The last few decades have seen a global boom in urban agglomeration due to improved economic opportunities. In the early 1900s, only 10% of the world’s population lived in cities, compared to approximately 50% today. It is estimated that this will increase to 70% by 2050. Despite being major population hubs and dominant economic players, cities are noticeably absent from national constitutions. They are typically creatures of the federal or provincial government and depend on these political units for their functioning and existence. Because of this reality, it is argued that constitutionalism may become irrelevant to a large share of a countries population if cities are left unaddressed. Without constitutional standing and greater autonomy, it is believed that cities are unable to address issues such as income inequality, housing, population density, immigration, environment, etc. Their lack of autonomy and constitutional standing also makes them susceptible to corporate capture. In recent years, a commonly proposed response has been to overhaul the existing statist framework by emancipating cities and providing them with constitutional standing and greater autonomy. These suggestions have not been limited to academic circles but have also been the focus of political and social discussions in both Global South and Global North countries. While this may seem like a straightforward fix, very few examples exist to assist us in envisioning this alternative reality. Even in cases where some cities have constitutional standing and/or considerable autonomy, this was typically granted by federal or provincial governments to further specific economic-political agendas or administrative ease. In these cases, the federal or provincial government dictates the terms, not the constitution. None of these examples are centered on the constitutional recognition of cities as an autonomous or distinct government order. The statist system is still intact. Constitutionalism in Greater China is seen as a niche subfield by traditional constitutionalists and rarely enters broader global discussions. However, Greater China’s experience with the Special Administrative Regions (SARs) of the People’s Republic of China (PRC) – Hong Kong SAR (HKSAR) and Macao SAR (MSR) – and the ‘one country, two system’ principle defining their governance structure – has more to contribute to the emerging debate of cities’ constitutional autonomy than any other case study. Subsequently, this chapter studies the SARs intending to examine whether (1) constitutional standing and greater autonomy for cities translate into the outcomes hoped by advocates of the same (2) and if yes, whether a potential way to envision cities with constitutional standing and greater autonomy is through a ‘one country, two systems’ model.
{"title":"The Debate on Constitutional Standing and Greater Autonomy for Cities: Lessons from The Special Administrative Regions of Hong Kong and Macao","authors":"Amal Sethi","doi":"10.2139/ssrn.3947304","DOIUrl":"https://doi.org/10.2139/ssrn.3947304","url":null,"abstract":"The last few decades have seen a global boom in urban agglomeration due to improved economic opportunities. In the early 1900s, only 10% of the world’s population lived in cities, compared to approximately 50% today. It is estimated that this will increase to 70% by 2050. Despite being major population hubs and dominant economic players, cities are noticeably absent from national constitutions. They are typically creatures of the federal or provincial government and depend on these political units for their functioning and existence. Because of this reality, it is argued that constitutionalism may become irrelevant to a large share of a countries population if cities are left unaddressed. Without constitutional standing and greater autonomy, it is believed that cities are unable to address issues such as income inequality, housing, population density, immigration, environment, etc. Their lack of autonomy and constitutional standing also makes them susceptible to corporate capture. In recent years, a commonly proposed response has been to overhaul the existing statist framework by emancipating cities and providing them with constitutional standing and greater autonomy. These suggestions have not been limited to academic circles but have also been the focus of political and social discussions in both Global South and Global North countries. While this may seem like a straightforward fix, very few examples exist to assist us in envisioning this alternative reality. Even in cases where some cities have constitutional standing and/or considerable autonomy, this was typically granted by federal or provincial governments to further specific economic-political agendas or administrative ease. In these cases, the federal or provincial government dictates the terms, not the constitution. None of these examples are centered on the constitutional recognition of cities as an autonomous or distinct government order. The statist system is still intact. Constitutionalism in Greater China is seen as a niche subfield by traditional constitutionalists and rarely enters broader global discussions. However, Greater China’s experience with the Special Administrative Regions (SARs) of the People’s Republic of China (PRC) – Hong Kong SAR (HKSAR) and Macao SAR (MSR) – and the ‘one country, two system’ principle defining their governance structure – has more to contribute to the emerging debate of cities’ constitutional autonomy than any other case study. Subsequently, this chapter studies the SARs intending to examine whether (1) constitutional standing and greater autonomy for cities translate into the outcomes hoped by advocates of the same (2) and if yes, whether a potential way to envision cities with constitutional standing and greater autonomy is through a ‘one country, two systems’ model.