Article 12 of this law provides new procedures for review and approval of foreign investment in China. China’s national security review of foreign direct investment has the same motivations as the United States’ Committee on Foreign Investment in the United States (CFIUS) review, but it is much murkier and less efficient. CFIUS is governed by numerous statutory and regulatory guidelines. China should integrate some of the CFIUS …

Certain Opinions Of The Central Committee Of The Chinese Communist Party [And The] State Council On Promoting The Stable Development Of Agriculture And Continuing To Increase Farmers' Income In 2009, Tobias Damm-Luhr

Washington International Law Journal

The following is a translation of Certain Opinions of the State Council [and the] Central Committee of the Chinese Communist Party (“CCP”) on Promoting the Stable Development of Agriculture and Continuing to Increase Farmers’ Incomes in 2009 (“2009 No. 1 Document”), which the CPC Central Committee and the State Council promulgated on December 31, 2008, and made public on February 2, 2009. It calls on “every region and every department” to seriously study the blueprint created by the Third Plenary Session of the CPC’s 17th Central Committee, namely the Decision on Certain Issues Concerning the Advancement of Rural Reform and …

Can Islamizing A Legal System Ever Help Promote Liberal Democracy: A View From Pakistan, Clark B. Lombardi

Articles

Over the past twenty-five years, academics in Europe and the United States have written a great deal about the relationship between Islam and democracy, and between Islam and human rights. This scholarship often fails to acknowledge or take into account similar debates that occurred earlier during a period of decolonization. This article discusses the work of a Christian judge who served on the Supreme Court of Pakistan. This judge, A.R. Cornelius, was a famous Cambridge-educated legal liberal who courageously tried in the 1950s and 60s to protect human rights as Pakistan came under martial rule. Cornelius came to argue shockingly …

A Current Review Of Chinese Land-Use Law And Policy: A "Breakthrough" In Rural Reform?, Robin Dean, Tobias Damm-Luhr

Washington International Law Journal

Three decades ago, China moved from a communal system of farming to a system that granted more extensive land-use rights to individual households, starting rural China on a path to greater prosperity. Today, however, the law and policy promulgated by the Chinese government prevents farmers from fully realizing this prosperity. The Land Administration Law gives farmers thirty-year contractual rights to the land they farm and the Law on Rural Land Contracting strengthens this right by more specifically enumerating requirements for land contracting and the transfer of contractual rights. Nevertheless, the rural-urban gap is the worst it has been in decades …

Rise Of Political Populism And The Trouble With The Legal Profession In China, Dongsheng Zang

Articles

This essay looks into recent efforts by the ruling party in China to tighten control of the judiciary, the lawyers and prosecutors under the slogan of "harmonious society" in the last couple of years. This reversed the direction of judicial reform under the leadership of Xiao Yang, during his tenure as President of the Supreme People's Court before 2008. The trouble with the legal profession in China, the essay asserts, is not only that it loses its professional autonomy thus its ability to act as a sociopolitical force that is independent from the ruling political party; but also, by virtue …

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

Articles

When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

Electronic Money And The Law: Legal Realities And Future Challenges, Nobuhiko Sugiura, Jean J. Luyat

Washington International Law Journal

The following is a translation of Electronic Money and the Law: Legal Realities and Future Challenges, an essay written by Professor Nobuhiko Sugiura in the August 1, 2008 issue of the Japanese periodical Jurisuto. Stored-value cards are growing rapidly in urban areas in Japan, to a degree where they are beginning to challenge cash as a primary method of payment. In this article, Professor Sugiura outlines the growth of stored-value cards, how stored-value cards should be defined, legal structures that currently regulate stored-value cards, and how growth and technological development are likely to affect that legal structure. As Japan’s takes …

Australia's Heritage Protection Act: An Alternative To Copyright In The Struggle To Protect Communal Interests In Authored Works Of Folklore, Jake Phillips

Washington International Law Journal

Australian indigenous communities are vulnerable to communal harm inflicted by the unauthorized, derogatory use of their works of folklore. Such works are often considered sacred to indigenous communities and are granted significant protection under customary law. However, under many circumstances, the 1968 Copyright Act, the Australian law governing authored works, fails to protect works of indigenous folklore. While an amendment to the Copyright Act appears a likely next step in Australia’s efforts to recognize a community’s interest in communal works of folklore, Australia’s Heritage Protection Act represents a more appropriate and efficient vehicle for addressing unique communal interests in these …

