Alec Stone Sweet et al on Breaching the Taboo? Constitutional Dimensions of the New Chinese Civil Code (Asian Journal of Comparative Law)

 

"Breaching the Taboo? Constitutional Dimensions of the New Chinese Civil Code Asian Journal of Comparative Law"
Alec Stone Sweet, Chong Bu and Ding Zhuo
Asian Journal of Comparative Law

Published online: 25 May 2023

Abstract: Chinese elites have celebrated its new Civil Code (2021) as the most important statute in the nation's history, and the ‘cornerstone’ of its turn toward ‘rule of law’. The Code expressly binds all persons, as well as public officials, and is judicially enforceable. The statute enshrines rights to dignity, equality, personal liberty, property, and privacy, among others, and codifies duties to protect the environment and to evolve effective means to combat sexual harassment. Echoing the German Code, the statute also contains ‘general clauses’ that enable the courts to restrict enumerated rights and entitlements for reasons of ‘good morals’, ‘public order’, and the rights of others. While constituting an act of massive delegation to the courts, judges remain prohibited from directly enforcing the PRC's Constitution. The article explores the relationship between the Code and Constitution, through a comparative analysis of: (i) the process of ‘constitutionalising’ the private law around the globe; (ii) the scholarly discourse on the ‘horizontal effect’ of rights in China; (iii) the structure of the Code itself; and (iv) the development of ‘political’ control mechanisms, to be deployed by the Communist Party of China and organs of the state to constrain how judges use their interpretive powers.

Albert Chen on The Evolution of Modern Chinese Nationality Law: A Historical Perspective (China Review)

"The Evolution of Modern Chinese Nationality Law: A Historical Perspective"
Albert Chen
China Review

Published online: 19 May 2023

Abstract: The legal concept of nationality was a Western import into China in the 19th century. The modern notion of nationality was a product of modern public international law and the domestic constitutional laws of Western states. In 1909, China under the Qing Dynasty enacted its first nationality law. After the Republic of China was founded, it enacted in 1912 a nationality law which was largely the same as the 1909 law. This law was slightly amended in 1914. After the Chinese Nationalist Party (Kuomintang) came into power, a new nationality law was enacted in 1929. This law is still largely in force in Taiwan today. The People's Republic of China only adopted its first nationality law in 1980. This law is still in force today. This article will trace the evolution of modern Chinese nationality law by examining the laws mentioned above. It will seek to understand the evolving Chinese nationality law in the light of its changing political and social contexts and the international environment in which China found itself.

Hui Jing on Political Influence in the Regulation of Chinese Charitable Trusts (Canadian Journal of Law and Society)

"Political Influence in the Regulation of Chinese Charitable Trusts"
Hui Jing
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société

Published online on 26 January 2023

Abstract: With the 2016 Charity Law, Chinese legislators created a public-private hybrid model for the governance of charitable trusts. By endowing private actors with greater rights in the creation and management of charitable trusts, this hybrid model demonstrates the State’s intention of changing the functioning of the charitable trust sector from complete dependence on the State to a partnership. However, embedded in China’s particular institutional environment, the partnership relationship still bears the mark of strict government control, which is secured by granting extensive powers to regulators. This article analyzes the newly established regulatory framework for charitable trusts and outlines how regulators exercise their power in practice. The findings show that the tradition of regulators being subject to intense administrative pressures remains unchanged and that political concerns permeate every aspect of the regulation of charitable trusts.

Roda Mushkat on China's Territorial Disputes: The Ongoing Quest for a Viable Explanatory Framework (Willamette J Int'l L & Dis Resl'n)

"China's Territorial Disputes: The Ongoing Quest for a Viable Explanatory Framework"

Roda Mushkat 

27 Willamette J Int'l L & Dispute Resolution 103-168

Published in 2020 

Abstract: Chinese post-revolutionary history, including the four decade-long reform era, has entailed an array of twists and turns with far-reaching implications for the Asia-Pacific region and world order. Numerous and intense border conflicts have been an integral part of this intricate dynamic. They have attracted a fair amount of, albeit arguably insufficient, attention on the part of international legal scholars and social scientists. The former have exhibited notable breadth and the latter commendable depth in addressing the subject. The analytical shortcomings manifesting themselves, however, have not been rectified. Moreover, the quality of output on the international law side of the divide has deteriorated alter 2010 and social scientists have failed to maintain impetus beyond that point in the cycle. Consequently, the marked discontinuities, a conceptually intriguing pattern, between the pre-2010 phase and the past decade have not been adequately delineated and theoretically exploited. The experience suggests that the challenges which manifold boundary conflicts pose, in this area and elsewhere, call for closer interdisciplinary collaboration and greater paradigmatic versatility.

Amanda Whitfort Speaks at the 11th Asia for Animals Symposium in Dalian, China

"Asia for Animals: China conference focuses on using laws creatively to protect animals"

By Annette Gartland

Changing Times

21 October 2019

The 11th Asia for Animals (AfA) symposium, which has just taken place in Dalian, China, was focused on how laws can be used creatively to protect nonhuman animals. Delegates heard presentations from lawyers, academics, and activists from Asia, the United States, Australia, and Europe. More than four hundred people attended AfA 2019. They ranged from people working on the ground in rescue and rehabilitation organisations to animal advocates, veterinarians, scientists, government officials, scholars, and those working in education. The biennial event was this year co-organised by the Animals for Asia Coalition and the Vshine Animal Protection Association, based in Dalian.

     Speakers from China emphasised that local regulations in the country are very effective, but said that the Wildlife Protection Act was about using animals as resources rather than protection and welfare, and needed further revision. 

    National anti-cruelty legislation is urgently needed, speakers said. China’s wildlife protection legislation was revised in 2016 and now covers hunting, and selling wildlife items on the Internet. There are strong deterrent penalties and a new draft list of protected species, but the law allows commercial trade in protected wildlife and their products. Previous to the new draft, China’s wildlife conservation list had only been updated once since it was released in 1989. In 2003, the authorities upgraded the protection status for musk deer.

     Amanda Whitfort, who teaches Criminal Litigation and Animal Law at the University of Hong Kong’s Law Faculty, told AfA delegates about the use of public interest litigation in China in animal welfare cases. This, Whitfort says, has the capacity to impact very significantly on the way animal abuse is dealt with in China. China’s public interest litigation framework is extremely advanced, Whitfort says, and it is growing and gaining strength.“Since its formal adoption in 2012 Chinese environmental public interest litigation has gone beyond just recognition of individuals’ rights to sue for environmental harms and now it gives procuratorates the power to initiate actions against government officials for abuses of animals when they are combined with criminal prosecutions,” she told delegates... Click here to read the full text.