Abstract One of the prominent policy responses to COVID-19 by the Chinese government is a recent complete ban on trade and the consumption of wild animals for food use purposes. Despite some discussions and debates in media coverage, the policy has not obtained much scholarly discussion from a public policy perspective. This article aims to fill the research gap by examining the policy formation process of the complete ban. The study conducts a historical-comparative analysis of the three legislative attempts on the bushmeat ban in 2004, 2016, and 2020, applying the multiple streams framework (MSF). We identify six key explanatory factors contributing to the successful formulation of the strictest-ever bushmeat ban. Five corroborate with the problem, policy, and political streams respectively: (i) the existence of an exogenous zoonosis-related crisis as background (problem stream); (ii) the attention and support from the top-level political leaders (political stream); (iii) the national mood (political stream); (iv) proposals from both internal and external policy advisors and experts (policy stream); and (v) feasibility of the proposed solutions (policy stream). The sixth—the role of policy entrepreneurs—serves as a fundamental driving force in shaping and coupling the three streams.
{"title":"Failed It or Nailed It: A Historical-Comparative Analysis of Legislating Bushmeat Ban in China","authors":"Liuyang He, Hui Li","doi":"10.1093/cjcl/cxab012","DOIUrl":"https://doi.org/10.1093/cjcl/cxab012","url":null,"abstract":"Abstract One of the prominent policy responses to COVID-19 by the Chinese government is a recent complete ban on trade and the consumption of wild animals for food use purposes. Despite some discussions and debates in media coverage, the policy has not obtained much scholarly discussion from a public policy perspective. This article aims to fill the research gap by examining the policy formation process of the complete ban. The study conducts a historical-comparative analysis of the three legislative attempts on the bushmeat ban in 2004, 2016, and 2020, applying the multiple streams framework (MSF). We identify six key explanatory factors contributing to the successful formulation of the strictest-ever bushmeat ban. Five corroborate with the problem, policy, and political streams respectively: (i) the existence of an exogenous zoonosis-related crisis as background (problem stream); (ii) the attention and support from the top-level political leaders (political stream); (iii) the national mood (political stream); (iv) proposals from both internal and external policy advisors and experts (policy stream); and (v) feasibility of the proposed solutions (policy stream). The sixth—the role of policy entrepreneurs—serves as a fundamental driving force in shaping and coupling the three streams.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46803191","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}
Due process—the ‘soul’ of a modern constitution—was not seriously taken into account under purely socialist legal systems in general as well as in pre-2013 Vietnamese constitutions in particular. Since the 2013 Constitution, Vietnamese jurisprudence has incorporated the human rights-limitation principle (substantive due process) for the first time and strengthened the application of universal fair trial rights (procedural due process). This constitutional development is the result of the fact that, over the past two decades, the class-based perception of human rights has been increasingly less important and has been almost replaced by universalism. This article claims that, because of the influence of Soviet jurisprudence, the Vietnamese version of due process has been characterized by the fact that human rights could be arbitrarily trumped by public interests and that fair trial rights have been problematically limited to criminal proceedings and almost ignored in non-criminal procedures. This article analyses the importance of, and the challenges involved in, incorporating the human rights-limitation principle into the 2013 Constitution and argues for an extension of fair trial rights to all kinds of criminal, civil, administrative, and mixed procedures in keeping with global constitutionalism.
{"title":"A Quest for Due Process Doctrine in Vietnamese Law: From Soviet Legacy to Global Constitutionalism","authors":"D. Bui","doi":"10.1093/cjcl/cxab009","DOIUrl":"https://doi.org/10.1093/cjcl/cxab009","url":null,"abstract":"\u0000 Due process—the ‘soul’ of a modern constitution—was not seriously taken into account under purely socialist legal systems in general as well as in pre-2013 Vietnamese constitutions in particular. Since the 2013 Constitution, Vietnamese jurisprudence has incorporated the human rights-limitation principle (substantive due process) for the first time and strengthened the application of universal fair trial rights (procedural due process). This constitutional development is the result of the fact that, over the past two decades, the class-based perception of human rights has been increasingly less important and has been almost replaced by universalism. This article claims that, because of the influence of Soviet jurisprudence, the Vietnamese version of due process has been characterized by the fact that human rights could be arbitrarily trumped by public interests and that fair trial rights have been problematically limited to criminal proceedings and almost ignored in non-criminal procedures. This article analyses the importance of, and the challenges involved in, incorporating the human rights-limitation principle into the 2013 Constitution and argues for an extension of fair trial rights to all kinds of criminal, civil, administrative, and mixed procedures in keeping with global constitutionalism.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45982025","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}
Abstract The ongoing impact of COVID-19 on global economic growth is likely to result in a retreat from financial globalization, including restrictions on capital movements. This concern arises from the experience of short-term capital control policies being implemented by countries in past financial crisis. This trend, together with China’s long history of using capital controls, has further sparked fears in Hong Kong regarding the extent to which the capital control restrictions from Beijing could impact Hong Kong’s open financial policy on capital transfers. With this context, this article evaluates situations where concerns have been raised and seeks to ascertain whether Hong Kong could be legally liable for the implementation of capital controls in Beijing.