Reaching Back To Move Forward: Using Adverse Possession To Resolve Land Conflicts In Timor-Leste, Charlotte C. Williams

Washington International Law Journal

Like many post-conflict countries, Timor-Leste grapples with land conflicts that resulted from successive waves of property dispossession. Colonized by the Portuguese, invaded and occupied by the Indonesians, and briefly administered by the United Nations, Timor-Leste’s history has produced disjointed patterns of land tenure. These land tenure systems have given rise to five separate categories of land claimants, each of whom often have conflicting interests in property. While the newly independent country has taken steps to resolve conflicting land claims through legislation, existing law does not address the longstanding tensions underlying these conflicts, making it difficult for the courts to reach …

A Tale Of Regulation In The European Union And Japan: Does Characterizing The Business Of Stored-Value Cards As A Financial Activity Impact Its Development?, Jean J. Luyat

Washington International Law Journal

The use of stored-value cards is growing rapidly in urban areas in Japan and gaining acceptance as a major means of payment. While institutional and cultural factors as well as business strategies go far in explaining the rapid growth of stored-value cards in Japan, regulation has also played an important role in enabling their use. In Japan, the regulation of stored-value cards has been mostly left to the Prepaid Card Law, which provides a comparatively simple regulatory framework with flexible capital requirements. The European Union (“EU”) and France provide a compelling counter-example to Japan; the EU has pursued a different …

Getting Property Right: "Informal" Mortgages In The Japanese Courts, Frank G. Bennette Jr.

Washington International Law Journal

In Japan’s civil law property system, courts recognize a form of extra-statutory security, the jōto tanpo or “title-transfer security interest,” that is created by conveying legal title to the creditor, with a promise to restore it to the debtor upon repayment. Although best known today as a means to providing security in movables, jōto tanpo was originally an alternative means of mortgaging real estate, and this latter use of the interest is the subject of this Article. The two early attractions of the jōto tanpo interest to creditors were 1) the ability to avoid inefficient procedures for the enforcement of …

Modernizing Charity Law In China, Rebecca Lee

Washington International Law Journal

In recent years, the cultivation of domestic charities has been an important item on the development agenda of the Chinese government. In pursuit of this end, China has attempted to modernize its laws governing charitable organizations. Despite these welcome attempts and a rich tradition of philanthropy, China’s existing legal framework still fails to support an effective charitable sector. The government, noting the crucial role of the charitable sector, has begun drafting a comprehensive statute that will govern charities. In light of these emergent trends, this paper critically examines the inadequacies of the existing legal structure, highlighting the need to devise …

No Room For Dissent: China's Laws Against Disturbing Social Order Undermine Its Commitments To Free Speech And Hamper The Rule Of Law, Mindy Kristin Longanecker

Washington International Law Journal

The term “disturbing social order” appears in several Chinese civil and criminal laws. The vagueness of these three words, combined with the national culture of censorship, undermines various legal provisions that guarantee freedom of speech in China. As a result, laws against disturbing social order suppress nonviolent political speech in this rising world power. This became clear during the 2008 Summer Olympics in Beijing, where both individual protestors and corps of journalists found their work frustrated by laws against disturbing social order. Chinese lawmakers could remedy this conflict of laws by clarifying the term “disturbing social order,” and by creating …

Safeguarding China's Cultural History: Proposed Amendments To The 2002 Law On The Protection Of Cultural Relics, Amanda K. Maus

Washington International Law Journal

The 2002 Law on the Protection of Cultural Relics (“2002 Law”) has done little to safeguard cultural property in China. While the statute provides general procedures for relic collection, protection, and cataloging, and sets punishments for individuals and entities that violate the law, it does not furnish funding for the implementation of these measures. Amendments in 2007 failed to address the major problems of the 2002 Law—notably, the lack of incentives to return stolen or looted property and insufficient funding of the law. Due to these problems, the 2002 Law should again be amended to create a fund for the …

Article 14 Of China's New Labor Contract Law: Using Open-Term Contracts To Appropriately Balance Worker Protection And Employer Flexibility, Jovita T. Wang

Washington International Law Journal

China’s economy rapidly developed as it shifted from a planned economy to a market economy. Cheap labor encouraged foreign companies to conduct business in China, but that business came at the expense of labor protection. Workers who had previously enjoyed lifetime employment suddenly faced rampant layoffs, labor abuse, and unemployment. Despite China’s implementation of the Labor Law in 1994, labor abuse continued, especially by employers refusing to follow written contract requests to define the employment relationship. Many workers were left unprotected. In response to these problems, China passed the Labor Contract Law in 2007 to clarify requirements of employment contracts …