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130766965","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper develops a new theoretical framework to analyze Chinese regulatory governance by considering the strategic interaction between four key players involved in the regulatory process: the top leadership, the regulators, the firms and the public. By focusing on China’s great reversal in regulating the platform economy, I argue that China’s volatile style of policymaking is deeply ingrained in its authoritarian governance, where power is centralized in the top leadership who also suffers from a chronic information deficit. This often leads to a policy control mechanism that fluctuates between very lax and very harsh enforcement. More specifically, I show how government support, firm lobbying and bureaucratic inertia together contributed to a lag in regulating online platforms. When a crisis loomed, the top leadership quickly mobilized all administrative resources and propaganda to initiate a law enforcement campaign against tech giants. However, without strong judicial oversight, aggressive agency interventions create the risk of over-enforcement and administrative abuse. Thus far, China’s reorientation of its policy control has significantly bolstered its regulatory capacity across various fronts including financial, antitrust and data regulation. By exerting greater oversight over platform governance, the government has pressured tech firms to transfer their wealth to their users and the public to combat income inequality. The government’s heavy-handed approach has also afforded it great leverage to nudge tech firms to prioritize on cutting-edge technologies, and to steer them away from foreign stock markets, thus reducing reliance on the West for both technologies and capital. Despite the campaign’s immediate impact, it remains to be seen whether it will bring about lasting changes, especially in light of the persistent lobbying from tech firms and the risk of regulatory capture. At the same time, the volatile policy swing has itself generated risks and uncertainties for both social welfare and global investment, which in turn could cause turmoil to domestic social and financial stability.
{"title":"Agility Over Stability: China’s Great Reversal in Regulating the Platform Economy","authors":"A. Zhang","doi":"10.2139/ssrn.3892642","DOIUrl":"https://doi.org/10.2139/ssrn.3892642","url":null,"abstract":"This paper develops a new theoretical framework to analyze Chinese regulatory governance by considering the strategic interaction between four key players involved in the regulatory process: the top leadership, the regulators, the firms and the public. By focusing on China’s great reversal in regulating the platform economy, I argue that China’s volatile style of policymaking is deeply ingrained in its authoritarian governance, where power is centralized in the top leadership who also suffers from a chronic information deficit. This often leads to a policy control mechanism that fluctuates between very lax and very harsh enforcement. More specifically, I show how government support, firm lobbying and bureaucratic inertia together contributed to a lag in regulating online platforms. When a crisis loomed, the top leadership quickly mobilized all administrative resources and propaganda to initiate a law enforcement campaign against tech giants. However, without strong judicial oversight, aggressive agency interventions create the risk of over-enforcement and administrative abuse. Thus far, China’s reorientation of its policy control has significantly bolstered its regulatory capacity across various fronts including financial, antitrust and data regulation. By exerting greater oversight over platform governance, the government has pressured tech firms to transfer their wealth to their users and the public to combat income inequality. The government’s heavy-handed approach has also afforded it great leverage to nudge tech firms to prioritize on cutting-edge technologies, and to steer them away from foreign stock markets, thus reducing reliance on the West for both technologies and capital. Despite the campaign’s immediate impact, it remains to be seen whether it will bring about lasting changes, especially in light of the persistent lobbying from tech firms and the risk of regulatory capture. At the same time, the volatile policy swing has itself generated risks and uncertainties for both social welfare and global investment, which in turn could cause turmoil to domestic social and financial stability.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125480933","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The systematic and well-planned coup d’état attempt orchestrated in the morning of February 1, 2021 in Myanmar poses an international law breach indication, specifically pertaining humanitarian law and international human rights law. This research aims to analyze the qualification of such phenomenon as international law issue and the plausible acts of the international community pertaining this phenomenon. The method utilized is normative-legal approach by qualitatively analyzing the compliance between the international legal regulation and the series of events occurs in Myanmar during the coup d'etat. The result reveals that the current phenomenon of Myanmar coup d’etat have been firmly considered as an international issue through the violation of the international humanitarian law as its pivotal point. In relation to the plausible acts, the launching of humanitarian intervention to stop the extreme human rights violation in Myanmar shall be considered. Furthermore, ASEAN shall take an immediate action through a collective measure by recalling the purposes and principles enshrined in the ASEAN charter.
