Reflections on the legal features of the socialist market economy in China

China’s socialist market economy is a market economy co-existing with a large public sector of the economy, affected by the State as a policymaker, a regulator and an important actor along with private ones; general interests in principle prevail over individual ones. A major role of the law is of providing the tools for administrative leadership and efficient macro-control. Legal and policy documents concur in indicating a model for the developing Chinese legal system: not as Western-style “rule of law” (r.o.l.); more and better socialist laws; effective supervision at all levels; intense macro-control over private economy; more efficient, law-abiding administration and legal institutions. The governing authorities are at different levels, according to the size/impact of each specific business, and each of them has or may have a say beyond the law, so implementing full macro- and micro-control on the market at various levels, through a substantial number of “policy checks” at appropriate junctions or in blank areas of the law. Differentiated “modes” of the law could be the results of a coordinated absorption within the socialist frame of values, mechanisms, norms, formants hailing from different sources.     

Thoughts on the theories and practice of chinese private international law

“The parties can only choose facultative legal norms,” “the parties of all foreign-related civil and commercial cases may agree to choose Chinese law as the applicable law governing their legal relationship,” and “the applicable law to the contract chosen by the parties shall not avoid the mandatory provisions of Chinese law” —such viewpoints that have substantial influence among the theorists and in the judicial practices of Chinese private international law are actually based on misunderstandings of Chinese private international law. It is a task of the private international law community of China to eliminate such misunderstandings, hence facilitating the healthy development of Chinese private international law.     

Developmental Pathways into Social and Sexual Deviance

Path analysis was used to assess the contribution of four exogenous developmental variables (sexual abuse, physical abuse, exposure to violence, exposure to pornography—each occurring prior to age 13) and four personality constructs (“psychopathic and antagonistic attitudes,” “psychosocial deficits,” “pedophilia,” “hostile masculinity”) to the prediction of non-sexual delinquency and number of male child victims in a sample of 256 adolescent males with a history of “hands-on” sexual offending. “Psychosocial deficits” was found to partially mediate the effects of the exogenous variables on both outcomes. Exposure to violence both directly, and indirectly through “psychopathic and antagonistic attitudes,” contributed to the prediction of non-sexual delinquency. Sexual abuse by a male directly, and indirectly through “hostile masculinity” and “pedophila”, contributed to prediction of number of male child victims. Clinical implications of the findings are discussed.     

Willing Suspension of Disbelief: A Study in Online Learning Through Simulation,and Its Potential for Deeper Learning in Higher Education

This article describes the replacement of a “traditionally taught” law of probate course (lectures and workshops/tutorials) with an on-line collaborative learning exercise using simulation and role-play which is referred to hereafter as the Transactional Learning Project (TLP). The article considers the theory that the emotional engagement that comes about through role play in simulation leads to deeper learning, a process (Maharg in Simulation and the affective domain, Cambridge, 2010) has dubbed as the “integration of the cognitive and the affective”. The article includes statistical analysis of student feedback on the TLP in an attempt to measure how easy it is to carry students predisposed to expect information to be “given” rather than “acquired” along the journey leading away from traditional didactic teaching. The project was motivated partly by the dearth of such learning practices on the Legal Practice Course. It is suggested that the findings of the project add to the body of research (Keats and Boughey in High Educ 27:59–73, 1994) which tends to illustrate the success in terms of student learning from working in leaderless (i.e where the Tutor is absent from the collaborative group) groups engaged in practical tasks involving simulation.     

Organised Criminals as “Agents of Obligation”: The Case of Ireland

Relying on Brown's (2005a, b) thesis that contemporary shifts in penal policy are best understood as a reprisal of colonial rationality, so that offenders become “non-citizens” or “agents of obligation”, this article argues, firstly, that this framework (with certain important refinements and extensions) finds support in developments in Irish criminal justice policy aimed at offenders suspected of involvement in “organised crime”. These offenders have found themselves reconstituted as “agents of obligation” with duties to furnish information about their property and movements, report to the police concerning their location and, importantly, refrain from criminal activity or face extraordinary sanctions. Secondly, it is submitted that this draconian approach to the control of organised crime is built on false premises; specifically the idea that “organised crime” as such exists and is best controlled through restrictions on the freedom of key groups or “core nominals”.     