A Study Of Cyber-Violence And Internet Service Providers' Liability: Lessons From China, Anne S.Y. Cheung

Washington International Law Journal

Cyber-violence and harassment have been on the rise and have been a worrying trend worldwide. With the rise of blogs, discussion boards, and Youtube, we may become targets of false allegations or our movements and gestures may have been captured by modern technology at any moment to be broadcast on the Internet for a public trial of millions to judge. In China, netizens have resorted to cyber manhunt, known as the “human flesh search engine,” to expose details of individuals who have violated social norms one way or another, achieving social shaming, monitoring and ostracism. Individuals concerned have little legal …

Directors' Liability For Corporate Faults And Defaults—An International Comparison, Helen Anderson

Washington International Law Journal

Australia’s new Rudd Government has indicated to business leaders that it intends to review various aspects of corporate law, including the imposition of personal liability on directors for corporate fault. Their concern is that the present corporate law regime is causing directors to be overly cautious in making decisions, to the detriment of the efficient operation of companies and the well-being of our economy. At the same time, the government acknowledges the importance of imposing appropriate sanctions where a company or its officers fail to meet required standards. These are universal concerns. To inform this debate, this article will look …

Thin Shields Pierce Easily: A Case For Fortifying The Journalists' Privilege In New Zealand, Devin M. Smith

Washington International Law Journal

In late 2006, New Zealand’s Parliament inserted Section 68 into the nation’s Evidence Act 2006, providing for the first time a testimonial privilege specifically protecting journalists from compelled disclosure of their confidential sources. The privilege, commonly referred to as a shield law, has been met with approval from politicians, media commentators, and journalists, both in New Zealand and beyond. While New Zealand’s reporter shield law goes a long way toward extending press freedoms, it ultimately falls short of the country’s historically robust commitment to the free flow of information. Section 68’s most glaring shortcoming is the ease with which a …

Entitled Against None: How The Wrongly Decided Croker Island Case Perpetuates Aboriginal Dispossession, Siiri Aileen Wilson

Washington International Law Journal

Australia’s 1992 landmark case of Mabo v. The State of Queensland [No. 2] revoked the concept of terra nullius and for the first time since European colonization of the continent allowed indigenous Australians to obtain legal ownership of their traditional lands. The following year this groundbreaking decision became statutory law with the enactment of the Native Title Act (NTA) of 1993. The case law and the statutory act both failed, however, to adequately address the question of Aboriginal claims to sea properties. For many Australian Aboriginal groups, ownership of traditional lands does not abruptly end at a shoreline but extends …

China's Environmental Problems: Is A Specialized Court The Solution?, Darcey J. Goetz

Washington International Law Journal

China’s economic growth has come at a high price: environmental and natural resource destruction. Presently, China’s legal system is not prepared to protect China’s environmental resources. China’s State Council has expressed an interest in establishing a civil and administrative system to manage environmental matters. Some of the objectives expressed by the State Council could be achieved by creating a special tribunal to address environmental issues, similar to New Zealand’s Environment Court. A specialized court promotes environmental protection, and specialization creates experts in a specific field, allowing for consistency among decisions. An environmental court will fit into China’s current legal system …

Comprehensive Strengthening Of Intellectual Property Adjudication Will Provide Powerful Judicial Guarantees For Constructing An Innovation-Based Country And Harmonious Society, Cao Jianming, Josef Rawert

Washington International Law Journal

Multinational corporations and other foreigners bringing foreign direct investment to China have been willing to operate at a loss and risk having their intellectual property rights (“IPR”) infringed without recourse to effective legal protection, because they see a pay-off in the long run. As market reforms deepen and China’s economy continues to develop, so too will the power of judicial protection of IPR strengthen, the argument goes. This long-term outlook expects acceptable levels of legal protections for IPR to emerge and that significant competitive advantage will be enjoyed by those firmly established in Chinese markets when that happens. But what …

Disability Rights In Cambodia: Using The Convention On The Rights Of People With Disabilities To Expose Human Rights Violations, Ulrike Buschbacher Connelly