{"title":"The Governance Crisis in Myanmar: An International Law Perspective and International Society Response Towards Myanmar 2021 Coup D’ Etat.","authors":"N. Al Mukarramah","doi":"10.2139/ssrn.3835402","DOIUrl":"https://doi.org/10.2139/ssrn.3835402","url":null,"abstract":"The systematic and well-planned coup d’état attempt orchestrated in the morning of February 1, 2021 in Myanmar poses an international law breach indication, specifically pertaining humanitarian law and international human rights law. This research aims to analyze the qualification of such phenomenon as international law issue and the plausible acts of the international community pertaining this phenomenon. The method utilized is normative-legal approach by qualitatively analyzing the compliance between the international legal regulation and the series of events occurs in Myanmar during the coup d'etat. The result reveals that the current phenomenon of Myanmar coup d’etat have been firmly considered as an international issue through the violation of the international humanitarian law as its pivotal point. In relation to the plausible acts, the launching of humanitarian intervention to stop the extreme human rights violation in Myanmar shall be considered. Furthermore, ASEAN shall take an immediate action through a collective measure by recalling the purposes and principles enshrined in the ASEAN charter.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114145384","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Vietnam, a ‘socialist market economy’ under the firm control of the Community Party, had from 2006-14 gradually developed a range of data privacy protections in its e-commerce and consumer laws, to the level of the OECD Guidelines (or APEC Privacy Framework). The 2016 Law on Cyber-Information Security (CISL) expanded existing protections into the single most detailed set of data privacy principles in a Vietnamese law, but with its scope limited to commercial processing and only in ‘cyberspace’, so it was not comprehensive. Vietnam is now proposing to enact a comprehensive data privacy law for the first time. a draft Decree on Personal Data Protection (‘Decree’) released for public consultation by the Ministry of Public Security (MPS). This article analyses this proposed law by comparison with international standards, and previous Vietnamese practice. The Decree includes many of the requirements of the EU Data Protection Directive 1995, including some limits on automated processing, data minimisation, sensitive data protections, export limits based on the law of the recipient country, and individual access to the courts. In addition, the influences of the GDPR are seen in the inclusion of genetic and biometric data in sensitive data, and fines based on business turnover. Going beyond the GDPR is the inclusion of geographical location data in sensitive data. An innovation is that the law creates a Personal Data Protection Committee (PDPC), located within the Ministry of Public Security (MPS). The scope of the law is comprehensive, stating that it ‘applies to agencies, organizations and individuals related to personal data’, with some exceptions. The scope of the law extends to anyone ‘doing business in Vietnam’, not only those located in Vietnam. ‘Sensitive’ data is given a very extensive definition, important because sensitive personal data must be registered with the PDPC, which is of concern to foreign businesses, including because of doubts that the PDPC will be able to process the volume of applications in the 20 days specified. The proposed Decree has detailed baseline data export requirements for the first time, the complexity of which are also of concern to foreign businesses. The PDPC’s largely discretionary powers over the approval of processing sensitive data, and over personal data exports, make the proposed Decree potentially onerous for foreign companies.
