THE RIGHT TO EMPLOYMENT SECURITY IN CHINESE LABOR LAW：LATEST DEVELOPMENTS IN LIGHT OF INTERNATIONAL LAW

Employment security is very often examined from a labor law rather than a human rights perspective. This article looks at the employment security in Chinese labor law from a human rights perspective. The right to employment security includes both negative and positive aspects: a negative right to protection against unfair dismissal, including dismissal for cause and economic redundancy, and a positive right to employment stability. Comparing Chinese labor law with international standards, this article focuses on analyzing important changes in the legislative developments in China in the past years, such as severance pay, labor contract with indefinite duration, and labor dispatching. This article also points out the main deficiencies, such as dismissal on the ground of criminal liabilities, weakness of trade unions and law enforcement, and no exemption of small employers. The article concludes with observing a tendency of Chinese law getting closer to international standards and pointing out the approach China should follow: to enhance employability through vocational training and providing better social security when strengthening the legislative protection of employment security.     

CONSTRUCTION OF A GOVERNMENT UNDER THE RULE OF LAW — AN OVERVIEW OF REPORT ON CHINA LAW DEVELOPMENT 2014: CONSTRUCTION OF LEGAL GOVERNMENT

At the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China (CPC), the Decision of the Central Committee of the CPC on Some Major Issues concerning Deepening the Rule of Law 2014 was passed and delineated the direction for the research of our nation’s construction of a government under the rule of law. For years, the government at various levels and administrative agencies adhered to conducting work on the legal course under the CPC’s leadership, actively promoting administration according to law, and constructing a government under the rule of law, and have made enormous achievements. However, there many difficulties still co-exist, along with challenges and opportunities. By adopting theoretical and empirical research approaches such as data analysis, normative analysis, interviews and investigations, questionnaires, counter-measure research, and case studies, this article discusses and conducted systematic and in-depth research on the theoretical framework of the construction of a government under the rule of law from macroscopic, to microscopic aspects. This article outlined the basic contexts and realistic vision for China’s construction of a government under the rule of law, which can provide active implementation of the project of construction of government under the rule of law with a basis in theoretical reference.     

THE CONCEPTUAL BASIS OF PRIVACY STANDARDS IN CHINA AND ITS IMPLICATIONS FOR CHINA’S PRIVACY LAW

China has one of the longest histories of civilization in the world. In ancient China, civil disputes were solved by moral principles of Confucianism, called li (礼). Therefore, at the time of the emergence of li, privacy was indirectly protected to some extent. However, li also restrained the legal privacy protection at that time. Moreover, the substantial meaning of traditional protection for privacy is quite different from that in modern society. In consequence, it is difficult to postulate that there was legal protection for privacy in ancient China, though privacy had been indirectly protected by the theory of li. If the right to privacy is seen as a milestone in its evolution in modern society, the modern concept and protection of privacy emerged in China almost a century later than in some Western countries. 1 The first consideration for the protection of privacy in China was a judicial interpretation by the Supreme Court in 1988.2 Since then, China has been developing its own protection for privacy. This article is to explore privacy standards in both ancient and modern China with two main parts: (a) The first part discusses the privacy in ancient China, including traditional Chinese concepts of privacy, traditional Chinese protection for privacy, and its evaluation; (b) the second part examines the privacy standards and privacy protection in modern China.     

BURDEN OF PROOF AND PRIMA FACIE CASE IN WTO DISPUTES SETTLEMENT—A PERSPECTIVE OF CHINESE LAW

This paper discusses the concept of burden of proof and prima facie case,respectively,in WTO dispute settlement based on the legal doctrine on burden of proof in Chinese law.From the perspective of Chinese law,the burden of proof has three implications on two levels,namely the behavior burden of production and the behavior burden of persuasion in the procedural sense,and the result burden of bearing unfavorable consequence in its substantive sense.A prima facie case also includes the weaker account and the stricter account.They do not mean the same in different contexts,but what is the exact meaning thereof in a given context is clear.The real confusion of the burden of proof in WTO dispute settlement is prima facie standard which,in practice,to some extent,relies on the determination by the panel on case-to-case basis.     

AN EXAMINATION OF RETAIL CLIENTS’ INVESTOR SUITABILITY RULES IN THE COBS AND THE LESSONS FOR CHINA

Nowadays, the complexity of financial products makes it difficult for retail clients to identify investment risks, and there is an increasing tendency for firms, stipulated by the maximum profits, to recommend or enter into unsuitable transactions to or for retail clients while providing services of investment advice and portfolio management, which causes great losses to a significant number of investors. So, in the contemporary society, the investor suitability rules through which retail clients can purchase suitable financial products are the indispensable legal basis of investor protection. Currently, the regulations concerning investor suitability management in China have several problems, including the chaotic legal system, low effectiveness level and defective contents, which may make it difficult for suitability to be applied in justice and managed effectively. Since the UK’s investor suitability rules in the Conduct of Business Sourcebook that apply to retail clients whose contents include requirements of obtaining retail clients’ information, requirements of information to be provided to retail clients and criteria of assessing suitability are clear and comprehensive, the authors believe that the UK’s experiences can provide a great enlightenment for China to better investor suitability management rules, including integrating legal documents and optimizing effectiveness level, rationalizing application scope, adding criteria of assessing suitability and revising specific clauses.     