Washington International Law Journal

In Cambodia, the percentage of the population living with disabilities is one of the highest in the world. At least 650,000 Cambodians live with a disability, and the exact count may be as high as 1.4 million. The incidence of disability is also expected to increase in the future. Despite the fact that many Cambodians have at least one disability, the country does not have adequate legal provisions to protect the human rights of people with disabilities. There are no comprehensive laws that address disability issues. The few existing laws provide only implicit protections and some directly discriminate against people …

Restrictions On Political Activity By Judges In Japan And The United States: The Cases Of Judge Teranishi And Justice Sanders, Daniel H. Foote

Articles

In the late 1990s, similar dramas relating to political activity by judges were playing out on opposite sides of the Pacific Ocean. The cases involved a Japanese decision concerning an assistant judge of the Sendai District Court, Teranishi Kazushi, and an American decision relating to a newly sworn-in justice of the Supreme Court of the State of Washington, Richard Sanders. Both attended gatherings with distinctly political agendas. Both made brief remarks implying, but never directly stating, their support for the agendas presented. Both were censured for having engaged in impermissible political activity. Both appealed those censures, ultimately as far as …

Green From Above: Climate Change, New Developmental Strategy, And Regulatory Choice In China, Dongsheng Zang

Articles

This essay discusses a developmental strategy formulated in China between 2004 and 2007, with a strong emphasis on energy efficiency in response to growing pressure from global concerns of climate change. It tries to show how a top-down regulatory structure was reinforced in the process.

China's New Anti-Monopoly Law: A Perspective From The United States, Thomas R. Howell, Alan Wm. Wolff, Rachel Howe, Diane Oh

Washington International Law Journal

In August 2007, China enacted an Anti-Monopoly Law, becoming one of roughly ninety nations to establish a comprehensive regulatory regime governing competition. Since the advent of China’s economic reform program beginning three decades ago, China has been moving to integrate its economy within the global trading system. This article provides an overview of China’s Anti-Monopoly Law (“AML”) emphasizing key areas of significant apparent divergence from U.S. antitrust policy. The article addresses the evolution of anti-monopoly policy in China and the United States, observing that, where differences exist, China’s AML frequently reflects principles similar to those once embedded in U.S. antitrust …

Redefining Motherhood: Discrimination In Legal Parenthood In Japan, Rachel Brehm King

Washington International Law Journal

Due to Japan’s decreasing population numbers and low birth rate, the country’s legal forces and social norms put tremendous pressure on women to have children. To meet these expectations, Japanese women frequently turn to new forms of medical assistance called Assisted Reproductive Technology (“ART”) to increase their ability to become mothers. ART includes such procedures as artificial insemination, in vitro fertilization, and surrogacy. Although several of these methods are accepted by Japanese law and society, other forms of ART, including certain forms of artificial insemination and surrogacy, are strongly disapproved. Japan’s current legal framework prevents women from accessing the full …

From Environment To Energy: China's Reconceptualization Of Climate Change, Dongsheng Zang

Articles

Domestically and internationally, by the first half of 2009 it was already questionable whether the Copenhagen Conference could achieve anything. Anthony Giddens warned-in an otherwise inspiring book on climate change-that "doomsday is no longer a religious concept, a day of spiritual reckoning, but a possibility imminent in our society and economy." In such a context, it becomes imperative to revisit some of the fundamental issues in the Kyoto Protocol framework. Are timetables and targets really the best way to regulate climate change? Does the current framework create bad politics? Where are the powerful driving forces towards a low-carbon society?

This …

Success Or Failure?: Japan's National Strategy On Intellectual Property And Evaluation Of Its Impact From The Comparative Law Perspective, Toshiko Takenaka

Articles

This short Article will discuss Japan's national IP strategy and changes brought to the IP system, focusing on features that follow the U.S. IP system. Additionally, it will review these changes from the comparative law perspective and evaluate whether the new system has accomplished its national strategy mission.

"Pollute First, Control Later" No More: Combating Environmental Degradation In China Through An Approach Based In Public Interest Litigation And Public Participation, Christine J. Lee

Washington International Law Journal

As China continues to face severe environmental degradation as a side effect of torrid economic growth and rise in population, the Chinese government has promulgated numerous environmental laws over the past few decades to address this critical issue. The efficacy of these laws, however, has been highly questionable. Although the laws themselves—modeled substantially on United States and European environmental laws—are relatively complete and comprehensive, difficulties in implementation and particularly enforcement have led to the continued deterioration of China’s environment. These failures in implementation and enforcement of environmental laws emerge from numerous factors, most notably from the decentralized structure of China’s …