Comparative and Foreign Law Commons^™

Past Is Present: Urban Real Property Rights And Housing Reform In The People's Republic Of China, William D. Soileau

Washington International Law Journal

Since the early 1980s China has embarked on an ambitious program of reform in the systems of urban real property rights and allocation. In many respects, these reforms recall the policies of private property rights protection which prevailed in the early post-Liberation period of P.R.C. history, but which were subsequently abandoned in the Great Leap Forward and Cultural Revolution. In the intervening thirty years, however, the system of "public" urban housing ownership and allocation deteriorated to such an extent that no one—neither the state, its agents, nor private individuals—had sufficient incentives to increase or even preserve these resources. Faced with …

Gasshūkoku Ni Okeru Hōgakkai To Hōjitsumukai [The Worlds Of Academics And Legal Practice In The United States], Daniel H. Foote

Articles

I prepared this paper for a symposium entitled, "Academics and Practitioners in Japan and the United States: Can the Two Worlds Ever Meet?" When I saw the symposium title, my first reaction was that it might seem strange to ask whether the worlds of academics and legal practice can ever meet in the United States. After all, to a large degree the history of the law school in the United States has been that of an institution dedicated to the training of legal practitioners; the vast majority of US law professors are members of the bar; and many, if not …

Resolution Of Traffic Accident Disputes And Judicial Activism In Japan, Daniel H. Foote

Articles

The topic of resolution of traffic accident cases in Japan has already seen two works in English: a 1989 article by J. Mark Ramseyer and Minoru Nakazato in the Journal of Legal Studies and a 1990 article by Takao Tanase in the Law and Society Review. Why yet another article?

First, despite the fine treatment of a wide range of issues in those articles, neither of those works gave much attention to what I regard as one of the most interesting and important aspects of the Japanese treatment of automobile accident cases: namely, the role of the judiciary and the …

Four Views Of Japanese Attorneys, Daniel H. Foote

Articles

The four articles translated below appeared in a special collection entitled: Bengoshi--san Monosatari-or, A Tale of Lawyers. This collection was No. 198 in the Bessatsu Takarajma series, a series that contains such other tides as: How to Develop Brain Power (Noryoku toreningu no gijutsu, No. 41), The Court Game (Salban gemu, No. 169), and The Dark Side of Real Estate (Fudosan no ura, No. 177). As these titles ·reflect, publications in the series are aimed at the mass market. not the world of academics. A further caveat is thatr as with the majority …

Gilding The Iron Rice Bowl: The Illusion Of Shareholder Rights In China, Matthew D. Latimer

Washington Law Review

In the late 1970s, the People's Republic of China (P.R.C.) embarked upon a program of economic reform that has resulted in the issuance of equity securities in previously state-owned enterprises. with the recent advent of national stockmarkets, national securities legislation is emerging to supplement and further define prior local-level regulation. Despite these new laws, however, private investors still lack many of the protections enjoyed by investors in Western financial markets. This Comment examines these disparities and suggests that non-state investors in China's nascent financial markets still lack an effective means of overseeing the policy decisions of State-owned corporations and face …

Revision Of The Japanese Patent And Utlility Model System, Nobuo Monya, Marvin Motsenbocker, Hiroki Mitsumata

Washington International Law Journal

As part of the international harmonization of industrial property rights, in the summer of 1992 a U.S. advisory committee published recommendations concerning revisions to the patent system. The Industrial Property Council of Japan also published a report at the end of 1992 concerning revisions to the patent law and utility model law. Soon thereafter the U.S. administration in Washington changed, and the U.S. position on patent law harmonization became unclear. Japan, however, enacted its report into legislation. Japan revised the relevant parts of its Patent Law (Law No. 26 of 1993) on April 16, 1993, and the revisions were promulgated …

An Agenda For Revising The Taxation Of Philanthropy In Japan, Koji Ishimura

Washington International Law Journal

As the size and scope of Japan's philanthropic activities have grown, so has the need to re-examine Japan's tax policies with regards to charitable giving and volunteerism. In particular, there is a need to review the classification of tax-exempt entities under the Corporate Tax Law to ensure that only bona fide non-profit activities are tax-exempt. Japan should also explore new tax incentives to encourage volunteerism, such as allowing deductions for out-of-pocket expenses incident to charity work, carryovers, and a liberalization of Japan's current system for specific itemized deductions. Finally, Japan's tax policies should be used to encourage more cross-border philanthropy …

