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Articles 211 - 240 of 568
Full-Text Articles in Comparative and Foreign Law
Why Did China Reform Its Death Penalty?, Kandis Scott
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
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 …
A Current Review Of Chinese Land-Use Law And Policy: A "Breakthrough" In Rural Reform?, Robin Dean, Tobias Damm-Luhr
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 …
Electronic Money And The Law: Legal Realities And Future Challenges, Nobuhiko Sugiura, Jean J. Luyat
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
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.
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
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
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
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
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
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
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
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
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
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
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
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 …
China's New Anti-Monopoly Law: A Perspective From The United States, Thomas R. Howell, Alan Wm. Wolff, Rachel Howe, Diane Oh
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
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 …
"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 …
The End Of The Viarsa Saga And The Legality Of Australia's Vessel Forefeiture Penalty For Illegal Fishing In Its Exclusive Economic Zone, Laurence Blakely
The End Of The Viarsa Saga And The Legality Of Australia's Vessel Forefeiture Penalty For Illegal Fishing In Its Exclusive Economic Zone, Laurence Blakely
Washington International Law Journal
The world’s fish stocks are suffering from over-utilization. The earth’s oceans are subject to exploitation by all nation states and very little preservation. Because of the nature of the international legal regime of the Law of the Sea, enforcement of what conservation and management measures exist is challenging. Boundaries, ephemeral on land, are even more so on water, making rights allocation and management particularly difficult. Nevertheless, as fish stocks continue to decrease and it becomes clearer that oceans require more effective management, coastal states have begun to undertake more significant enforcement procedures corresponding to their rights in their exclusive economic …
The Need For Effective Licensure Laws For Mid-Level Health Care Providers In Countries Facing Chronic Physician Shortages: A Case Study Of The Marshall Islands' Health Assistants, Jeffrey P. Lane
Washington International Law Journal
Facing a global physician shortage and high international emigration rates, developing countries are increasingly looking to mid-level health care providers to provide critical primary health care services. Mid-level providers have more training than nurses but less than full physicians and are typically authorized to prescribe medications and perform simple medical procedures. As the demand for health care providers continues to grow, mid-level providers are increasingly being asked to provide a broader array of clinical services. In response to this growing need, mid-level providers are increasingly practicing outside of their licensed scope of practice, which may both compromise patient safety and …
Protecting Egg Donors And Human Embryos—The Failure Of The South Korean Bioethics And Biosafety Act, Mukta Jhalani
Protecting Egg Donors And Human Embryos—The Failure Of The South Korean Bioethics And Biosafety Act, Mukta Jhalani
Washington International Law Journal
Human embryonic stem cells have the potential to treat many physical and neurological disorders due to their unique ability to transform into any type of human cell. The process of deriving stem cells from human embryos, however, raises important ethical and regulatory issues. Embryonic stem cell research requires a steady source of human eggs to create embryos that are destroyed during stem cell extraction. International declarations and guidelines protect the two most vulnerable participants of embryonic stem cell research: women who donate eggs for research purposes and human embryos that are destroyed in the research. In 2005, South Korea passed …
Korean Divorce Law On Claims For Property Division: Dividing Retirement Allowance In Divorce, Faye Y. Park
Korean Divorce Law On Claims For Property Division: Dividing Retirement Allowance In Divorce, Faye Y. Park
Washington International Law Journal
As South Koreans divorce closer to the retirement age, the issue of whether retirement allowance should be divided upon divorce has become more prevalent. The applicable law in the division of the retirement allowance in a divorce is Article 839-2 of the Civil Code. This article provides that property realized through the cooperation of both spouses shall be divided in divorce by agreement. The Korean courts have historically undervalued the contribution of spouses who provide housework by giving them less property in the division of acquired marital property. Retirement allowances pose problems because a spouse can contribute in acquiring them …
Japan And The Moneylenders—Activist Courts And Substantive Justice, Andrew M. Pardieck
Japan And The Moneylenders—Activist Courts And Substantive Justice, Andrew M. Pardieck
Washington International Law Journal
Problems with sub-prime loans roiled financial markets worldwide in 2007 and brought renewed attention to predatory lending practices by loan brokers in the United States. Questionable lending practices, however, plague consumer financial markets worldwide, including one of the largest, found in Japan. This Article addresses the Japanese response to systemic problems in its consumer finance market. Over the last forty years, the judiciary has led and the Diet followed. Most recently, in 2006, the Supreme Court handed down a series of decisions that turned the single most important earnings driver for the consumer finance industry into dead letter law. The …
As A Negative Right, Article 25 Can Have A Positive Effect Combating Japan's Poverty, Amelia S. Kegan
As A Negative Right, Article 25 Can Have A Positive Effect Combating Japan's Poverty, Amelia S. Kegan
Washington International Law Journal
Article 25 of the Showa Constitution guarantees everyone in Japan a minimum standard of “wholesome and cultured living.” Contrary to the force originally envisioned by the Constitution’s framers, the Supreme Court of Japan has interpreted the provision as merely a programmatic declaration that guides the legislature rather than as an enforceable right under which an individual may sue. As a result, individuals cannot seek relief from the judiciary for Article 25 violations. The Supreme Court should recognize Article 25 also as a negative, concrete right, allowing individuals to seek judicial relief when the government fails to appropriately apply laws intended …
Access To Justice For The Poor: The Singapore Judiciary At Work, Gary Chan Kok Yew
Access To Justice For The Poor: The Singapore Judiciary At Work, Gary Chan Kok Yew
Washington International Law Journal
This Article examines the concrete efforts and programs of the Singapore judiciary to maintain and enhance access to justice for the poor. This examination is undertaken via overlapping economic, procedural, and institutional approaches. The Article will examine three main contentions. First, that the Singapore judiciary’s concrete efforts in maintaining and promoting access to justice for the poor have been fairly comprehensive and pro-active. Second, that abstract constitutional discourse on the right of access to justice and the associated rights of legal representation and legal aid are virtually absent in Singapore. Thus, the judicial practice for enhancing access to justice for …