1. Crime Control in China's Pre-trial System: A Political Ideology? - Enshen Li
Vol.8 No.1 2013/3 download
Crime control has long been the primary goal of China’s pre-trial justice system. This paper examines the genuine nature of crime control in the context of Chinese legal culture by reviewing the historical formation of this rationale. The article argues that, by looking at the characteristics of the pre-trial process in the different periods since the founding of the People’s Republic of China, the pursuit of crime control in the administration of pre-trial justice in China is under the pressure of political needs. Although the Chinese Communist Party has so far made great efforts to promote China’s pre-trial process in terms of its proceduralism and legalization, the administration of justice at this stage has been continuously influenced by political considerations. The article concludes that although the implementation of rule of law is expected to ideologically revolutionize China’s pre-trial process, the deep-rooted political culture of overriding political stability over everything is unlikely to rule out the Party’s influence on the pre-trial practices.
2. The Legal Status of Pre-Contractual Liability:Contrasting Responses from German and English Law - Xiao-Yang Li
Vol.12 No.1 2017/3 download
China has begun a legislative process for its civil code. This thesis focuses on how to shape the pre-contractual liability in the forthcoming Chinese Civil Code from a comparative perspective. In devising the pre-contractual liability, the legislators of China confront a long-running controversy in Chinese Law- the legal status of pre-contractual liability. More precisely, whether the principle of good faith can directly open up liabilities in the pre-contractual phase and whether the pre-contractual liability is independent from the law of tort. The comparative study of this thesis builds a picture of the contrasting responses provided by German and English Law to the questions faced by Chinese legislators. The contrasts between two extraordinary systems serve as a basis of finding solutions to those controversies in Chinese Law. This article at the end offers a proposal to the codification of the Chinese Civil Code.
3. Norwegian Penal Norms: Political Consensus, Public Knowledge, Suitable Sentiment and a Hierarchy of Otherness - Su-Syan Jou
Vol.9 No.2 2014/9 download
The explanations for Norwegian penal exceptionalism (low level of punishment and enlightened prison conditions) are complex. All previous research explanations and discourses have their value, but are not definitive or conclusive. This paper draws attention to the control mechanisms underlying social reactions to crime and punishment: it is argued that to understand such reactions one needs to consider crime types, public knowledge and socially desirable sentiments, together with a political tradition of consensus, with associated institutional structures. However, a possible discontinuity in these reactions is evident in the challenge posed by “others” and the associated hierarchy of otherness. Norway and other Scandinavian countries provide a good geographical, political and cultural balance to the usual analyses of existing penal research based on the USA or England/Wales. My experience of this other culture (Norway) illustrates that no country has a perfect penal system, but every country, however small, can offer an alternative vision. National cultures of punishment are ‘local’ and embedded in the context of history, social structures as well as human actions; but this only increases the need for genuine comparative understanding.
4. Saying is One Thing; Doing is Another? Analyzing the Chinese Nonprofit Organization Model in Investor Protection through the Taiwanese Experience - Guan-Wei Chao
Vol.13 No.1 2018/3 download
As securities fraud enforcement can be divided into two major categories: (1) public enforcement conducted by administrative agencies, and (2) private enforcement in the form of litigations initiated by defrauded investors, however, this division cannot be viewed as black and white, but rather always within the areas of gray. For example, Taiwan allows a government-sanctioned nonprofit organization serving as a pro bono law firm to initiate securities class actions on behalf of aggrieved shareholders (the Taiwanese NPO model). By virtue of this NPO model, the government not only fills the gap of inactive private securities enforcement, but also retains substantial control over mass tort disputes. Perhaps due to its hybridity that encourages shareholder actions against securities fraud without risking China into a litigious society as the United States do, in April 2015, China’s National People Congress drafted the amendment to China’s Securities Law by reference to the Taiwanese NPO model (the Chinese NPO model), in which China promises to grant the civil society more enforcement power to protect shareholder interests. As a result, this Article examines whether the 2015 draft amendment could lead China into a hybrid securities enforcement mechanism as its stated purpose. However, by virtue of analyzing relevant provisions of the Chinese NPO model, this Article illustrates that the convergence of NPO models between Taiwan and China may not happen due to path-dependent factors, including political, economic, and cultural circumstance, specific to the Chinese NPO ecology. More importantly, the Chinese NPO model may also reveal China’s intention to use this NPO model as an excuse to eliminate the early emergence of the grassroots NPO’s participation in investor protection, and a guise to grant the government more control over private securities enforcement.
5. Rule of Law and the Criminal Justice Reform in Japan - Kazuko Ito
Vol.6 No.1 2011/3 download
An independent and impartial judiciary is fundamental requirement of rule of law. In this regard, Japanese criminal justice system has always been problematic and criticized as hopeless". The conviction rate in Japan is over 99%, and the statistics casts serious doubt of impartiality of the court, as well as show the problem of justice, in terms of defendants human rights and the fundamental principle of the `presumption of innocence. Indeed, serious structural problem in Japanese criminal justice system causes numerous human rights abuse in the custodial interrogations and serious wrongful convictions against innocent individuals.In response to several criticisms toward the Japanese judicial system, the Japanese government commenced a comprehensive judicial reform in 2000. As one of the reform projects, a bill was enacted in 2004 to introduce a quasi-jury system (the so-called `Saibanin system) and to revise the Code of Criminal Procedure. This new system has come into force in 2009. This is the first time since the end of the World War II 60 years ago for Japan to realize a system of citizens participation inthe court system.Although this new system has several progressive aspects, it cannot be evaluated as a victory in terms of fundamental human rights in the criminal procedure and the prevention of wrongful convictions. This paper describes the process of the reform and their subsequent impacts, as well as remained agenda for criminal justice reform in Japan from the perspective of rule of law.
6. Justice and Law in the Republic and Mencius - Chi-Shing Chen
Vol.12 No.2 2017/9 download
This article presents a sketch and a comparison of two perspectives of justice. I discuss Plato’s idea of justice in the Republic (section 2), and Mencius’ thinking on the same topic in Mencius (section 3). For Plato, justice leads to harmony and reason is the key element, especially for getting hold of the good, and for unifying the different parts of the soul successfully; likewise, the philosopher should rule the polis for the unification of the three classes of people in the polis. Mencius treats yi, the concept which is comparable to justice, similarly to Plato, namely as one’s proper relationship with others, except one’s parents who are not considered as others. For Mencius, Yi is shown in one’s lifelong commitment to act appropriately in all the situations one encounters in the world. Ren is shown in one’s love of others and guides one in a more important way than reason for one’s cultivation of yi. The ideas of law of the two philosophers are discussed next (section 4). The rule of law is instrumental for improving the virtue for the common people and is central to Plato’s account of the best constitution. However, for Mencius, law is not the most important norm. This difference is important not just for the two philosophers, but also for the two traditions, the Greek and the Chinese. I conclude the paper by summarizing key differences and how the two thoughts may be complementary to each other (section 5).