Tsinghua China Law Review
- Tsinghua Law School
- Publication date:
- No. 13-1, June 2020
- No. 12-1, December 2019
- No. 11-2, June 2019
- No. 11-1, December 2018
- No. 10-2, June 2018
- No. 10-1, December 2017
- No. 9-2, June 2017
- No. 9-1, December 2016
- No. 8-2, June 2016
- No. 8-1, December 2015
- No. 7-2, June 2015
- No. 7-1, December 2014
- No. 6-2, June 2014
- No. 6-1, December 2013
- No. 5-2, June 2013
- No. 5-1, December 2012
- No. 4-2, June 2012
- No. 4-1, December 2011
- No. 3-2, June 2011
- No. 3-1, December 2010
- Legal Realism And Chinese Law: Are Confucian Legal Realists, Too?
How should we understand, describe, and/or characterize classical Confucian legal thought (i.e., pre-Qin Confucianism, namely, the thought of Confucius and Mencius)? Some scholars have argued that classical Confucianism should be understood as a natural law theory. Others have argued that it should be understood as a Dworkinian coherence theory of law. Still others have maintained that classical Confucian legal thought should not be understood as a legal theory but rather as a moral theory emphasizing self-cultivation and harmony. In this paper, I argue that classical Confucian legal thought and approaches to adjudication are best understood as an (American) legal realist approach to law and adjudication. Primarily examining the legal thought of Confucius and Mencius, I hope to show that classical Confucian legal thought can be described as anti-formalistic and very much concerned with the nature of adjudication and how legal officials should decide cases. In many respects, classical Confucian legal thought and adjudicatory practices can also be understood as representing the ideal approach and reflection of adjudication as advocated by many of the leading American legal realists. Finally, this paper makes the following preliminary conclusions which are more macroscopic: First, by showing the similarities classical Confucian legal thought shares with American legal realism, I hope to show that there is nothing fundamentally uniquely “Sinic” about classical Confucian approaches to adjudication, which hopefully will bring Confucian legal thought more into dialogue with Western theories of law and adjudication. Second, American legal realism, which has experienced heavy criticism and even scorn by legal philosophers, actually has important applications even in non-American systems of law, and should be treated with more respect and seriousness by legal theorists. Third, many of the ideas and principles of American legal realism are not really novel; they can also be found in earlier legal traditions, such as the Confucian legal tradition
- China's Recent Civil Law Codification In The High-Tech Era: History, Innovations, And Key Takeaways
- Personal Information Protection Under Chinese Civil Code: A Newly Established Private Right In The Digital Era
- The Civil Code And The Private Law Protection Of Personal Information
- In The Context Of Chinese Constitutionalism And The Hong Kong Basic Law: Is 'Separation Of Powers' A Delusionary Product?
- A Statutory Business Judgment Rule For China's Company Law: Theoretical And Comparative Considerations
The conversion of China’s planned economy to a socialist market economy cleared the way for the emergence of enterprises in the sense of the Coasean theory of the firm. A centralized decision-maker coordinates the allocation of resources and the firm’s activities. He is vested with authority and responsible to the firm’s owners. The tension between authority and responsibility is balanced by the business judgment rule, a concept first established by U.S. Delaware courts. China has no statutory business judgment rule, and neither the English-speaking scholars nor the Chinese courts have yet established a uniform understanding of it. This paper proposes that China’s Company Law for joint stock limited companies has all the prerequisites needed for an adoption of the business judgment rule: It not only separates ownership and management but also grants a certain amount of authority to the companies’ directors and supervisors, who are required to perform their duties in due care, under good faith and in a loyal manner. This paper, after having assessed the feasibility of a legal transplant of the business judgment rule, thus argues that China’s Company Law should recognize the value of authority granted to the board of directors and the board of supervisors and implement a due process based ex post review of business decisions
- An Oath: Constitutional Dialogue Between Chinese Law And Common Law
