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ACCCI MONITOR OF
DEVELOPMENTS IN CHINA’S Monitoring Confucian Justice,
Transition from the Maoist Era, Trends in Legal Reform, Court System Reform,
Obstacles to the Rule of Law,
Developments in Trade Law and Corporate Governance, International
Legal System, Legal Issues in Hong Kong SAR Last updated: 17 June 2012 Comments are invited on
anything contained in the listed documents and suggestions for additional
linked documents are encouraged. Email to: Policy@accci.com.au |
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nline at: http://them.polylog.org/3/fcj-en.htm. Joseph Chan, “Human Rights and Confucian Virtues”, Harvard Asia Quarterly, Vol. 4, No. 3
(Summer 2000). Chan agrees that
Confucianism is in need of transformation in order to accommodate human
rights, but he argues that Confucianism has much to contribute to modern
discourse on human rights and to the ongoing process of the development of
human rights norms by its focus on mutual caring and love. Available online at: http://www.asiaquarterly.com/content/view/79/40/. |
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Transition from the Maoist Era Philip C.C. Huang, “Centralised Minimalism: Semiformal Governance by
Quasi Officials and Dispute Resolution in China”, Modern China, Vol. 34, No. 1 (2008), pp. 9-35. Informal procedures for governance, which
formed an important part of dispute resolution from imperial China through
the Republic and the Maoist period, have persisted today. Available for online purchase at: http://mcx.sagepub.com/cgi/content/abstract/34/1/9. Stanley B. Lubman, Bird in a
Cage: Legal Reform in China After Mao, Stanford University Press,
1999. The book describes the cultural and institutional context in which legal reforms after
Mao took place, and then examines dispute resolution by extrajudicial
mediation and the courts. The
coverage is comprehensive with 472 pages.
Details are available at: http://www.sup.org/book.cgi?id=385. Chih-yu Shih and Zhiyu Shi, Collective Democracy: Political and Legal
Reform in China, The Chinese University Press, 1999. This book does not discuss the transition
from the Maoist era as such, but provides a firm foundation for recent
political and legal reforms by describing the class nature of socialist law
and how nascent visions of the rule of law emerged. Details available at: http://www.chineseupress.com/english/e_front_page.html
Preview available at: http://books.google.com.au.
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General Trends in Legal Reform in
China EU-Asia Centre, “China and the Rule of Law,”
Eurasia Review, 9 February
2015. Available at: http://www.eurasiareview.com/09022015-china-rule-law-oped/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+eurasiareview%2FVsnE+%28Eurasia+Review%29. Xinhua, “China
Issues Legal Interpretation of Housing Expropriation Rights” People’s Daily 10 April 2012. China’s Supreme People’s Court issued a
statement ensuring that homeowners’ legitimate rights will be protected in
land expropriation and housing demolition practices. Available at: http://english.peopledaily.com.cn/90785/7782795.html Zhou Yinan, “Human Rights Added to Draft Law”, The Washington Post, 9 March
2012. A draft amendment to the nation's
criminal procedural law, which came under fire for permitting detention
without informing family in some cases, has added the principle of protecting
human rights to its general provisions.
Available at: http://chinawatch.washingtonpost.com/2012/03/human-rights-added-to-draft-law.php. A statement on the new amendment by People’s Daily is available at: http://english.peopledaily.com.cn/90785/7755910.html. Sharon LaFraniere, “China Acts to Give Defendants Greater
Rights”, The New York Times, 8
March 2012. China moved to enhance the rights of suspects and
defendants in criminal cases, recommending that its handpicked national
legislature adopt a series of Western-style safeguards in the most sweeping
revisions to its criminal procedure code in 15 years. Available at: http://www.nytimes.com/2012/03/09/world/asia/china-acts-to-give-defendants-greater-rights.html Loren B. Homer,
“Registration of Chinese Protestant House Churches Under China’s 2005
Regulation on Religious Affairs: Resolving the Implementation Impasse” , Journal of
Church and State, Vol. 52, No. 1 (July 2010), pp. 50-73. According to the author, the new
regulations appeare to offer hope to millions of
Chinese believers that they wold soon be able to
legalise their activities and worship in unregistered “house” churches and
avoid the criminal prosecution and harassment that they experienced for many
decades. Available at: http://jcs.oxfordjournals.org/content/52/1/50.extract. Qi Ming, “Analysis of Chinese Internet Law”, Chinese Law & Government, Vol. 43,
No. 5 (September/October 2010), pp. 5-11.