{"title":"Do Beijing’s Capital Controls Bind Hong Kong? Reality or Illusion","authors":"Jiangyuan Fu, B. Mercurio","doi":"10.1093/cjcl/cxab002","DOIUrl":"https://doi.org/10.1093/cjcl/cxab002","url":null,"abstract":"Abstract The ongoing impact of COVID-19 on global economic growth is likely to result in a retreat from financial globalization, including restrictions on capital movements. This concern arises from the experience of short-term capital control policies being implemented by countries in past financial crisis. This trend, together with China’s long history of using capital controls, has further sparked fears in Hong Kong regarding the extent to which the capital control restrictions from Beijing could impact Hong Kong’s open financial policy on capital transfers. With this context, this article evaluates situations where concerns have been raised and seeks to ascertain whether Hong Kong could be legally liable for the implementation of capital controls in Beijing.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49652261","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":"Weixia Gu, Dispute Resolution in China: Litigation, Arbitration, Mediation, and Their Interaction","authors":"Congyan Cai","doi":"10.1093/CJCL/CXAB003","DOIUrl":"https://doi.org/10.1093/CJCL/CXAB003","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48267615","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}
While China strongly opposes the US practice of ‘long-arm jurisdiction’, it has decided to build its own legal system of extraterritoriality. This paradox reflects the crossroads at which China finds itself currently. Being a country weaker than the sole global superpower, it needs to stand firmly against the American ‘legal bullyism’ by invoking the shield of territorial sovereignty. Yet, as an emerging world power, it is in China’s interest to establish a legal system of extraterritoriality to safeguard its own national interests that extend globally. This article has two aims. First, it provides a comprehensive overview of the current model of Chinese extraterritoriality. Second, it proposes four key planks that should support the emerging Chinese system of extraterritoriality such that it will be both distinct from the US system as well as being practically achievable in light of China’s role in the global stage, national interests, and current capacity and conditions.
{"title":"Extraterritoriality of Chinese Law: Myths, Realities and the Future","authors":"Zhengxin Huo, Man Yip","doi":"10.1093/CJCL/CXAB004","DOIUrl":"https://doi.org/10.1093/CJCL/CXAB004","url":null,"abstract":"\u0000 While China strongly opposes the US practice of ‘long-arm jurisdiction’, it has decided to build its own legal system of extraterritoriality. This paradox reflects the crossroads at which China finds itself currently. Being a country weaker than the sole global superpower, it needs to stand firmly against the American ‘legal bullyism’ by invoking the shield of territorial sovereignty. Yet, as an emerging world power, it is in China’s interest to establish a legal system of extraterritoriality to safeguard its own national interests that extend globally. This article has two aims. First, it provides a comprehensive overview of the current model of Chinese extraterritoriality. Second, it proposes four key planks that should support the emerging Chinese system of extraterritoriality such that it will be both distinct from the US system as well as being practically achievable in light of China’s role in the global stage, national interests, and current capacity and conditions.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXAB004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46305490","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}
China’s new Civil Code, adopted in May 2020, includes a Book on contract law that brought about major developments in this important area of law. A full translation of the Book is presented, with an introductory essay reviewing some of the most significant issues that have emerged in the decade-long drafting of the new law. Various unresolved controversies foreshadow further debates and reform of the law in the future.
{"title":"The New Contract Law in the Chinese Civil Code","authors":"Bing Ling","doi":"10.1093/CJCL/CXAA030","DOIUrl":"https://doi.org/10.1093/CJCL/CXAA030","url":null,"abstract":"\u0000 China’s new Civil Code, adopted in May 2020, includes a Book on contract law that brought about major developments in this important area of law. A full translation of the Book is presented, with an introductory essay reviewing some of the most significant issues that have emerged in the decade-long drafting of the new law. Various unresolved controversies foreshadow further debates and reform of the law in the future.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43109700","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":"Agree or Agree to Disagree: China–EU Comprehensive Agreement on Investment (CAI) Negotiation and the ISDS Reform","authors":"Xiaoyu Fan","doi":"10.1093/cjcl/cxaa003","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa003","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46705187","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}
Singapore’s unjust enrichment law may be described as a form of adoption with adaptation from English law, which is indicative of two phenomena: first, the idea of law as a travelling phenomenon and, second, the development of law as a circulation of ideas. In Singapore, unjust enrichment is now accepted as a distinct branch of the law of obligations alongside tort and contract, providing relief to a plaintiff who has transferred an enrichment to the defendant in circumstances where the plaintiff’s intent was vitiated. This vitiation of intent is expressed as an ‘unjust factor’. While certain ‘unjust factors’ are regarded as well established, Singapore’s jurisprudence has not confronted the difficult question of what are the proper considerations to consider before admitting new ‘unjust factors’. Hence, the unjust enrichment principle in Singapore may be described as positivist and weakly normative and operates as an organizing concept for pre-existing recognized ‘unjust factors’. Unlike civil law, unjust enrichment law in Singapore does not have a role to play when the enrichment is transferred where there is an absence of basis. This article also traces two constraints that limit the role of the law of unjust enrichment in other contexts—namely, the insistence that there must be a direct transfer of enrichment from the plaintiff to the defendant and that unjust enrichment claims may not operate where there is a valid contract conferring the enrichment. In terms of divergence, Singapore has charted its own course in terms of the role unjust enrichment law plays in the context of an illegal contract. Instead of relying on a range of considerations before allowing restitution, Singapore’s approach to restitution considers whether the claim would undermine the fundamental policy, be it statutory or of the common law, that rendered the contract in question void and unenforceable in the first place.