RECONCILING ENVIRONMENTAL PROTECTION WITH NATURAL RESOURCES TRADE IN INTERNATIONAL LAW: A PERSPECTIVE FROM CHINA — RARE EARTHS

This article intends to shed light on key legal issues that emerged from the recently released WTO Appellate Body’s adjudication over China — Rare Earths dispute, exploring possible policy options for China to reach its environmental goals on natural resources in a WTO-consistent manner. The article first spotlights positive variations in the Appellate Body’s interpretative approach regarding the applicability of GATT general exceptions to defend the violation of WTO-Plus commitments under China’s Accession Protocol; second, given the fact that the Appellate Body, pursuant to the elements inscribed in GATT Article XX(g), confirmed the Panel’s objective assessment based on the design and structure of the challenged measures of GATT, this paper provides reflections and recommendations on China’s domestic environmental legislation. The third part probes into the interface between the principle of permanent sovereignty over natural resources and the WTO legal regime, with an attempt to offer thought-provoking ideas on how to reconcile potential conflicts between the two.     

RULE FOR PREFERRED STOCK IN CHINA: OVERTHROW OF THE PRINCIPLE OF “EQUAL SHARES,EQUAL RIGHTS”? — FROM A COMPARATIVE PERSPECTIVE

The principle of “equal shares, equal rights” was established by the Company Law of 1993 of the People’s Republic of China. At the initial stage only issuance of common stocks was allowed and the issuance of preferred stocks was interpreted as prohibited. The Company Law of 2006 has changed the rigidity of provisions of the Company Law of 1993 and laid down the legal foundation for issuance of preferred stock. The Rule for Administration of the Pilot Project for Preferred Stocks released on March 21, 2014 by the China Securities Regulatory Commission started the issuance of the preferred stocks in the Chinese capital market. The establishment of the legal system for issuance of preferred stock in China is not the symbol of overthrowing the principle of “equal shares, equal rights,” but the expansion and development of the principle of “equal shares, equal rights” in a new era.     

THE APPLICABILITY OF ENVIRONMENTAL EXCEPTIONS OF THE GATT TO CHINA’S WTO-PLUS OBLIGATIONS — WTO PANEL AND APPELLATE BODY RULINGS ON THE CHINESE EXPORT RESTRICTIONS OF RARE EARTHS,TUNGSTEN AND MOLYBDENUM

On March 26, 2014, a panel, established by the WTO Dispute Settlement Body, circulated its final report regarding the China — Rare Earths case to WTO Members. This dispute concerns China’s export restrictions on rare earths, tungsten, and molybdenum. In its report, the panel agreed with the findings of another dispute, the China — Raw Materials case. It concluded that the environmental exceptions under Article XX GATT 1994 cannot be applied to China’s actions. This conclusion is reconfirmed in the latest appellate body’s report of China — Rare Earths on August 7, 2014. Therefore, China was not able to justify the violation of their WTO-plus obligation to eliminate all export duties, contained in paragraph 11.3 of China’s Accession Protocol. As a consequence of the panel’s decision, it seems impossible for China to justify trade barriers with environmental interests and to invoke any exceptions. Such findings are subject to a fundamental controversy within the WTO multilateral trade system, trying to solve the tensions between environmental protection and trade liberalization. This essay examines the general applicability of environmental exceptions by analyzing the panel’s and appellate body’s approaches to the China — Rare Earths case and their findings, in connection with the purpose of sustainable development as prescribed by the preamble of the WTO Agreement. It has to be examined whether the non-application of the WTO environmental exceptions complies with Article 31 Vienna Convention on the Law of Treaties and is consistent with the balance between the different values pursued by the WTO. This article argues that Article XX GATT 1994 should be applicable to China’s WTO-plus obligation specified in paragraph 11.3 of its Accession Protocol as far as environmental interests are concerned.     

“DAGGERING” AND THE REGULATION OF QUESTIONABLE BROADCAST MEDIA CONTENT IN JAMAICA

In 2008, a new style in Jamaican dancehall music and dance culture known as “Daggering” emerged. Daggering music and dancing, which included lyrics that graphically referred to sexual activities and a dance which has been described as “dry sex” on the dance floor, took Jamaica by storm. Unlike other dancehall traditions, however, Daggering went so main stream that both television and radio stations were airing audio and video recorded versions of the songs. The Broadcasting Commission of Jamaica was forced, because of the public controversy that evolved, to crack down on broadcasting and cable stations preventing them from playing any Daggering content. This article focuses on the subsequent clash between the government and the dancehall, and seeks to identify an appropriate method for monitoring and enforcing these new standards.