China's Gatt Bid: Why All The Fuss About Currency Controls, Chris Brown

Washington International Law Journal

China did not succeed in its bid to join the General Agreement on Tariffs and Trade (GATT) during the Uruguay Round. A key stumbling block was China's mechanism of exchange rate controls. From the mid-1980s to the end of 1993, China used a dual-rate currency mechanism, administering these rates through a loose network of about 100 exchange centers ("swap centers"). The swap centers helped to create partial convertibility of the Chinese currency and were instrumental in creating incentives for China's exporters and in attracting foreign investment. However, the swap centers also caused trade conflicts with the U.S. and within GATT. …

Vagueness And Enforceability: Potential Problems Of The 1991 Thai Trademark Act, Sakda Thanitcul

Washington International Law Journal

In 1991, Thailand adopted a new Trademark Act, which, among other goals, increased protection of trademark and service mark agreements. However, enforcement of these new rules has not been clearly defined. In the first portion of this article, the author examines the new rules for trademark agreements in Thailand. These rules give extensive discretion to the Thai Registrar, yet have potential problems in enforcing standards such as quality control. The next section examines Thai public policy, and analyzes how other industrialized nations enforce their policies on trademarks. Finally, the article recommends that Thailand increase quality control, and more carefully define …

When Body Is Soul: The Proposed Japanese Bill On Organ Transplantations From Brain-Dead Donors, David Forster

Washington International Law Journal

Organ transplantations from brain-dead donors have been de facto prohibited in Japan since 1968. Buddhism, Shintoism, the Japanese concept of personhood, Japanese medical and hospital practices, the police, and the Patient's Rights Conference have all contributed to this situation. However, consensus has been growing in Japanese society and government that these operations should be legalized. The Diet began considering a proposed bill to this end on April 12, 1994. This comment argues that the bill ought to be passed. If passed, this bill will save the lives of many Japanese, it will end the difficulties Japanese currently encounter going overseas …

Thailand's Board Of Investment: Towards A More Appropriate And Effective Rural Investment Promotion Policy, Michael L. Shain

Washington International Law Journal

This Comment analyzes the role of Thailand's Board of Investment in the Thai Government's policy of decentralizing its economy. The Board of Investment is the administrative agency authorized to promote industrial development through the use of investment incentives. In response to the decentralization policy, the Board has created new categories of investment and a new set of upgraded incentives designed to encourage industrial investment in the country's rural provinces. The potential effectiveness of the Board's role, however, is limited. Recent changes in Thailand's tax and trade policy have seriously diminished the value of the Board's fiscal incentives, the backbone of …

The Environmental Laws And Policies Of Taiwan: A Comparative Law Perspective, Dennis Te-Chung Tang

Washington International Law Journal

This Article discusses the development of environmental regulation and preservation in Taiwan in light of United States environmental law. The Article begins with a discussion of how few measures have been enacted to protect the Taiwanese environment. It then illuminates some of the problems with the Taiwanese environmental regulations that do exist. According to the author, some of these problems include: ambiguous and conflicting goals enunciated in the legislation; political pressures on the authorities influencing environmental policies; poor enforcement mechanisms; a legislative bias in favor of regulating new sources of pollution and against enforcing regulations in the case of old …

Environmental Impact Assessments For Major Construction Projects In Taiwan: Problems And Solutions, Ming-Shen Wang, Gow-Liang Huang

Washington International Law Journal

Taiwan's environmental impact assessment (EIA) process offers little opportunity for genuine public participation, lacks systematic decision-making procedures, and inadequately evaluates and communicates perceptions of risk. This article examines EIA models emphasizing public participation, as well as contemporary theories of conflict management and risk communication, in terms of their potential application towards a restructuring of Taiwan's EIA process.

The Current Status Of Environmental Protection In Taiwan, Lung-Sheng Chang

Washington International Law Journal

Presented by the author as the Keynote Speech of the ROC/US Environmental Law and Management Conference, this piece outlines the formal approaches to environmental control being taken by the Republic of China. It presents in sequence the objectives, strategies, principles, current measures and future emphases of environmental protection efforts—all of which are applicable in varying degrees to government, private enterprise, and the general public. This piece, in presenting an administrative perspective, establishes a context for the analytical articles in this issue.

A Comparative Study Of The Formation And Development Of Air & Water Pollution Control Laws In Taiwan And Japan, Chao-Chan Cheng

Washington International Law Journal

Taiwan and Japan have faced similar environmental problems at comparable stages in their economic development, and have passed through similar stages in the development of their systems of environmental law. Three phases in the development of environmental law making are distinguished: preparatory, formative and developed. This article compares the relative progress of Taiwan and Japan through these stages, and suggests that Taiwan may benefit by studying Japan's analogous prior experiences with pollution prevention and environmental law.