{"title":"The Role of the Law of Unjust Enrichment in Singapore","authors":"H. Tang","doi":"10.1093/CJCL/CXAA034","DOIUrl":"https://doi.org/10.1093/CJCL/CXAA034","url":null,"abstract":"\u0000 Singapore’s unjust enrichment law may be described as a form of adoption with adaptation from English law, which is indicative of two phenomena: first, the idea of law as a travelling phenomenon and, second, the development of law as a circulation of ideas. In Singapore, unjust enrichment is now accepted as a distinct branch of the law of obligations alongside tort and contract, providing relief to a plaintiff who has transferred an enrichment to the defendant in circumstances where the plaintiff’s intent was vitiated. This vitiation of intent is expressed as an ‘unjust factor’. While certain ‘unjust factors’ are regarded as well established, Singapore’s jurisprudence has not confronted the difficult question of what are the proper considerations to consider before admitting new ‘unjust factors’. Hence, the unjust enrichment principle in Singapore may be described as positivist and weakly normative and operates as an organizing concept for pre-existing recognized ‘unjust factors’. Unlike civil law, unjust enrichment law in Singapore does not have a role to play when the enrichment is transferred where there is an absence of basis. This article also traces two constraints that limit the role of the law of unjust enrichment in other contexts—namely, the insistence that there must be a direct transfer of enrichment from the plaintiff to the defendant and that unjust enrichment claims may not operate where there is a valid contract conferring the enrichment. In terms of divergence, Singapore has charted its own course in terms of the role unjust enrichment law plays in the context of an illegal contract. Instead of relying on a range of considerations before allowing restitution, Singapore’s approach to restitution considers whether the claim would undermine the fundamental policy, be it statutory or of the common law, that rendered the contract in question void and unenforceable in the first place.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXAA034","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45456623","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}
In China, to fight against COVID-19, a variety of high- and low-tech methods have been created and applied to find and monitor people confirmed or suspected to have COVID-19 and their close contacts. Such mass monitoring may have the effect of containing and managing the pandemic, but it has brought about prevalent concerns of privacy. Undoubtedly, China is confronted with fulfilling the task of public health surveillance while, at the same time, protecting personal privacy. However, there are three factors that have caused these balancing efforts to falter. The first factor is the lack of strong and solid legal foundations to authorize and control the surveillance while giving sufficient support for personal privacy. The second factor is the huge social mobilization that entails the involvement of a large number of different entities and individuals in the mass surveillance, for whom the general principles of privacy protection proposed by public authorities and academia may not be well understood and/or may be difficult to follow in practice. The third factor is the collectivist thinking and obedience to, and in many cases reverence for, the authority that is deeply entrenched in Chinese culture and easily overwhelms the individualism-oriented modern privacy culture. To get rid of these handicaps in a short time and, hence, to strengthen privacy would be an extravagant hope. However, a landmark piece of legislation on privacy and personal information protection and other supporting regulations in the near future are what we need most. In any event, the current surveillance should not be a ‘new normal’.
{"title":"The Stumbling Balance between Public Health and Privacy amid the Pandemic in China","authors":"Shen Kui","doi":"10.1093/CJCL/CXAA035","DOIUrl":"https://doi.org/10.1093/CJCL/CXAA035","url":null,"abstract":"\u0000 In China, to fight against COVID-19, a variety of high- and low-tech methods have been created and applied to find and monitor people confirmed or suspected to have COVID-19 and their close contacts. Such mass monitoring may have the effect of containing and managing the pandemic, but it has brought about prevalent concerns of privacy. Undoubtedly, China is confronted with fulfilling the task of public health surveillance while, at the same time, protecting personal privacy. However, there are three factors that have caused these balancing efforts to falter. The first factor is the lack of strong and solid legal foundations to authorize and control the surveillance while giving sufficient support for personal privacy. The second factor is the huge social mobilization that entails the involvement of a large number of different entities and individuals in the mass surveillance, for whom the general principles of privacy protection proposed by public authorities and academia may not be well understood and/or may be difficult to follow in practice. The third factor is the collectivist thinking and obedience to, and in many cases reverence for, the authority that is deeply entrenched in Chinese culture and easily overwhelms the individualism-oriented modern privacy culture. To get rid of these handicaps in a short time and, hence, to strengthen privacy would be an extravagant hope. However, a landmark piece of legislation on privacy and personal information protection and other supporting regulations in the near future are what we need most. In any event, the current surveillance should not be a ‘new normal’.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXAA035","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43316339","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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