{"title":"Vietnam: Data Privacy in a Communist ASEAN State","authors":"G. Greenleaf","doi":"10.2139/ssrn.3874748","DOIUrl":"https://doi.org/10.2139/ssrn.3874748","url":null,"abstract":"Vietnam, a ‘socialist market economy’ under the firm control of the Community Party, had from 2006-14 gradually developed a range of data privacy protections in its e-commerce and consumer laws, to the level of the OECD Guidelines (or APEC Privacy Framework). The 2016 Law on Cyber-Information Security (CISL) expanded existing protections into the single most detailed set of data privacy principles in a Vietnamese law, but with its scope limited to commercial processing and only in ‘cyberspace’, so it was not comprehensive. Vietnam is now proposing to enact a comprehensive data privacy law for the first time. a draft Decree on Personal Data Protection (‘Decree’) released for public consultation by the Ministry of Public Security (MPS). This article analyses this proposed law by comparison with international standards, and previous Vietnamese practice. The Decree includes many of the requirements of the EU Data Protection Directive 1995, including some limits on automated processing, data minimisation, sensitive data protections, export limits based on the law of the recipient country, and individual access to the courts. In addition, the influences of the GDPR are seen in the inclusion of genetic and biometric data in sensitive data, and fines based on business turnover. Going beyond the GDPR is the inclusion of geographical location data in sensitive data. An innovation is that the law creates a Personal Data Protection Committee (PDPC), located within the Ministry of Public Security (MPS). The scope of the law is comprehensive, stating that it ‘applies to agencies, organizations and individuals related to personal data’, with some exceptions. The scope of the law extends to anyone ‘doing business in Vietnam’, not only those located in Vietnam. ‘Sensitive’ data is given a very extensive definition, important because sensitive personal data must be registered with the PDPC, which is of concern to foreign businesses, including because of doubts that the PDPC will be able to process the volume of applications in the 20 days specified. The proposed Decree has detailed baseline data export requirements for the first time, the complexity of which are also of concern to foreign businesses. The PDPC’s largely discretionary powers over the approval of processing sensitive data, and over personal data exports, make the proposed Decree potentially onerous for foreign companies.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122954150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We review the cartel penalty and leniency practices of the Competition Commission of India (CCI), in light of the law and economics literature on optimal penalties, as well as current practices in different jurisdictions. Our analysis reveals that although India’s Competition Act allows for a much harsher penalty than other jurisdictions in cartel cases, the actual practices followed by the CCI are often inconsistent and non-transparent, resulting in a large number of court cases and very low penalty recovery. This inconsistency also weakens the leniency programme adopted by the CCI in order to induce cartelists to come forward with evidence. In the majority of cases, penalties fall short of restitution and deterrence benchmarks suggested by some earlier literature. We conclude with some suggestions to improve India's penalty and leniency regime.
{"title":"India's Cartel Penalty Practices, Optimal Restitution and Deterrence","authors":"Aditya Bhattacharjea, Oindrila De","doi":"10.2139/ssrn.3855468","DOIUrl":"https://doi.org/10.2139/ssrn.3855468","url":null,"abstract":"We review the cartel penalty and leniency practices of the Competition Commission of India (CCI), in light of the law and economics literature on optimal penalties, as well as current practices in different jurisdictions. Our analysis reveals that although India’s Competition Act allows for a much harsher penalty than other jurisdictions in cartel cases, the actual practices followed by the CCI are often inconsistent and non-transparent, resulting in a large number of court cases and very low penalty recovery. This inconsistency also weakens the leniency programme adopted by the CCI in order to induce cartelists to come forward with evidence. In the majority of cases, penalties fall short of restitution and deterrence benchmarks suggested by some earlier literature. We conclude with some suggestions to improve India's penalty and leniency regime.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125598437","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explains the law and procedures relating to rights enjoyed by different classes of shareholders and variation of those rights, liabilities of members, special rights associated to preference shareholders, pre-emptive rights and the effect of share dilution. Discussion is based on the Companies Act 2016. The writing of this article employs the hermeneutics analysis of relevant legislation(s). It provides a quick and simplified reference for students and non-practitioner.