The “Science of Science Policy”: reflections on the important questions and the challenges they present

Developing the “Science of Science Policy” will require data collection and analysis related to the processes of innovation and technological change, and the effects of government policy on those processes. There has been much work on these topics in the last three decades, but there remain difficult problems of finding proxies for subtle concepts, endogeneity, distinguishing private and social returns, untangling cumulative effects, measuring the impact of government programs in a true “but for” sense, and sorting out national and global effects. I offer observations on how to think about these issues. This paper was presented as the Keynote Address at the NSF Workshop on Advancing Measures of Innovation: Knowledge Flows, Business Metrics, and Measurement Strategies, Arlington, VA, June 2006.     

Transcending the dilemma of “public interest”

This paper discusses the evolution and recent trends in the development of the constitutional concept of “public use” in the case-law history of the United States starting from the source of US government’s taking powers and the original meaning of the Taking Clause in the Fifth Amendment of the United States Constitution. Since the concepts of “public use” and “public interest” are extremely difficult to be defined, it is very hard for the US courts to develop a relevant operative criterion. In the United States, the safeguard of “public interest” in taking mainly lies legislative rather than judicial control. In a democratic society, legislative judgment is highly respected by the courts and the entire takeovers that conform to public use as determined by the Congress are usually deemed constitutional. In this sense, the Congress is a “public interest machine”, which automatically generates laws and decisions on behalf of public interests through the democratic representative process. The paper eventually suggests that China should divert its attention from the theoretical definition of “public interest” to institutional construction, and should make the National and Local People’s Congresses and their standing committees to play major roles in deciding taking and compensation schemes. __________ Translated from Zhongguo Faxue 中国法学 (China Law), 2005, (5): 36–45     

Venturing into uncharted financial waters: an essay on climate-friendly finance

This paper explores links between global financial imbalances and tensions around reserve currency along with climate change. Currently, risky levels of private and public debts coexist with vast amounts of savings that “do not know where to go.” Long-term climate-oriented financial products could enhance investors’ confidence in low-carbon projects (LCP) and channel to them large amounts of private savings. The paper outlines a financial architecture, the cornerstone of which is an agreement on the Social Cost of Carbon (SCC) integrated into a project’s appraisal and acting as a surrogate for a carbon price. This SCC would be the value of carbon certificates issued by the government and delivered to banks to issue credit facilities reducing the risk-adjusted costs of LCPs. These carbon certificates could be gradually transformed into legal reserve assets of the banks after verification of the reality of the projects. Finally, the paper considers whether such certificates would be recognized as genuine international reserve assets, backed by the rising value of carbon over time. It shows how emerging countries could then diversify their foreign exchange reserves through an asset based on the international recognition of climate as a global public good.     

Law,Genre and the Voice of the Friend

The article attempts to think friendship in its relation to law and justice and provides some arguments for the importance of this concept in Derrida’s ethical, legal and political philosophy. It draws on early texts such as Of grammatology and reads them in conjunction with later texts such as The animal that therefore I am. The relation of friendship to law and justice is explored by means of Derrida’s notion of “degenerescence” understood as the necessity or law of indeterminateness that cuts across, both limiting and de-limiting, all laws, types and generic partitions, for instance, juridical (natural and positive right), humanistic (human and animal), anthropological (sexual difference), philosophical (physis and nomos). Drawing on Derrida’s readings of “sexual difference” in Heidegger and the latter’s evocation of “the voice of the friend” in Being and time, the article addresses the theme of Geschlecht and articulates the exigency to think sexual difference beyond duality together with the exigency to rethink law and right otherwise than on the ground of nativity and “natural fact” and in terms of what Derrida calls “a friendship prior to friendships” at the origin of all law and socius.     

What is Inhuman Treatment?