This article offers information on the Internet law and its impact in
the traditional legal system of China.
Available for purchase at: http://www.mesharpe.com/mall/results1.asp?ACR=clg. Note that a number of supporting documents
and regulations are printed in this copy of the journal. Roderick O’Brien,
“Two Commentators in the Slow Progress towards a Law on Religions”, China: An International Journal, Vol.
8, No. 2 (September 2010), pp. 374-385.
The author examines reasons for the China’s difficulty in preparing
and passing comprehensive laws relating to religion. Available by subscription at: http://muse.jhu.edu/login?uri=/journals/china/v008/8.2.o-brien.pdf. Tianjian Shi and Diqing Lou,
“Subjective Evaluation of Changes in Civil Liberties and Political Rights in
China”, Journal of Contemporary China,
Vol. 19, No. 63 (January 2010), pp. 175-199.
The authors’ analysis of survey data and a content analysis of the People’s Daily revealed that an
absolute majority of people believe that both civil liberty and political
freedom in China have improved significantly since 1979. Downloads may be ordered at: http://www.informaworld.com/smpp/content~db=all~content=a918908682 Jiang Shigong, “Written and Unwritten Constitutions: A New
Approach to the Study of Constitutional Government in China”, Modern China, Vol. 36 No. 1 (January
2010), pp. 12-46. The author suggests
that both a written constitution and an unwritten constitution comprise basic
features of any constitutional system and illustrates this with four sources
of China’s unwritten constitution.
Downloads may be purchased at: http://mcx.sagepub.com/cgi/content/abstract/36/1/12. Daniele Stockmann and Mary Gallagher
“Mass Media Mobilisation as a Means of Legal Reform in China”, prepared for delivery at the 2007 Annual Meeting of the
American Political Science Association, Chicago, Illinois (August-September).
Available online at: http://www.allacademic.com//meta/p_mla_apa_research_citation/2/0/9/2/7/pages209272/p209272-1.php. Liming Wang, “Rural
Land Ownership Reform in China’s Property Law”, Frontiers of Law in China, Vol. 1, No. 3 (September 2006), pp. 311-328. While the article appeared in print before
the “Property Rights Law of the
People's Republic of China” was enacted in March 2007, it is nevertheless
useful in expressing the need for such a law and in anticipating its main
provisions. Downloads of the article
may be purchased at: http://www.springerlink.com/content/g207r8770327x444/
and a translation in English of the law may be obtained at: http://www.lehmanlaw.com/resource-centre/laws-and-regulations/general/property-rights-law-of-the-peoples-republic-of-china.html. Donald C. Clarke,
“Introduction: The Chinese Legal System since 1995: Steady Development and
Striking Continuities”, The China
Quarterly, Vol. 191 (September 2007), pp 555-566. Downloads may be purchased at: http://journals.cambridge.org/action/displayIssue?iid=1346944. Philip C.C.
Huang, “Whither Chinese Law?” Modern
China, Vol. 33, No. 3, (April 2007), pp. 163-194. The author examines the
history of Chinese legal practices during the past century in order to
determine the components that might be considered Chinese legal modernity. Downloads may be purchased at: http://mcx.sagepub.com/cgi/content/abstract/33/2/163. Jerome A. Cohen, “China’s Legal Reform at the
Crossroads”, dated March 2006 by the Council on Foreign Relations. Abbreviated text is available at: http://www.cfr.org/publication/10063/chinas_legal_reform_at_the_crossroads.html Carnegie
Endowment for International Peace, “Legal Reforms in China: Problems and
Prospects”, 18 April 2005. A summary
of the proceedings of the conference is available in two parts: Panel I - Conducting Administration in Accordance with
Law (yifa xingzheng): Efforts to Regulate
Governments and Challenges Ahead; Panel II - Administering Justice for
People (sifa weimin):
China's Judicial Reform Efforts and their Limitations. http://www.carnegieendowment.org/events/?fa=eventDetail&id=764. Michael C.H.