The Development Of China's Environmental Diplomacy, Cai Shouqiu, Mark Voigts

Washington International Law Journal

Over the past decade, activities in the area of international environmental diplomacy have increased. China in particular has increased its efforts to help the global environmental situation, in conjunction with its role as a leader among the rest of the developing world. This essay examines China's historical environmental situation, and presents some of the factors that have influenced, and will continue to motivate, China's environmental decision making.

Recent Developments In Copyright Protection For Computer Software In The United States And Japan, Yutaka Nakamura

Washington International Law Journal

Many current legal issues pertaining to copyright of computer software involve defining the scope of protection of non-literal expression, such as "user interface" and "look and feel," in contrast to literal expression, such as "source code," to which ownership may be more clearly attributed. Superficially, it appears that the case law pertaining to non-literal expression is developing differently in Japan and the United States. This comment demonstrates that, however, while Japanese and U.S. courts have been applying formally different analytical criteria, the decisions of both have been similar in seeking equity-oriented solutions.

Indigenous People: An American Perspective On The Case For Entrenchment Of Maori Rights In New Zealand Law, Jeanette Jameson

Washington International Law Journal

The 1840 Treaty of Waitangi, signed by representatives of the British Crown and Maori Tribes, created a partnership that allowed colonization of New Zealand while protecting the Maori culture. The Treaty was declared a "nullity" in an 1877 court decision, and Maori rights under the Treaty have yet to be fully realized. Since the beginning of the 1970s, the New Zealand government has increasingly recognized the Maori culture. This Comment explores the history of the relationship between the Maori people and the New Zealand government. It analyzes current government policy on Maori issues. Fimally, it advocates for legislative entrenchment of …

The Korean Reconciliation Treaty And The German Basic Treaty: Comparable Foundations For Unification?, Derek J. Vanderwood

Washington International Law Journal

With the end of the Cold War, the North-South Korean relationship has been the focus of increasing attention in the international community. In 1991, after years of tense and hostile relations, the two states adopted the Korean Reconciliation Treaty. To assess the prospects for successful reunification of the two Koreas through the Treaty, this comment compares it with the German Basic Treaty of 1984, which promotes similar goals of reunification of divided states. The comparison shows that the German Treaty has been more successful in facilitating unification, due largely to its relative flexibility in implementation. This comment proposes that the …

Japanese Official Development Assistance And Energy Efficiency Projects, John Briggs

Washington International Law Journal

This comment examines the likelihood that the Japanese government will promote investments in energy efficiency programs in the developing world with funding from its Official Development Assistance (ODA). The Japanese Prime Minister has stated that Japan will support the promotion of sustainable development in the developing world, primarily through disbursements of its ODA funds. The need to promote investments in energy efficiency projects in the developing world is widely accepted by proponents of sustainable development. However, the likelihood that Japan will replace its current ODA energy program, which targets investments in energy generation, with a program that promotes investments in …

The Application Of The International Covenant On Civil And Political Rights To Hong Kong, Geping Rao

Washington International Law Journal

As a dependency of the United Kingdom, Hong Kong is ineligible to ratify international agreements such as the International Covenant on Civil and Political Rights. The United Kingdom ratified the ICCPR and in so doing extended it to Hong Kong, with certain reservations. Full implementation of the ICCPR in Hong Kong requires that it be incorporated into domestic law, however. That was accomplished in 1991 with the passage of the Hong Kong Bill of Rights. This Article discusses the incorporation of the ICCPR into Hong Kong law via the Hong Kong Bill of Rights and the Basic Law, and proposes …

Introduction To The Financial System And Securities & Exchange System Reform Act In Japan, Hiroshi Naka, Akio Nakamura, Atsushi Yamashita, Scott Siegler

Washington International Law Journal

This translation of an original Japanese language work, by Hiroshi Naka and Akio Nakamura, both of the Japanese Ministry of Finance, details the reforms of Japan's financial and securities & exchange system made under the recently enacted System Reform Act. The major reforms under the Act include: (1) altering the "Glass Steagall" rule (the separation of securities business and banking business) in Japan so that banks and securities companies can engage in each other's business through their subsidiaries; (2) extending securities regulations to some new types of structured finance; (3) amending public offering provisions and providing new articles for private …

Juduicial Power & Illusion: The Republic Of China's Council Of Grand Justices And Constitutional Interpretation, F. Fraser Mendel

Washington International Law Journal

The Republic of China underwent a rapid political transformation from an authoritarian nation to a democratic state which required change at every level of the government. The ROC's Council of Grand Justices has contributed to this period of reform through a number of constitutional interpretations which have resulted in greater individual liberties and further restrictions on government actions. This has been accomplished even though the Council operates against substantive and procedural limitations on its powers. A review of these Council interpretations from the past decade reveals that the Council has made steady inroads towards fulfilling its role as the supreme …