In this article, I propose and argue for a conception of inhuman treatment. In the human rights context, I claim, inhuman treatment is that which is grossly degrading. Relative to “cruel,” “inhumane,” and “degrading,” “inhuman” has received little attention from moral philosophers. My aim here is to analyze this concept in greater depth in order to determine what it brings to discussions about punishment and other kinds of treatment. I begin by drawing distinctions between “inhuman,” “inhumane,” and “degrading.” Then, I discuss analyses of “inhuman treatment” proposed by Jeremy Waldron and John Vorhaus. Although I find both conceptions problematic, discussing each helps me to set the stage for my proposal. After articulating and arguing for my own conception, I conclude by briefly explaining some of its implications.     

Educational policy of the German Bundesverfassungsgericht

This article analyses the jurisdiction of the German Federal Constitution Court over the basic rights of parents, pupils and private schools and the traditional interpretation of the term “supervision of schools by the state” in Art. 7 para 1 Grundgesetz. The term “school supervision by the state” is traditionally interpretated as the state's absolute rights with regard to organisation, planning, control and supervision of schools. The author argues for a new interpretation to limit such supervision to the question of the legality of school activities. Parents should have a free choice between private and state schools. For this it is necessary to give subsidies to private schools in a way that every pupil can enter a school without differentiation according to the social standards or the income of their parents. With these principles in mind, the German Federal Constitution Court tried in 1987 in exemplary fashion to harmonise the constitutional claim and the constitutional reality. However, its recent decisions cast doubt upon this positive assessment. This revised version was published online in July 2006 with corrections to the Cover Date.     

The Role of Beliefs,Attitudes and Adverse Childhood Experiences in Predicting Men’s Reactions Towards Their Spouses’ Violence

The purpose of the present article was to determine the ability of cognitive factors (beliefs and attitudes) and adverse childhood experiences to predict men’s reactions towards their spouses’ violence. To do so, 120 males who had referred to family court to seek divorce due to spouses’ violence were randomly selected and an author’s -made questionnaire containing 27 subscales was administered to them. Four of the 27 subscales comprised of 22 questions regarding “types of reactions towards spouses’ violence”, “attitudes towards spouse”, and “experiencing family violence during childhood”. Our results showed that witnessing violence during childhood could positively predict reactions such as “cessation of relationship” and “reprisal”. Men’s beliefs regarding “permission to use violence” could positively predict reaction such as “cessation of relationship”. Furthermore, factors such as “Believing his wife is more knowledgeable” and “Wife’s Physical Appearance” negatively predicted reactions such as “Cessation of relationship” and “Tolerance”. Also “Man’s perceived career success” positively predicted the reaction of “Attempts to Resume Relationship”. These results are discussed in the context of the existing literature.     

Japan,Korea, the Philippines,China: four syndromes of corruption

Both generalizations about “Asian corruption”, and claims about greater or lesser amounts of corruption, tend to overlook the many variations existing among and within Asian societies, and among the corruption problems they experience. I suggest that deeper influences in social, political and economic development, and contrasting institutional settings, create four distinctive syndromes of corruption, each with its own set of implications for relationships between wealth and power. Japan is an example of “influence markets” in which private interests buy or rent influence over relatively specific policy outcomes within a strong state. Korea is a case of “elite cartels”, in which collusion and corrupt incentives enable several kinds of elites to cooperate in governing, enriching themselves, and resisting rising political competition. The Philippines is marked by “oligarchs and clans”, with powerful families and their entourages plundering a weak state in a climate of uncertainty and insecurity. China experiences “official mogul” corruption, in which officials abuse state power with impunity, although that process is becoming increasingly fragmented. The four syndromes may help us understand why corruption and rapid growth have coexisted in some, but not all, Asian states for long periods of time, and may also help us understand why some of those states will adapt to new global realities only with some difficulty. They also show how “consensus”-driven reforms emanating from the west may not only be ineffective, but may actually make matters worse.     

Tell Me Who is Your Enemy...

