{"title":"Regulating Religious Fraud in Taiwan and Hong Kong: A Comparative Study on the Convergences and Deviations in the Understanding of Religious Freedom","authors":"Jianlin Chen","doi":"10.1093/CJCL/CXZ002","DOIUrl":"https://doi.org/10.1093/CJCL/CXZ002","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXZ002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42652976","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}
Focusing on two recent decisions handed down by the highest authority in the United Kingdom and Australia, this article attempts to critically review the common law rule dealing with contractual penalties through a comparison with its 'functional equivalent' under Chinese law. In the above two decisions, the UK and Australian courts effectively tightened the test for a penalty clause by making it harder for a contracting party to escape from the provision of the contract. However, the decision to retain the penalty jurisdiction remains a controversial one, and the historical and comparative analysis offered by the UK Supreme Court to justify the retention is particularly tenuous. In this regard, a comparison with Chinese law, which bears diametrical differences from the common law in both systematic design and under-structure, helps to bring out the incoherency between rule and rationale under the common law. By tracing the different historical origins and paths of evolution of both the common law and Chinese rules, the article offers a full-fledged comparison that penetrates the surface of legal texts and challenges the long-held assumption that the penalty jurisdiction exercises a fairness control by reference to the time when the contract is made. It concludes that the true rationale of allowing judicial intervention in agreed damage clauses lies in the existence of a discretionary power to achieve remedial justice and that the common law penalty rule should be abolished given its inability to adapt to this rationale.
{"title":"Agreed Damages, the Penalty Rule, and Unfair Terms: An Anglo-Australian and Chinese Comparison","authors":"Roger Halson, Qiao Liu","doi":"10.1093/CJCL/CXZ003","DOIUrl":"https://doi.org/10.1093/CJCL/CXZ003","url":null,"abstract":"Focusing on two recent decisions handed down by the highest authority in the United Kingdom and Australia, this article attempts to critically review the common law rule dealing with contractual penalties through a comparison with its 'functional equivalent' under Chinese law. In the above two decisions, the UK and Australian courts effectively tightened the test for a penalty clause by making it harder for a contracting party to escape from the provision of the contract. However, the decision to retain the penalty jurisdiction remains a controversial one, and the historical and comparative analysis offered by the UK Supreme Court to justify the retention is particularly tenuous. In this regard, a comparison with Chinese law, which bears diametrical differences from the common law in both systematic design and under-structure, helps to bring out the incoherency between rule and rationale under the common law. By tracing the different historical origins and paths of evolution of both the common law and Chinese rules, the article offers a full-fledged comparison that penetrates the surface of legal texts and challenges the long-held assumption that the penalty jurisdiction exercises a fairness control by reference to the time when the contract is made. It concludes that the true rationale of allowing judicial intervention in agreed damage clauses lies in the existence of a discretionary power to achieve remedial justice and that the common law penalty rule should be abolished given its inability to adapt to this rationale.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXZ003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46769384","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 traditional approach in legal comparative research is doctrinal rule-based. A relatively recent breakthrough has been the use of econometric techniques in comparing the extent of success in different jurisdictions with respect to, for example, protecting shareholders. The meshing of legal research and econometrics is known as ‘leximetrics’ (Lele & Siems, 2007). One of the most prominent and widely cited use of leximetrics is the seminal study by La Porta and colleagues (1997, 1998 & 2000) on the correlation between shareholder protection and financial development. The study, though highly influential, has attracted various criticisms. Subsequent studies have sought to build on the study by coming up with improved research design. For example, using a panel dataset covering a range of developed and developing countries, researchers from the Cambridge Centre for Business Research have discovered that a significant upward movement in the level of shareholder protection was made by China between 1990 and 2013 (Armour et al., 2009; Siems, 2016). It has been suggested that between the period, China experienced the ‘biggest increase in shareholder protection’ amongst 30 countries studied, and China was amongst the top performers (along with France and Russia) in shareholder protection in 2013, performing even better than the UK and the US. At the same time, the World Bank’s (2017) Protecting Minority Investors Index, which forms part of its Doing Business Reports, has recently painted a rather opposite picture, in contrast to the positive assessment by the Centre for Business Research, by putting China in the 119th position out of 190 countries which indicates a very mediocre performance. This article seeks to address the question of whether and how the two studies, both employing leximetric techniques and examining an ostensibly similar issue, can point to discrepant results.