This Article provides an analysis that though there are many occasions that the courts in the HKSAR differ from the NPCSC in terms of the interpretation on the Hong Kong Basic Law, there are some occasions that common law and Chinese law agree, and the occasion to uphold the solemnity and legality of the oaths taken by public officers is one of those. The author compares the legal and political impact of an oath in the Eastern and Western world since ancient times. She further establishes her arguments that no matter by common law or Chinese law, the interpretation of Article 104 of the Hong Kong Basic Law would arrive at the same conclusion. Through detailed discussion on common law cases on the validity of an oath, the author observes that it is foreseeable that the legislators who breached the form as well as content of the Legislative Council of Hong Kong oath in 2016 would be disqualified if one paid attention to an earlier judgement in 2004 in relation to whether the format of swearing the oath may be deviated. The answer from the Court is “NO”. The interesting point is that 12 years later there is an NPCSC Interpretation on Article 104 of the Hong Kong Basic Law, the content of which very much resembles common law principles on the validity of an oath and its legal implication if the oath is not sworn solemnly by legislators in the prescribed form. Therefore, the author argues that regarding an oath, common law and Chinese law agree
- On The Un Convention Against Transnational Organized Crime And Convention Against Corruption In China: Domestic Efforts And International Cooperation
The aim of this article is to explore the challenges and approaches of acceptance and implementation of the UN Convention against Transnational Organized Crime (UNTOC) and the UN Convention against Corruption (UNCAC) in China and to examine the practice of international anticorruption cooperation. The challenges of acceptance of the UNTOC and the UNCAC mainly comprise political, national interest and anticorruption strategy considerations. Meanwhile, the challenges for the acceptance and implementation of these two international conventions involve not only good governance and the rule of law considerations but also the need to integrate them domestically into the national legal system. Criminal Law is an important part of the laws used in anticorruption efforts: As society has developed, the scope of corruption crime has correspondingly expanded. In recent years, because of these two important international conventions, China’s international cooperation has resulted in some practicable achievements, especially in terms of individual asset recovery
- Trademark Trolls in China: Reasons and Solutions of the Serious Market Disturbing Problem
In recent years, trademark trolls have become a serious problem that disturbs the Chinese market. Though trademark trolls are concomitant with the trademark registration system, their overspreading in China is due to particular social and legal factors: the proactive trademark protection policies...
- China Law Update
- China Law Update
- The Making and Structure of the 1982 Constitution of China
This article aims to historically explore the political and ideological structure of the 1982 Constitution, both of which are multiple and can, therefore, be examined from various angles. This includes, first of all, the historical changes of the United Front and the Political Consultative...
- The Application and Challenges of Blockchain in Intellectual Property Driven Businesses in China
Blockchain" is the buzzword of the year, if not the decade. Aside from the role Blockchain plays in cryptocurrency transactions, Blockchain technology has the potential for significant real-world applications. Disruptive Blockchain technology can be applied to intellectual property-driven...
- Lay Participation in the Adjudication of Legal Disputes: A Legal-Historical and Comparative Analysis Focusing on the People's Republic of China and Its Special Administrative Region Hong Kong
The participation of lay persons in the adjudication of legal disputes is generally regarded as a necessary and effective constituent for a credible and independent judicial system. This is exemplified in the trial by jury in jurisdictions with legal systems following the common law tradition, and...
- Should China Harmonize its Merger Assessment with the U.S. and EU?
- Causal Uncertainty in Chinese Medical Malpractice Law - When Theories Meet Facts?
Causal uncertainty is frequently encountered in medical malpractice cases, both in China and in other legal systems. Under the traditional "all-or-nothing" approach of proof rules, the prevalence of causal uncertainty makes proof of causation highly problematic in medical malpractice lawsuits. The...
- Transcending Territoriality: International Cooperation and Harmonization in Intellectual Property Enforcement & Dispute Resolution
Intellectual property owners often face difficulties when trying to enforce their rights in cross-border and multi-jurisdictional disputes. Enforcement processes usually need to be litigated jurisdiction-by-jurisdiction, which can be prohibitively complicated and expensive. Chinese investors can...
- Striking a Balance Between Intellectual Property Protection of Traditional Chinese Medicine and Access to Knowledge
Traditional Chinese medicine has played a vital role in the well-being of Chinese people for thousands of years. It is a comprehensive system of herb medicine that has been repeatedly practiced and gradually summarized by Chinese people over a long period of time. The current practice related to...