Jones, “Rule of Law and Culture”, Speech for the Organising Committee of Year
2002 Australia-China Festival, 6 December 2002. Available at: http://www.accci.com.au/jones5.htm. J.J. Spigelman AC, “Convergence and the Judicial Role: Recent
Developments in China”, address to the China Education Centre, University of
Sydney, 11 July 2002. Text and
supporting documents are available at: http://www.accci.com.au/spigelman.htm. |
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Court System Reforms Benjamin L. Liebman, “China’s Courts: Restricted Reform”, The China Quarterly, Vol. 191
(September 2007), pp. 620-638. Downloads may be
purchased at: http://journals.cambridge.org/action/displayIssue?iid=1346944 Shen Kui, “Commentary on
‘China’s Courts: Restricted Reform”, The
China Quarterly, Vol. 191 (September 2007), pp. 639-643. Downloads may be purchased at: http://journals.cambridge.org/action/displayIssue?iid=1346944. Xin He, “The Recent Decline in Economic Caseloads in
Chinese Courts: Exploration of a Surprising Puzzle”, The China Quarterly, Vol. 190 (July 2007), pp. 352-374. Downloads may be purchased at: http://journals.cambridge.org/action/displayIssue?iid=1209436. Philip C.C. Huang, “Court Mediation in China, Past
and Present”, Modern China, Vol.
32, No. 3 (July 2006), pp. 275-314.
Downloads may be purchased at: http://mcx.sagepub.com/cgi/content/abstract/32/3/275. Institute of Law, Chinese Academy of Social
Science, “China’s Judicial System and Its Reform”, IDE Asian Law Series No. 2, Institute of Developing Economies,
Japan External Trade Organisation, March 2001. Available online at: http://www.ide.go.jp/English/Publish/Download/Als/02.html. |
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Obstacles to Rule of Law in China Ethan Michelson,
“Justice from Above or Below? Popular Strategies for Resolving Grievances in
Rural China” The China Quarterly,
Vol. 193 (March 2008) pp. 43-64.
Downloads may be purchased at: http://journals.cambridge.org/action/displayIssue?iid=1809132. Murray Scot Tanner and Eric Green, “Principals and Secret Agents:
Central versus Local Control Over Policing and Obstacles to ‘Rule of Law’ in
China”, The China Quarterly, Vol.
191 (September 2007), pp. 644-670. Downloads may be
purchased at: http://journals.cambridge.org/action/displayIssue?iid=1346944. Jamie P. Horsley,
“The Rule of Law in China: Incremental Progress”, published online by the
Commonwealth Institute, March 2006.
Available at: http://www.comw.org/cmp/fulltext/0603horsley.pdf. Jean-Pierre
Cabestan, “The Political and Practical Obstacles to
the Reform of the Judiciary and the Establishment of a Rule of Law in China, Journal of Chinese Political Science, Vol. 10, No. 1 (April 2005). Available at: http://jcps.sfsu.edu/past%20issues/JCPS2005a/4%20Rule%20of%20Law_Cabestan.pdf. Karla Hoff and
Joseph Stiglitz, “After the Big Bang? Obstacles to
the Emergence of the Rule of Law in Post-Communist Societies”, paper
presented at the annual meeting of the American Political Science
Association, Boston Massachusetts, 28 August
2000. Available online at http://www.allacademic.com/meta/p_mla_apa_research_citation/0/6/5/3/6/p65368_index.html. |
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Trade Law and the World Trade
Organisation Minyou Yu, “WTO Dispute
Settlement”, Frontiers of Law in China,
Vol. 4. No. 4 (December 2009), pp. 489-646.