法律比较研究的传统方法是以理论为基础的。最近的一个突破是使用计量经济学技术来比较不同司法管辖区在保护股东方面的成功程度。法律研究和计量经济学的结合被称为“词汇计量学”（Lele&Siems，2007）。词汇计量学最突出和被广泛引用的应用之一是La Porta及其同事（1997、1998和2000）关于股东保护与金融发展之间相关性的开创性研究。这项研究虽然影响很大，却引来了各种各样的批评。随后的研究试图在研究的基础上提出改进的研究设计。例如，剑桥商业研究中心的研究人员使用覆盖一系列发达国家和发展中国家的面板数据集发现，1990年至2013年间，中国的股东保护水平显著上升（Armour et al.，2009；Siems，2016）。有人认为，在此期间，在所研究的30个国家中，中国经历了“股东保护的最大增长”，2013年，中国在股东保护方面表现最好（与法国和俄罗斯一起），表现甚至好于英国和美国，作为其《营商环境报告》的一部分，该报告最近描绘了一幅与商业研究中心的积极评估相反的画面，将中国列为190个国家中的第119位，这表明中国的表现非常平庸。这篇文章试图解决这样一个问题，即这两项研究，都采用了词汇测量技术，并考察了一个表面上相似的问题，是否以及如何能够指出不一致的结果。
{"title":"Shareholder Protection in China from a Numerical Comparative Law Perspective","authors":"H. Yeung, F. Huang","doi":"10.1093/CJCL/CXZ001","DOIUrl":"https://doi.org/10.1093/CJCL/CXZ001","url":null,"abstract":"The traditional approach in legal comparative research is doctrinal rule-based. A relatively recent breakthrough has been the use of econometric techniques in comparing the extent of success in different jurisdictions with respect to, for example, protecting shareholders. The meshing of legal research and econometrics is known as ‘leximetrics’ (Lele & Siems, 2007). One of the most prominent and widely cited use of leximetrics is the seminal study by La Porta and colleagues (1997, 1998 & 2000) on the correlation between shareholder protection and financial development. The study, though highly influential, has attracted various criticisms. Subsequent studies have sought to build on the study by coming up with improved research design. For example, using a panel dataset covering a range of developed and developing countries, researchers from the Cambridge Centre for Business Research have discovered that a significant upward movement in the level of shareholder protection was made by China between 1990 and 2013 (Armour et al., 2009; Siems, 2016). It has been suggested that between the period, China experienced the ‘biggest increase in shareholder protection’ amongst 30 countries studied, and China was amongst the top performers (along with France and Russia) in shareholder protection in 2013, performing even better than the UK and the US. At the same time, the World Bank’s (2017) Protecting Minority Investors Index, which forms part of its Doing Business Reports, has recently painted a rather opposite picture, in contrast to the positive assessment by the Centre for Business Research, by putting China in the 119th position out of 190 countries which indicates a very mediocre performance. This article seeks to address the question of whether and how the two studies, both employing leximetric techniques and examining an ostensibly similar issue, can point to discrepant results.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXZ001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41304437","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 notion of ‘consumer’ in Article 2 of the People’s Republic of China (PRC)’s Consumer Protection Law has been subject to criticism as it is vague, can be difficult to apply to real life situations, and is also at odds with the notion of a ‘consumer’ found in other jurisdictions around the world. This article will discuss the Chinese legislative definition of a ‘consumer’ from a comparative perspective before considering how this notion has been applied by the courts, by analysing several Guiding Cases issued by China’s Supreme People’s Court (SPC) and judgments in which the Guiding Cases have been subsequently applied. The article will then consider the delicate balance that the courts in China are attempting to strike between encouraging consumer claimants to pursue fraudulent traders and yet discouraging consumers from exploiting the punitive damages provisions of the PRC Consumer Protection Law. Thus, this detailed analysis of the legal notion of a ‘consumer’ in China offers a unique and powerful insight into the wider role of consumers within the Chinese legal system.
{"title":"Analysing the Notion of ‘Consumer’ in China’s Consumer Protection Law","authors":"Kristie Thomas","doi":"10.1093/CJCL/CXY010","DOIUrl":"https://doi.org/10.1093/CJCL/CXY010","url":null,"abstract":"The notion of ‘consumer’ in Article 2 of the People’s Republic of China (PRC)’s Consumer Protection Law has been subject to criticism as it is vague, can be difficult to apply to real life situations, and is also at odds with the notion of a ‘consumer’ found in other jurisdictions around the world. This article will discuss the Chinese legislative definition of a ‘consumer’ from a comparative perspective before considering how this notion has been applied by the courts, by analysing several Guiding Cases issued by China’s Supreme People’s Court (SPC) and judgments in which the Guiding Cases have been subsequently applied. The article will then consider the delicate balance that the courts in China are attempting to strike between encouraging consumer claimants to pursue fraudulent traders and yet discouraging consumers from exploiting the punitive damages provisions of the PRC Consumer Protection Law. Thus, this detailed analysis of the legal notion of a ‘consumer’ in China offers a unique and powerful insight into the wider role of consumers within the Chinese legal system.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXY010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43293006","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}
{"title":"The National Security Exception in US-China FDI and Trade: Lessons from Delaware Corporate Law","authors":"J. Slawotsky","doi":"10.1093/CJCL/CXY012","DOIUrl":"https://doi.org/10.1093/CJCL/CXY012","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXY012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47867741","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}
{"title":"Comparing Chinese Law … But with Which Legal Systems?","authors":"Lutz-Christian Wolff","doi":"10.1093/CJCL/CXY011","DOIUrl":"https://doi.org/10.1093/CJCL/CXY011","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45611030","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}
{"title":"Developing Legal System, Legal Transplants, and Path Dependence: Reflections on the Rule of Law","authors":"J. Husa","doi":"10.1093/CJCL/CXY008","DOIUrl":"https://doi.org/10.1093/CJCL/CXY008","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXY008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44249124","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}
{"title":"Comparative Law and Legal Culture: Placing Vicarious Liability in Comparative Perspective","authors":"P. Giliker","doi":"10.1093/CJCL/CXY007","DOIUrl":"https://doi.org/10.1093/CJCL/CXY007","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXY007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42489290","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}
{"title":"Rostam J. Neuwirth, Alexandr Svetlicinii and Denis De Castro Halis, eds., The BRICS-Lawyers’ Guide to Global Cooperation","authors":"M. Durovic","doi":"10.1093/CJCL/CXY006","DOIUrl":"https://doi.org/10.1093/CJCL/CXY006","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXY006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48201701","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}
{"title":"S.I. Strong, Katia Fach Gómez and Laura Carballo Piñeiro, Comparative Law for Spanish–English Speaking Lawyers, Legal Cultures, Legal Terms and Legal Practices (Derecho comparado para abogados anglo- e hispanoparlantes, Culturas jurídicas, términos jurídicos y prácticas jurídicas)","authors":"A. M. Steingruber","doi":"10.1093/CJCL/CXY005","DOIUrl":"https://doi.org/10.1093/CJCL/CXY005","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXY005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43520064","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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