{"title":"Corporate Law of Malaysia: The Rights of Shareholders and Members in Malaysian Business Entities","authors":"M. Y. Ng, Chee Fei Chang","doi":"10.2139/ssrn.3797485","DOIUrl":"https://doi.org/10.2139/ssrn.3797485","url":null,"abstract":"This article explains the law and procedures relating to rights enjoyed by different classes of shareholders and variation of those rights, liabilities of members, special rights associated to preference shareholders, pre-emptive rights and the effect of share dilution. Discussion is based on the Companies Act 2016. The writing of this article employs the hermeneutics analysis of relevant legislation(s). It provides a quick and simplified reference for students and non-practitioner.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124761775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Imelda B. Deinla, R. Mendoza, A. Pizarro, Ray Paolo R. Santiago
In his 5th State of the Nation Address (SONA) last July 27, 2020, President Rodrigo Duterte called on Congress to swiftly pass the bill reinstating the death penalty, specifically for heinous drug-related crimes specified under the Comprehensive Drugs Act of 2002. Pro-death penalty lawmakers and advocates in the country have long argued that the death penalty will deter criminality. However, the literature suggests that there is still no clear and credible empirical evidence to back the argument that the death penalty is a crime deterrent. Furthermore, this paper examined the potential drivers of the growing death penalty support in the Philippines and the possible implications of reinstating the death penalty in the current state of the country’s justice system and economy.
{"title":"Death Penalty in the Philippines: Evidence on Economics and Efficacy","authors":"Imelda B. Deinla, R. Mendoza, A. Pizarro, Ray Paolo R. Santiago","doi":"10.2139/ssrn.3763271","DOIUrl":"https://doi.org/10.2139/ssrn.3763271","url":null,"abstract":"In his 5th State of the Nation Address (SONA) last July 27, 2020, President Rodrigo Duterte called on Congress to swiftly pass the bill reinstating the death penalty, specifically for heinous drug-related crimes specified under the Comprehensive Drugs Act of 2002. Pro-death penalty lawmakers and advocates in the country have long argued that the death penalty will deter criminality. However, the literature suggests that there is still no clear and credible empirical evidence to back the argument that the death penalty is a crime deterrent. Furthermore, this paper examined the potential drivers of the growing death penalty support in the Philippines and the possible implications of reinstating the death penalty in the current state of the country’s justice system and economy.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124080206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper describes the history of the academic theories on Trusts in Japan, focusing on how the theories have understood the fundamental construction of Trust. Ever since the enactment of the former Trust Act, the characteristics and essential elements of the act of creating a trust have been discussed by academic society. In the background to this unsettled debate may be the peculiar nature (or heterogeneity) of trust law in terms of the Japanese legal framework. As is already well known, most of the provisions of the Civil Code, which is the basic law of the Japanese private law system, trace their roots back to civil law jurisdictions such as Germany and France. On the other hand, the legislative history of trust law directly originated in the use system under the common law tradition. Thus, the Japanese trust system is sometimes viewed as a "heterogeneous mechanism just like oil floating on water," and in the history of interpretation of trust law, discussion about systematic consistency and integrity within the entire legal system, in other words, how the legal interpretation theory can mitigate the heterogeneity between the Civil Code provisions and trust system, has been considered as a very important issue. The provision of the definition of trusts, in particular, has been the key subject of this contentious debate. In this paper, I first discuss (1) " Theory of right in Personam " as the "Generally Accepted Theory " of Japanese trust law, and then (2) Shinomiya’s Theory," which develops his own "Substantial Legal Entity Theory". Then, while summarizing (3) "Development of Discussions after the Shinomiya’s Theory", I will finally describe some (4) Personal View.
