Mar 2019, Volume 14 Issue 1

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    ZHU Jingwen

    ZHANG Wenxian

    China entered a new era of reform and opening up after the Third Plenary Session of the 11th Central Committee of the Communist Party of China in 1978. During the past forty years of rapid socioeconomic change and historical progress toward governing the country according to law, legal research in China has achieved unprecedented progress and prosperity. Forty years of legal research during China’s reform and opening up can be reviewed and summarized from varying perspectives, using wide-ranging approaches. This article will identify major theoretical issues and several innovative perspectives concerning legal research in China over the past forty years. It will focus on theoretical issues concerning jurisprudence, legal history, and other major areas of legal science.

    WANG Liming

    This article reviews the historical development of Chinese civil law since reform and opening up of China and argues that the primary achievement of civil law legislation over the last four decades has been the formation of a comprehensive civil legal system. Today’s civil law system in China not only satisfies the institutional requirements for building a market economy but also constructs a legal rights system and establishes fundamental civil law principles, such as individual autonomy, equal protection, good faith, and fairness. In the 40 years since reform and opening up, there have been significant innovations with regard to the specific systems, systemic structures, and fundamental principles of Chinese civil law. This article summarizes the experiences of China’s civil law legislation since reform and opening up and looks ahead to how the anticipated “civil law codification” suitable for the modern era will develop a modern legal code based on China’s domestic circumstances.

    BIAN Jianlin, XIE Shu

    The Third Plenary Session of the 11th Central Committee of the Communist Party of China held in 1978 marked the initiation of the policy of reform and opening up in China, beginning a new chapter in the construction of a socialist legal system. The first Chinese criminal procedure law was promulgated the following year and was revised twice in 1996 and 2012. Although remarkable progress has been made, the level of the rule of law in China’s criminal procedure must still be improved to meet the goal of modernizing the criminal rule of law.

    GUANGLIN Qiaozi

    With the development of the international community, public morals have attracted increasing attention from states. Nevertheless, the “public morals” exception clause in Article XX(a) of the General Agreement on Tariffs and Trade (GATT) is hardly invoked by state parties as a distinct basis for trade-restrictive measures. The EC-Seal Product dispute is the first case in which the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) considered this issue, after which it addressed the issue in the Columbia-Textiles and the Brazil-Taxation disputes. This article aims to analyze the kinds of public morals that can be justified while implementing trade-restrictive measures. It proposes that the human rights standard is a significant moral concern and that human rights law and trade law may be integrated. The article also addresses the question on the procedures that should be followed in applying Article XX(a) to avoid abuse. It concludes that Article XX(a) attaches intrinsic importance to striking a balance between trade liberalization and state sovereignty, for which it must be reserved in the GATT.

    LIU Lu, QI Qi

    This paper explores the law in China determining the validity of ad hoc arbitration agreements. It first points out the particularity of China’s attitude toward ad hoc arbitration through a textual analysis of key provisions in Chinese laws and the comparison between Chinese law and the law of other jurisdictions. The authors then adopt an empirical approach to analyze Chinese courts’ practice in the application of Chinese arbitration laws and conclude that, despite the clear wording employed by the Chinese Arbitration Law, Chinese courts could use two ways to save the ad hoc arbitration agreements without disobeying the statutory law. The paper then moves to analyze the Opinion of Supreme People’s Court on Providing Judicial Guarantee for the Construction of Free Trade Pilot Zone (hereinafter referred to as “SPC Opinion”) issued in December 2016, which is viewed as a tipping point toward a supporting regime of ad hoc arbitration. By implementing this SPC Opinion, for the first time, China regionally embraces ad hoc arbitration. On the basis of the analysis of this new development, the authors suggest possible facilitations to the SPC Opinion and predict the future reform of ad hoc arbitration.

    FANG Mengru