The author discusses China’s performance as a WTO member and proposals
on its improvements. Downloads may be
purchased at: http://www.springerlink.com/content/xn18621745n7/?p=f3ae61f6ee114dc8adc1f126526b3cd7&pi=0. Gordon Y.M. Chan,
“Administrative Monopoly and the Anti-Monopoly Law: An Examination of the
Debate in China”, Journal of
Contemporary China, Vol. 18, Issue 59 (March 2009), pp. 263-383. Administrative monopoly is the abusive use
of administrative power by government agencies to engage in monopolistic
activities. Available for online
purchase at: http://www.informaworld.com/smpp/title~db=all~content=g908174333. Scott Wilson, “Law Guanxi: MNCs, State Actors, and
Legal Reform in China”, Journal of
Contemporary China, Vol. 17, Issue 54 (February 2008), pp. 25-51. Downloads may be purchased at: http://www.informaworld.com/smpp/title~db=all~content=g787843833. Vai Io Lo, “Legal
Reform in China: Legislation on Business Entities”, UNSW Law Journal, Vol. 30, No. 3, 2007. Online version available at: http://epublications.bond.edu.au/erahca/29/. Pitman B. Porter,
“China and the International Legal System: Challenges of Participation”, The China Quarterly, Vol. 191 (September
2007), pp. 699-715. This includes an
analysis of China’s compliance with the WTO trade regime, as well as China’s
international human rights diplomacy.
Downloads may be purchased at:
http://journals.cambridge.org/action/displayIssue?iid=1346944. Julia Ya Qin, “Trade, Investment and Beyond: The Impact of WTO
Accession on China’s Legal System”, The
China Quarterly, Vol. 191 (September 2007), pp. 720-741. http://journals.cambridge.org/action/displayIssue?iid=1346944. Huang Dongli, “Commentary on ‘Trade, Investment and Beyond’”, The China Quarterly, No. 191 (September 2007), pp. 742-744. Available for online purchase at: http://journals.cambridge.org/action/displayIssue?iid=1346944.
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Corporate Governance Issues Zhang Yang, “Courts
Feel Trials of Global Economy,” China
Daily, 17 June 2013. Available at:
http://www.chinadaily.com.cn/china/2013-06/17/content_16628333.htm. Michael N.T. Tan, “Has the QFII Scheme Strengthened Corporate Governance in China”? China: An International Journal, Vol, 7, No. 2 (September 2009). Pp. 353-36p. The author examines the extent to which the Qualified Foreign Institutional Investor (QFII) scheme strengthened corporate governance in the Chinese listed entities. Downloads may be ordered at: http://muse.jhu.edu/journals/china/summary/v007/7.2.tan.html. Phillip Stalley, “Can Trade Green China? Participation in the Global Economy and the
Environmental Performance of Chinese Firms”, Journal of Contemporary China, Vol. 18, Issue 61 (September
2009), pp. 567-590. Available for
online purchase at: http://www.informaworld.com/smpp/title~db=all~content=g913868771. Chao Xi, Corporate Governance and Legal Reform in
China, Published by Wildy Simmonds
and Hill Publishing, 2009. Available through
online booksellers. Jian Chen, Corporate Governance in China, RoutledgeCurzon, 2005.
A preview of the book is available from Google Books: http://books.google.com.au. James V. Feinerman, “New Hope for Corporate Governance in China?” The China Quarterly, Vol. 191
(September 2007), pp. 590-612. Online
purchase is available at: http://journals.cambridge.org/action/displayAbstract;jsessionid=6694791D1E3C34AF195209F582867B7F.tomcat1?fromPage=online&aid=1346972. Tang Xin, “Commentary on ‘New Hope for Corporate Governance in
China?’”, The China Quarterly, Vol.
191 (September 2007), pp. 613-619.