{"title":"Trust Law Theory in Japan - Controversy as to Fundamental Construction of Trust","authors":"Hiroyuki Watanabe","doi":"10.2139/ssrn.3753212","DOIUrl":"https://doi.org/10.2139/ssrn.3753212","url":null,"abstract":"This paper describes the history of the academic theories on Trusts in Japan, focusing on how the theories have understood the fundamental construction of Trust. \u0000 \u0000Ever since the enactment of the former Trust Act, the characteristics and essential elements of the act of creating a trust have been discussed by academic society. In the background to this unsettled debate may be the peculiar nature (or heterogeneity) of trust law in terms of the Japanese legal framework. As is already well known, most of the provisions of the Civil Code, which is the basic law of the Japanese private law system, trace their roots back to civil law jurisdictions such as Germany and France. On the other hand, the legislative history of trust law directly originated in the use system under the common law tradition. Thus, the Japanese trust system is sometimes viewed as a \"heterogeneous mechanism just like oil floating on water,\" and in the history of interpretation of trust law, discussion about systematic consistency and integrity within the entire legal system, in other words, how the legal interpretation theory can mitigate the heterogeneity between the Civil Code provisions and trust system, has been considered as a very important issue. The provision of the definition of trusts, in particular, has been the key subject of this contentious debate. \u0000 \u0000In this paper, I first discuss (1) \" Theory of right in Personam \" as the \"Generally Accepted Theory \" of Japanese trust law, and then (2) Shinomiya’s Theory,\" which develops his own \"Substantial Legal Entity Theory\". Then, while summarizing (3) \"Development of Discussions after the Shinomiya’s Theory\", I will finally describe some (4) Personal View.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133619254","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Trust Act 2006 was the first full-fledged revision in 84 years since the enactment of the Former Trust Act, with no significant revision having been made during this period. This revision scaled up the Former Trust Act, which contained 75 Articles, into the one with as many as 271 Articles (excluding the clauses concerning charitable trusts ). In this respect, it is more like making a new statute rather than changing the existing one. The modern trust system was first introduced to Japan in the Meiji Era. Initially, due to the ambiguity of the definition of trust, unwholesome dealers sprouted up one after another under the name of trust business. In response to the growing need to enact a trust law in order to crack down on such dealers, the Former Trust Act was established as the basic law on trust. Due to such historical backdrop, the Former Trust Act was of extremely regulatory nature. Subsequently, trust became popular in Japan especially in the form of commercial trust where trust banks undertake trusts as trustees, and the total trust liabilities reached 701 trillion yen as of the end of September 2006 (Trust Companies Association of Japan). Despite such movements, the Trust Act had been maintained almost as it was, containing clauses that were not fit for the changing economic situation. For instance, while the major type of trust assumed at the time of the Former Trust Act was created to retain property, the correctly popular type of trust is the one to invest in securities and loans using the initial trust property . The former Act was unsuitable for the investment methods which were becoming more complex and international. It was also unable to respond to the increase of collective trusts created for multiple beneficiaries. In consideration of all of these problems, the revision law aimed to make the Trust Act befitting the economy and society of today, while keeping the balance with protection of beneficiaries, and to set up provisions on new types of trusts, including trusts with certificate of beneficial interest and limited liability trusts. The keyword to the revision law as a whole is increasing flexibility. This concept has been advocated for the Companies Act and other legislative measures as well. Flexibility is more emphasized for the trust system as compared to other legal systems, and the lawmakers considered that in order to extend this merit in trusts, the regulations on trust should also be made flexible. As the revision made various clauses more flexible, it somewhat seems to have modified the features of trusts that have conventionally been regarded as their intrinsic nature. The revision covered a wide range of matters, but it will be easier to understand its essence when viewing it from the perspective of moving from unification to diversification, that is to say, the revision was designed, with the emphasis on flexibility of trusts, to allow diversified methods of using trusts in a proper way.
