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Frontiers of Law in China

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, Volume 12 Issue 3 Previous Issue   
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Orginal Article
EDITOR’S NOTE
JIANG Dong
Front. Law China. 2017, 12 (3): 337-338.   DOI: 10.3868/s050-006-017-0018-8
Abstract   PDF (117KB)

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INTERNATIONAL APPROACHES TO TACKLING CORRUPTION: WHAT WORKS AND WHAT DOESN’T?
Dan Hough
Front. Law China. 2017, 12 (3): 339-354.   DOI: 10.3868/s050-006-017-0019-5
Abstract   PDF (208KB)

A well-developed set of international anti-corruption tools now exists. These range from broad conventions to focused initiatives in specific policy areas. This article argues that international agreements work best when they are focused and they speak to the common interests of the parties involved. Solutions need to be creative, they need to bring in a broad coalition of stakeholders and they need to be focused on specific problems. International agreements need to help states with good quality institutions of governance focus on developing transparency initiatives, accountability drives and nuanced efforts to tackle particular national variants of “legal corruption.” In countries with patchy institutions of governance the scope for international influence is broader, while in states with serious governance challenges the best international anti-corruption efforts will often have surprisingly little to do with corruption at all. In a state where the rule of law is patchy or non-existent then anti-corruption laws (or indeed laws more generally) mean very little. The challenge here is to improve the basic tools of governance in the knowledge that only then can the issue of corruption be brought on to the agenda.

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DOES CHINA NEED AN ANTI-FOREIGN BRIBERY STATUTE? SOME LESSONS FROM THE FCPA OF US
JIANG Dong
Front. Law China. 2017, 12 (3): 355-371.   DOI: 10.3868/s050-006-017-0020-9
Abstract   PDF (238KB)

Globalization has been accompanied by the spreading of bribing foreign officials. In order to curb the transnational corruption, the US has pioneered the anti-foreign bribery through enacting the 1977 Foreign Corrupt Practice Act (FCPA), which also stimulated the formulation of international anti-corruption agreements. Even though the 8th Amendment of China’s Criminal Law contains a concise provision on sanctioning bribing foreign officials, however, China still does not have a comprehensive anti-foreign bribery legal mechanism. As the second largest economy of the world, China seems inevitably to have its own anti-foreign corruption statute. This article aims to use the U.S. FCPA as an analytical subject to discuss whether or not China has the necessity of enacting its own statute of foreign corruption prevention. The issues such as extraterritorial jurisdiction and compliance burden should also be considered in the enactment of China’s possible anti-foreign bribery law.

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A REVIEW OF THE CHINA–GHANA BILATERAL INVESTMENT TREATY, 1989
Philip Ebow Bondzi-Simpson, Felix Awuah
Front. Law China. 2017, 12 (3): 372-383.   DOI: 10.3868/s050-006-017-0021-6
Abstract   PDF (176KB)

Sino-Ghana business relationship has grown tremendously over the past two decades. The legal environment of this relationship will be analyzed critically and suggestions for improvement will be made in this article to further enhance this burgeoning relationship. In October 1989, Ghana and China signed an agreement concerning the encouragement and reciprocal protection of investment, known as the China–Ghana Bilateral Investment Treaty, which came into effect on November 22, 1991. There will be a review of this agreement which sought to provide an equitable treatment and enjoyment of protection in investments between the two countries based on the Most Favored Nation principle.

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THE ORIGIN AND TRANSFORMATION OF JUDICIAL YUAN: FROM THE COMPARATIVE AND HISTORICAL PERSPECTIVE
NIE Xin
Front. Law China. 2017, 12 (3): 384-403.   DOI: 10.3868/s050-006-017-0022-3
Abstract   PDF (709KB)

