Frontiers of Law in China

ISSN 1673-3428

ISSN 1673-3541(Online)

CN 11-5742/D

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, Volume 6 Issue 2

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Management of Legal Information in an International Context: A Conundrum of Challenges and Opportunities
Joan Howland, Chang Wang
Front Law Chin. 2011, 6 (2): 165-179.  
https://doi.org/10.1007/s11463-011-0123-7

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Evolving technologies have created many exciting opportunities to increase the availability of legal information, and to facilitate the organization and publication of this information. With the globalization of almost all legal issues, increased access to primary and secondary resources in electronic format across jurisdictional lines has been a welcomed development by academics, lawyers, international business entities, and others. However, the myriad of legal systems and approaches to maintaining legislative and judicial records has led to a host of challenges in regard to coherent and efficient management of legal information. Focusing on development of legal information systems in China and the United States, this paper will open with a summary of the exciting current and emerging technological advances in legal research methodologies and in the electronic publication of cases, statutes, regulations and other critical resources. The paper will then analyze corresponding challenges, including authenticity, accuracy, currency and consistency. The analysis will include discussion of the varying quality of legal information resources proliferating in the Internet, as well as the host of issues surrounding electronic publishing of legal information by government entities and commercial enterprises. The paper will conclude with a prospective analysis of the manner in which emerging technologies can enhance knowledge management of legal information and strengthen legal systems in both common law and civil law jurisdictions.

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The Review of the Development of Legal Science in China (1949–2009)
Duojun Qi
Front Law Chin. 2011, 6 (2): 180-191.  
https://doi.org/10.1007/s11463-011-0124-6

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The legal science of the People’s Republic of China has experienced the stages of formation, reinstating and innovation over the past 60 years. Today, the legal field is flourishing. While the construction of different branches of law has been accomplished, there is still a long way to go in realizing democracy and rule of law in China. Jurists need to develop a heightened awareness of their social responsibility and the urgency with which to adapt the development of law to Chinese societies. Only under these circumstances can we effectively promote democracy and rule of law in China.

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Tax Planning and Tax Policy in China: Case Study of the Tainted Milk Scandal
Duoqi Xu
Front Law Chin. 2011, 6 (2): 192-218.  
https://doi.org/10.1007/s11463-011-0125-5

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No food safety crisis has ever stirred such a national sensation in China like the tainted milk powder scandal in 2008. A further exploration of the root cause of this crisis, however, reveals something more disturbing—it is the undeveloped tax system that causes the melamine milk crisis. Because of the tension between political logic and governance logic of tax reform in China, the vacuum of public good provision becomes a burning issue since the Agricultural Tax Regulation was abolished and farmers’ economic burden became heavier than before. Thus, in order to prevent any food safety incident in the future, a sound notion of tax and an integrated system of tax planning and expenditure should be established and reinforced in the Chinese tax law.

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ATCA as an Avenue of Overseas Environmental Protection and Its Implication to China’s Overseas Investors
Xiuli Han
Front Law Chin. 2011, 6 (2): 219-240.  
https://doi.org/10.1007/s11463-011-0126-4

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The U.S. federal courts have civil jurisdiction over some torts claims with respect to the violations of law of nations or treaties concluded by the U.S. under the Alien Tort Claims Act (ATCA). Although the applicable scope of ATCA is very narrow from a historical perspective, it has extended much broader nowadays. Seeking remedy for environmental damage under ATCA is difficult, but ATCA is playing an important role in indirectly protecting overseas environment. Under the circumstances, China’s overseas investors who are causing serious environmental problems in developing countries and have direct investment or operation in the U.S. could be subject to the U.S. courts’ jurisdiction.

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The ASEAN-China Investment Agreement: A Regionalization of China’s BITs
Jun Xiao
Front Law Chin. 2011, 6 (2): 241-258.  
https://doi.org/10.1007/s11463-011-0127-3

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This paper analyzes the provisions of the Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation between China and the Association of Southeast Asian Nations (the “ASEAN”), especially those on the scope of application, national treatment, Most Favored Nation (MFN) treatment, expropriation, and investor-state dispute resolution. The paper then compares the new agreement with other international investment agreements concluded by China or ASEAN. In comparison with existing Bilateral Investment Treaties (BITs) between China and individual ASEAN member states, there are significant changes in the Investment Agreement which provides a higher standard of investment protection. Such an investment protection is common in the new generation of Chinese BITs, which were signed by China since 2000. However, unlike some other investment agreements in free trade arrangements, the Investment Agreement rarely touches upon the investment liberalization, although the Framework Agreement of ASEAN-China FTA provides for creating a liberal investment regime. This paper concludes that negotiating an investment agreement in China’s Free Trade Agreements (FTAs) is regarded as an opportunity to update its old BITs, but China is not yet prepared to undertake investment liberalization in its FTAs. The ASEAN-China Investment Agreement is, rather, an extension of China’s BITs at the regional level, which is a demonstration of China’s growing influence at this level.