The purpose of the article is to show through the analysis of some recent publications, art exhibitions, trials and other types of discourse, who is considered to be “an enemy” in Russia today and how law enforcement and the judiciary respond to so called “threats,” emanating from the constructed enemies. The analysis reveals some dangerous tendencies in the formation of a common identity for people living in Russia. For instance, search for a “national idea,” “traditional roots,” “patriotism,” and “distinctive nature,” aimed at the formation of this common identity and strengthening the state, is implemented in a way, which leads to the exclusion of ‚others’ and thus undermines the possibility to lay the foundation for the multicultural state based on peace, harmony and tolerance. Russia must become a common house for all ethnic, religious and linguistic minorities living in it, and no one representing them should be in a position of the less favored and less protected. National identity in a multinational state can be only a plural identity, providing for the possibility of living in several communities simultaneously.     

Restorative Justice and “Empowerment”: Producing and Governing Active Subjects through “Empowering” Practices

During the last quarter-century, restorative justice has emerged as a widely-utilised response to crime in Western nations. This article, which stems from a Foucauldian genealogy of restorative justice, argues that its embeddedness within the discourse of “empowerment” renders restorative justice a politically acceptable response to crime. “Empowerment”, it is argued, is one of many conditions of emergence of restorative justice. The discourse of “empowerment” underpins restorative justice in tangible ways, and has informed legislation and policy in Western jurisdictions. This article seeks to problematise the taken-for-granted nature of this discourse. It argues that the discourse of “empowerment” produces restorative justice subjects who are increasingly governed and governable. As “empowering” restorative practices are targeted towards “disempowered” individuals and communities, concerns are raised about the potential of restorative justice to disproportionately impact upon socially marginalised populations and to increase social exclusion.     

Crimes against water: non-enforcement of state water pollution laws

In the United States water pollution is a serious problem criminalized not only by the federal government, but by all states. These laws vary greatly in content, but are widely disobeyed and universally under-enforced. Statutes, case law, histories and journalism show “law in action” typologies of non-enforcement efficacious for analysis including: (1) jurisdiction issues like federal pre-emption, inter-state compacts, and constitutional limitations; (2) legislative issues such as failure to legislate, or legislating ineffectively; (3) agency issues, including administrative obstacles, delegation, power vacuums, procedure, and “agency capture”; (4) policing issues like apathy, under-funding/training, jurisdictional confusion, and “following the path of least resistance”; (5) prosecutorial issues, including isolation, intimidation, and ideological priority bias; (6) trial and appellate court issues, including unclear culpability, erroneous holdings, bias, and lack of judicial independence; and (7) citizen, victim, and defendant issues, including legal intellectual influence, environmentalist criminalization apathy, industry lobbying, environmental justice, reporting failures, self-policing, ethics and flight. The conclusion is non-enforcement in this area of criminal law shows that while federally there may exist a relatively consistent, content neutral enforcement system, at the state level resistance to enforcement is seen across a number of fronts. Ultimately, states can be seens as colonized frontiers servicing venture capitalism, consistent with a “race to the bottom.”     

The “Conventionalization” of Safety Crimes in the Post-Communist New Member States of the European Union

This article begins by presenting a brief overview of the neglected area of “safety crime” in the post-communist states of Central and Eastern Europe. Quantitative and qualitative evidence is reviewed, suggesting both the widespread nature of safety crimes, and a deteriorating work environment, in which safety crimes are routinely tolerated. Evidence of the “institutionalized tolerance of non-compliance” is provided through a case study of labor inspection in the new member states, focusing on Latvia, currently the worst performer in health and safety in Europe. Against a background of general violations of labor rights, current innovations in European-level regulatory strategies are critiqued, in particular, the shift towards “soft law” and compliance-based strategies, relying on appeals to corporate social responsibility, together with the encouragement of various forms of voluntary initiatives. It is suggested that such (self)-regulatory strategies may be inappropriate as forms of crime control in the new member states of the European Union. In effect, a convergence domestic and European Union policies may open the door to the further “conventionalization” of safety crimes in the new member states.This article is based on a paper first presented to a seminar, “Regulating Corporate Crime and White-Collar Crime: Developments across Europe”, Finnish Police College, Helsinki, 3–4 September, 2004. Financial support for the research was provided by a European Commission Marie Curie chair award (no: 509727). The author would like to thank Kit Carson and Steve Tombs, as well as the participants in the Helsinki seminar for their helpful comments. Any errors remain those of the author alone.     