Online purchase is available at: http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=1346980. Centre for
Financial Market Integrity, “China Corporate Governance Survey”, 2007. Available online at: http://www.iasplus.com/china/0704cfainstitutereport.pdf Heidrick and Struggles with
the School of Management at Fudan University,
“Benchmarking Corporate Governance in China”, undated, but most probably 2006
or 2007. Available in pdf at: http://www.heidrick.com/NR/rdonlyres/3994B2C3-9527-4DB7-B49E-A697DAE9D952/0/HS_Fudan_CorpGov.pdf. Qiao Liu, “Corporate
Governance in China: Current practices, Economic Effects and Institutional Determinante”, CESifo Economic
Studies, Vol. 53, No. 2 (2006), pp. 415-453. Downloads may be purchased at: http://cesifo.oxfordjournals.org/cgi/content/abstract/52/2/415. |
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China and the International Legal
System Vladimir-Duro Degan, “The Value of the
Manila Declaration on International Dispute Settlement in a Case in Which the
Philippines Is a Party”, Chinese
Journal of International Law, Vol. 11, No. 1 (13 February 2012). The
article discusses the dispute arising when the Chinese Embassy delivered a
protest to the Philippine government after Manila had invited foreign
companies to bid for the right to explore for oil and gas in 15 areas, of
which 2 were objected to by Chinese officials as not being part of the
territorial seas of the Philippines within the 12-mile zone measured from its
baselines. It is available at: http://chinesejil.oxfordjournals.org/content/11/1/5.full. Wang Zonglai and Hu Bin, “China’s
Reform and Opening Up and International Law, Chinese Journal of International
Law, Vol. 2, No. 1 (March 2010), pp. 193-203. The paper reviews both the
benefits China has gained from its engaging with and using international law and
the contribution made by China to international
law in a wide range of areas covering international commerce and trade,
environment protection, climate change, combating transnational crimes, human
rights, disarmament, etc. Downloads
may be purchased at: http://chinesejil.oxfordjournals.org/cgi/content/abstract/9/1/193. Pitman B. Potter,
“China and the International Legal System:
Challenges of Participation”, The
China Quarterly, Vol. 191 (September) pp. 699-715. Online purchase available at: http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=1347036. James Li Zhaojie, “Commentary on ‘China and the International
Legal System: Challenges of Participation”, The China Quarterly, Vol. 191 (September), pp. 716-719. Online purchase available at: http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=1347044. Background information on globalisation and
international law is available in section 5 of the Chamber’s submission to the Productivity Commission’s Public Inquiry into
Australia’s Anti-dumping and Countervailing System is available at: http://www.accci.com.au/Antidumping.pdf. |
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James
Keith, “Hong Kong in the Balance”, Brookings
Northeast Asia Commentary, Number 25, June 2012. Available at: http://www.brookings.edu/research/opinions/2012/06/15-hong-kong-keith. Andrew Higgins, “Hong
Kong’s Next Leader, Leung Chin-Ying, Vows to Protect Freedoms, Seeks to Defuse
Anger”, The Washington Post, 25
March 2012. Available at: http://www.washingtonpost.com/world/hong-kong-selects-new-leader-after-tumultuous-contest/2012/03/25/gIQA10c9YS_story.html?wpisrc=nl_headlines. Andrew Higgins, “Hong Kong
Turns on Its Tycoons”, The
Washington Post, 22 March 2012.
Available at: http://www.washingtonpost.com/world/asia_pacific/hong-kong-turns-on-its-tycoons/2012/03/19/gIQAHQ9DTS_story.html?wpisrc=nl_headlines. Albert H. Y. Chen, “The Rule of Law under ‘One Country, Two Systems’: The Case of Hong Kong 1997-2010”, National Taiwan University Law Review, Vol. 6, No. 1 (March 2011), pp. 269-300. The author examines basic questions about the way in which the Basic Law of Hong Kong SAR is interpreted and administered both in Hong Kong and in the PRC. http://www.law.ntu.edu.tw/ntulawreview/articles/6-1/09-Article-Albert%20H.%20Y.%20Chen_p269-299.pdf. |
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