The Judicial Yuan, a model of supreme judicial organization peculiar to China’s recent history, was one of the outcomes of several decades of evolution from the legal reform in the late Qing dynasty to the passage of Constitution of the Republic of China (ROC) in 1947. Its predecessor, the Dali Yuan established in 1906 by the Qing government, not only had the supreme judicial power and the power of abstract interpretation, but also enjoyed the power of interior administration independently from the outset. The Judicial Yuan, established in 1928, inherited the judicial administrative power of Dali Yuan and further expanded it. The Judicial Yuan also inherited Dali Yuan’s power to unify the interpretation of law and regulations, and expanded the power of abstract normal control (Normenkontrolle) to constitutional interpretation. The Council of the Grand Justices of the Judicial Yuan had developed the paradigm of constitutional court and shared similarities with the Federal Constitutional Court of Germany. It is safe to conclude that even before the promulgation of the Constitution of the ROC, the Judicial Yuan was fairly well-developed in institutional terms. The key characters of the ROC Judicial Yuan include the special arrangement of judicial administration, a centralized judicial review by the Council of the Grand Justices and a diverse judicial trial mode.

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PROTECTION OF STATELESS PERSONS IN CHINA: A HUMAN RIGHTS PERSPECTIVE
LU Haina, HAO Wanyuan
Front. Law China. 2017, 12 (3): 404-428.   DOI: 10.3868/s050-006-017-0023-0
Abstract   PDF (371KB)

Statelessness is an old and continuous problem existing in many countries around the world. Statelessness is caused by various reasons such as the conflicts of the nationality laws of different countries and international marriages. This article analyzes the legal framework and practices concerning nationality issues in China from the perspectives of China’s international obligations to protect the rights of stateless persons, especially women and children. This article also analyzes several stateless cases, in particular the de facto stateless situation of the “Vietnam brides” and their children in China. At last, the article gives recommendations in the light of international law and practices of the United Nations High Commissioner for Refugees on the reduction of statelessness in China.

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SOCIAL PROTECTION INNOVATION AND CHALLENGES IN CHINA AND AFRICA: SELECTED COMPARATIVE PERSPECTIVES
Marius Olivier
Front. Law China. 2017, 12 (3): 429-472.   DOI: 10.3868/s050-006-017-0024-7
Abstract   PDF (397KB)

This contribution concerns social protection innovation in China and Africa as regards aging populations and social security extension to informal workers. China has adopted and extended several contributory schemes and non-contributory arrangements. Yet, the country faces significant challenges in terms of a funding gap, high urban contribution rates, inadequate benefits and an existing benefit gap, inequality in the treatment of public versus private sector workers, and insufficient migrant worker coverage and portability arrangements. While population aging is less of a problem in most African countries, African retirement arrangements experience challenges in relation to funding limitations, and a host of shortcomings as regards contributory schemes and non-contributory arrangements. China has seen a decline in the numbers of those who work in the informal economy. Ensuring proper coverage of such workers have included strengthened labor market regulation: An integrated approach is called for. In Africa, access by these workers to social security is limited. Attempts to achieve coverage extension have included conceptual developments, institutional initiatives, tailor-made design modalities, and a range of supportive arrangements (such as access to finance and to markets). All these developments reflect a new appreciation of the leading role of the state in the provisioning of social security.

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INVESTOR PROTECTION IN CHINA’S SECURITIES MARKETS: MARGINALIZATION OF THE JUDICIARY AND UTILIZATION OF POLITICAL RESOURCES
HUANG Tao, HE Weiping
Front. Law China. 2017, 12 (3): 473-495.   DOI: 10.3868/s050-006-017-0025-4
Abstract   PDF (405KB)

China’s securities markets have been experiencing high growth this year. The Shanghai Stock Exchange is now ranked as the fourth largest stock exchange of the world. So, who is protecting the Chinese investors in this fast growing and potentially volatile market? The Incomplete Law Theory of Pistor and XU contends that regulators, as they are more efficient, play a more dominate role than the judiciary in protecting investors in the securities markets. This theory to some extent explains why the China’s judiciary has been inactive in protecting investors in China, the host of the third largest securities market in the world. However, this article finds that the theory is not able to adequately explain the investor protection mechanism in China. We find that by deploying various political resources, the Chinese state plays a direct role in protecting the interest of investors that is often more significant than that played by judicial or regulatory authority action.

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TALK ON PLURALISM FROM PROFESSOR JOHN INAZU
LI Guolin
Front. Law China. 2017, 12 (3): 496-497.   DOI: 10.3868/s050-006-017-0026-1
Abstract   PDF (126KB)

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