我国刑事赔偿制度之改革

In reference to the United Nations International Covenant on Civil and Political Rights (hereinafter referred to “the Covenants”), the state compensation system of China in criminal justice shall be reformed as such: Compensation for a miscarriage of justice should not be determined by the results of first instance or second instance, but no guilty through retrial in the final trial upon finding of new evidences. If policemen, prosecutors and judiciaries take lawful measures, causing loss to the suspected due to arrest, detention or other enforcement in the criminal proceedings, the suspected should not get the state compensation for that even if he is decided no guilty in the final trial. If the suspected is cooped up illegally, he should get the state compensation even if being decided guilty finally. The measures of search and seizure should be included in coercive measures, hence differentiating the lawful search and seizure and the unlawful infringement of the property rights. Yang Yuguan, Professor of the Procedure Law Institute in China University of Political Science and Law, whose research mainly covers procedure law and human rights law. He wrote many books and essays, for instance, “Computer and Crime” (1986), “On Plea Bargaining” (1986), “Basic Education in Prisons in China” (1995), “The United Nations Crime Prevention and Criminal Justice Policy” (1996), “On the Ratification and Implementation of the International Covenant on Civil and Political Rights” (2000), “On Hearsay” (2001), “On Exclusionary Rule” (2002), “Human Rights Law: Study On International Covenant on Civil and Political Right” (2003), “The International Criminal Court: Idea, reality and Prospective” (2007), “Death Penalty Control with Procedural Law” (2006), “On Due Process of Law and Human Rights Protection” (2005). He was once a researcher fellow of Ministry of Justice of China, a member of the Crime Prevention Branch of the United Nations Office at Vienna, and an editor-in-chief in some books, such as “The United Nations Criminal Justice Norms and Standards”, “The United Nations Human Rights Treaty Bodies and their Comments”, “A Study On UN Convention of Anti-corruption”.     

中国行政执法困境的个案解读

Due to lack of effective, and adequate communication on the standpoint of the government and the attitudes of civil society in legislative process, this has led to tension between the government and the general public. Within the context of law enforcement, the government sticks to “problem-based strategies” and “campaign-based enforcement”, who believe in the power of coercive force. As a way out of the dilemma in law enforcement, it is required that in the process of rule-making, the government should communicate effectively with the civil society in the institutionalized system, focusing on learning, reflection, and strategic adjustment. Wang Xixin, Professor at Law School of Peking University. Since 1999, Prof. Wang is a working member of China Administrative Legislative Research Group an academic team advising China’s Legal Affairs Working Commission on administrative law reforms. Since 2001, he is a major drafter for China’s Administrative Procedure Act. Since 2002, he is a research consultant for the NPC Standing Committee General Office. Since 2003, he is a research fellow of the China Law Center of Yale Law School. Since 2005, he is a Vice-chairman of Beijing Administrative Law Society. In academia, Prof. Wang is focused on administrative procedure, public participation, rulemaking and comparative administrative studies, whose publications include books, such as “Administrative Procedure: A Theoretic and Institutional Inquiry” (Beijing, 2007) and “Public Participation and Administrative Process” (Beijing, 2007) and some 30 articles for journals published in China and America. Moreover, Prof. Wang often submits papers and gives lectures in academic forums, including Columbia Law School, Yale Law School, the Woodrow Wilson Center for Int’l Scholarship, and Carnige Endowment for Int’l Peace.     

The resources of corruption: Some reflections from the Italian Case

This article focuses on the resources used in corrupt exchanges and the complex network of actors involved. The empirical analysis is drawn from research into the Italian case, and is based on judicial investigations, a newspaper-based data bank, and interviews. Defining corruption as a market for political rent, the analysis focuses on the “commodities” which flow from the public to the private sectors (in particular, influence over political decisions and information) and those which flow in the opposite direction (such as bribes, influence on the mass media etc.). Resources which corrupt agents use to reduce the costs of “producing” corrupt services are also explored as well as the risks involved in hidden exchange. This revised version was published online in July 2006 with corrections to the Cover Date.