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Corporate Governance of Chinese State-Controlled Listed Companies: Evidence from the Exit of Chinese Domestic Venture Capital
Lin Zhang
Front Law Chin. 2011, 6 (2): 259-283.  
https://doi.org/10.1007/s11463-011-0128-2

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The existing literature on the corporate governance of Chinese state-controlled listed companies (SCLCs) focuses more on agency costs. There is inadequate attention being paid to its adaptive efficiency through the standard of venture capital (VC). This paper tries to fill this gap on the basis of the evidence from the exit of Chinese domestic VCs. The existing research has proved that the availability of stock market as an exit is essential for the vitality of a country’s VC industry. Unfortunately, with the institutional barriers imposed by the control-based model of the SCLCs, the exit ways of Chinese domestic VCs via stock market are still uneven. The implication from this study is that adaptive efficiency and agency costs are equally important factors which ought to be considered when any reform proposals for the corporate governance of the SCLCs are put forward. While either of the two factors is neglected in this process, the overall efficiency is to be jeopardized.

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Study on the Financial Supervision and Anti-Monopoly Regulation of Integration of Industry and Finance - in View of Confronting Global Financial Crisis and Mitigating Domestic Financial Risks
Jin Sun
Front Law Chin. 2011, 6 (2): 284-315.  
https://doi.org/10.1007/s11463-011-0129-1

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With governmental loose control in the major global economies since 1980s, the integration of industry-finance capital generates group companies. The integration of industry and finance (hereinafter as the “IIF”) is on the way to gradually become the mainstream of the world. It is needed to reconsider the IIF in light of the current global financial crisis. The IIF expands economic scale and increases efficiency, bringing two challenges in practice: financial risk overlay and anti-competition of the market power. What is more, the formation and abuse of market power will amplify the effect of risk overlay. To mitigate financial risks and protect market competition and to improve the regulation of the IIF, it is needed to improve both financial supervision and anti-monopoly regulation, as both are crucial.

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Research on the Judicial Review and Variation of Sentence for the Death Penalty with a Suspension of Execution in Chinese Criminal Law
Haiyan Wang
Front Law Chin. 2011, 6 (2): 316-331.  
https://doi.org/10.1007/s11463-011-0130-8

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The imposition of a death penalty with a suspension of execution (DPSE) for two years, and the procedure for judicial review of the DPSE both demonstrate the Chinese policies of “reduction in use of the death penalty,” “cautious application of the death penalty,” and “tempering justice with mercy.” In recent years, the number of cases in which the defendant was sentenced to death and immediately executed has declined, whereas the number of cases in which a DPSE sentence was given has increased. In China, judicial theory and practice generally emphasize the importance of the judicial review procedure in cases where the sentence is a death penalty with immediate execution. However, less attention has been paid to the procedures for review and variation of sentence in DPSE cases. Judicial review for DPSE sometimes exists in name only, and is sometimes overlooked altogether, which is inappropriate for a penalty of this severity. There are also serious shortcomings in the laws regulating the review procedure for the DPSE, which lack provisions specifying the consequences for serious violations of due process during trial, nor do they completely reflect the principle of in dubio pro reo. In the procedure for variation of the DPSE sentence, the relevant laws do not adequately uphold the defendant’s right to a defense or participation in the process. There are also difficulties regarding the time limits on ruling on a commutation of sentence. In order to make the procedure more reliable and guarantee the substantive rights of defendants sentenced to the DPSE, the relevant laws require a number of modifications and improvements.

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GPS Tracking and the Right of Privacy
Jianmei Cen
Front Law Chin. 2011, 6 (2): 334-342.  
https://doi.org/10.1007/s11463-011-0132-6

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Government authorities and law enforcement agencies start using the satellite-based GPS tracking technology more often for various purposes. Due to its unique technical features, GPS tracking poses a much greater threat to the right of privacy compared with traditional electronic tracking techniques, such as the Beeper. Comparisons are extensively analyzed and a number of the US cases are quoted for illustrations. In the end, several key principles are proposed to facilitate the supervision of investigation behaviors in China.

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