Thailand's State Enterprise Labor Relations Act: Denying Public Employees The Right Of Association And The Right To Organize And Bargain Collectively, Kelly A. Doelman

Washington International Law Journal

On April 15, 1991, Thailand's new legislative body enacted the State Enterprise Labor Relations Act, removing public employees from the dominion of the Labor Relations Act and dissolving the existing public labor unions. This Act has had a crippling effect on the entire Thai labor movement, which historically relied on the leadership and influence of public unions to promote private industry worker interests. This Comment argues that the State Enterprise Labor Relations Act contains many provisions which violate internationally accepted labor standards, specifically the right of association and the right to organize and bargain collectively. This Comment further asserts that …

Lessons From A Changing Japan, John Owen Haley

Washington International Law Journal

As suggested by the title, these comments center on three propositions: that Japan is changing; that somehow Japan in the process of such change has something to teach us; and finally, that we have something to learn from Japan. Living in Japan over the past six months—the longest period during which I have continuously lived in Japan since the early 1970's—I have been startled by the extent of intellectual and material changes. Although some may belittle the Japanese slogan kokusaika, I am deeply impressed by the profound "internationalization" of Japanese attitudes and understanding. As goods, services, and ideas flow …

"Comfort Women" From Korea: Japan's World War Ii Sex Slaves And The Legitimacy Of Their Claims For Reparations, Yvonne Park Hsu

Washington International Law Journal

During World War II, Japan forced 100,000 to 200,000 women from all over Asia into prostitution to satisfy the sexual cravings of Japanese soldiers. These women thus forced into prostitution were euphemistically called "comfort women". In December 1991, three former Korean comfort women filed suit in the Tokyo District Court, seeking damages for their sufferings. From both legal and moral perspectives, Japan needs to make reparations for violations of these women's fundamental human rights. By meeting the obligations arising from its past abuses of human rights, Japan will take a significant step toward preventing its militant past from re-occurring, fostering …

Chinese Methods For Settling Economic Disputes Concerning Foreigners And Their Legal Bases, Xiao Yongzhen, Godfrey Lam, Neil Meyers

Washington International Law Journal

This translation of an original Chinese language work by Xiao Yongzhen discusses the legal authority Chinese courts rely on in addressing economic disputes arising from foreign investment and joint-venture agreements in the People's Republic of China. The translation details specific legal mechanisms used in China, as well as distinct Chinese legislation and practices relied upon to amicably resolve contractual disputes between private parties involving foreign interests in China. Translators' Introductory Note: The style of Chinese law review articles differs somewhat from that of American law reviews; therefore this translation should be read with those differences in mind. Chinese law review …

Special 301: An Effective Tool Against Thailand's Intellectual Property Violations, Preeti Sinha

Washington International Law Journal

Special 301 of the 1988 Omnibus Trade and Competitiveness Act grants the United States Trade Representative the authority to target countries that do not adequately protect intellectual property rights. The USTR has been investigating and negotiating with several countries, including Thailand, in an effort to improve intellectual property protections for American products. As a result, Thailand has instituted noteworthy changes in its copyright and patent laws. This Comment recommends that the USTR continue to negotiate with Thailand, and that the USTR continue to exert pressure on Thailand. This Comment also suggests that because Thailand has taken steps to improve protection …

The Banking And Securities Scandals And Fundamental Theories Of Commercial Jurisprudence, Seiji Tanaka, Yutaka Nakamura

Washington International Law Journal

The recent Japanese banking and securities scandals are among the most serious events that the Japanese business community has ever experienced. This article, written by Professor Seiji Tanaka, and translated by Yutaka Nakamura, analyzes these events applying positive laws from Professor Tanaka's standpoint, emphasizing the social responsibilities that corporations should have in Japanese society. The article relies on the basic purposes and provisions of the Japanese Commercial and Civil Codes and establishes organic principles of social responsibility for Japanese corporations to follow. Finally, the article emphasizes that a high standard of conduct, based on these principles of social responsibility, is …

How The East Was Won: A Critique Of U.S. Tactics In Negotiating Patent Protection For Pharmaceuticals In Thailand, Michael Begg

Washington International Law Journal

In February 1992, Thailand amended its patent law to provide patent protection for drugs. The amendment resulted from pressure by the United States pharmaceutical industry and the United States Trade Representative; it was not a Thai internal policy decision. Bleak prospects in the U.S. drug market due to a climate of increasing restraints on drug prices have led the Pharmaceutical Manufacturers Association to push for patent protection for their products abroad. Consequently, the United States Trade Representative pressured Thailand to amend its Patent Act to include pharmaceuticals, threatening to use Section 337 of the Trade and Tariff Act of 1930 …