{"title":"Trust Act 2006 in Japan ～Current Basic Act on Trusts in Japan","authors":"Hiroyuki Watanabe","doi":"10.2139/SSRN.3752250","DOIUrl":"https://doi.org/10.2139/SSRN.3752250","url":null,"abstract":"Trust Act 2006 was the first full-fledged revision in 84 years since the enactment of the Former Trust Act, with no significant revision having been made during this period. This revision scaled up the Former Trust Act, which contained 75 Articles, into the one with as many as 271 Articles (excluding the clauses concerning charitable trusts ). In this respect, it is more like making a new statute rather than changing the existing one. \u0000 \u0000The modern trust system was first introduced to Japan in the Meiji Era. Initially, due to the ambiguity of the definition of trust, unwholesome dealers sprouted up one after another under the name of trust business. In response to the growing need to enact a trust law in order to crack down on such dealers, the Former Trust Act was established as the basic law on trust. Due to such historical backdrop, the Former Trust Act was of extremely regulatory nature. \u0000 \u0000Subsequently, trust became popular in Japan especially in the form of commercial trust where trust banks undertake trusts as trustees, and the total trust liabilities reached 701 trillion yen as of the end of September 2006 (Trust Companies Association of Japan). Despite such movements, the Trust Act had been maintained almost as it was, containing clauses that were not fit for the changing economic situation. For instance, while the major type of trust assumed at the time of the Former Trust Act was created to retain property, the correctly popular type of trust is the one to invest in securities and loans using the initial trust property . \u0000 \u0000The former Act was unsuitable for the investment methods which were becoming more complex and international. It was also unable to respond to the increase of collective trusts created for multiple beneficiaries. In consideration of all of these problems, the revision law aimed to make the Trust Act befitting the economy and society of today, while keeping the balance with protection of beneficiaries, and to set up provisions on new types of trusts, including trusts with certificate of beneficial interest and limited liability trusts. \u0000 \u0000The keyword to the revision law as a whole is increasing flexibility. This concept has been advocated for the Companies Act and other legislative measures as well. Flexibility is more emphasized for the trust system as compared to other legal systems, and the lawmakers considered that in order to extend this merit in trusts, the regulations on trust should also be made flexible. As the revision made various clauses more flexible, it somewhat seems to have modified the features of trusts that have conventionally been regarded as their intrinsic nature. \u0000 \u0000The revision covered a wide range of matters, but it will be easier to understand its essence when viewing it from the perspective of moving from unification to diversification, that is to say, the revision was designed, with the emphasis on flexibility of trusts, to allow diversified methods of using trusts in a proper way.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127449187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Rafael Martin Consing III, Michael John Barsabal, Julian Thomas B. Alvarez, M. Mariasingham
This working paper explains how to derive indicators for a country’s wellness sector using the system of national accounts framework. It also provides estimates of these indicators for 10 countries in developing Asia across 2 time periods. Estimates include the wellness sector’s production and employment linkages with nonwellness sectors and potential losses in production and employment if the wellness sector were hypothetically extracted from each economy.
{"title":"The Wellness Economy: A Comprehensive System of National Accounts Approach","authors":"Rafael Martin Consing III, Michael John Barsabal, Julian Thomas B. Alvarez, M. Mariasingham","doi":"10.2139/ssrn.3785120","DOIUrl":"https://doi.org/10.2139/ssrn.3785120","url":null,"abstract":"This working paper explains how to derive indicators for a country’s wellness sector using the system of national accounts framework. It also provides estimates of these indicators for 10 countries in developing Asia across 2 time periods. Estimates include the wellness sector’s production and employment linkages with nonwellness sectors and potential losses in production and employment if the wellness sector were hypothetically extracted from each economy.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115929838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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