Frontiers of Law in China

ISSN 1673-3428

ISSN 1673-3541(Online)

CN 11-5742/D

Postal Subscription Code 80-981

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, Volume 11 Issue 2

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Orginal Article
EDITOR’S NOTE
JIANG Dong
Front. Law China. 2016, 11 (2): 201-203.  
https://doi.org/10.3868/s050-005-016-0011-5

Abstract   PDF (125KB)
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MAGNA CARTA 1215: A GLORIOUS FAILURE
Timothy Endicott
Front. Law China. 2016, 11 (2): 204-214.  
https://doi.org/10.3868/s050-005-016-0012-2

Abstract   PDF (181KB)

Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose (which was not to achieve responsible government but to preserve the property of wealthy landowners), its force (it was annulled by the Pope and repudiated by the king within a few weeks), and even its success as a peace treaty (war broke out within a few months). The author will outline the reasons for skepticism, because we can only see what there is to celebrate in 2015, if we understand that the Charter of 1215 was the failed result of a reactionary armed tax rebellion by wealthy and powerful landowners, who were not trying to make a new constitution. What is there to celebrate? The author will address that question by asking why the Charter of 1215 was neither void (as the Pope asserted) for repugnancy to the King’s authority, nor voidable for duress. The author challenges the idea that the Charter of 1215 is the foundation of the rule of law in England, arguing that the rule of law goes back farther, and that the Charter of 1215 was very limited in its impact. But it did promote the rule of law in two ways: by giving new specificity to legal duties and restrictions that the king had already been subject to, and by highlighting the country’s need for effective processes for giving effect to those duties and restrictions.

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MAGNA CARTA AND THE AMERICAN POLITICAL IMAGINATION: TWO INSTANCES OF HABEAS CORPUS VINDICATED
H. Robert Baker
Front. Law China. 2016, 11 (2): 215-235.  
https://doi.org/10.3868/s050-005-016-0013-9

Abstract   PDF (222KB)

Magna Carta has long been understood as a source of inspiration for the U.S. Constitution, and especially its enshrinement of the writ of habeas corpus — the right of any prisoner to test his or her detention according to the law. In the “Suspension Clause” of the U.S. Constitution (Article I, Section 8), Congress is granted permission to suspend habeas corpus only “when in cases of Rebellion or Invasion the public Safety may require it.” This article surveys two failed attempts by the U.S. government to suspend the writ of habeas corpus. The first (which was actually the very first such attempt) was in 1807 and followed revelations of the so-called Burr Conspiracy. The second (incidentally the most recent in American history) occurred during the War on Terror and culminated with the Supreme Court’s decision of Boumediene vs Bush in 2008. A close examination of these two historical episodes reveals just how different were the constitutional processes of the early republic and contemporary times. Additionally, comparing the uses of Magna Carta during the two episodes demonstrates marked changes in American political culture. Historical consciousness, vital to early Americans’ understanding of their political system, has shifted to an elite level. Likewise, the protection of fundamental liberties has migrated from the popular branch of government (Congress) to the elite one (the Supreme Court). This article considers the implication of this shift in both constitutional processes and historical consciousness.

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MAGNA CARTA AND THE FUNDAMENTAL RIGHT TO DUE PROCESS
Joshua C. Tate
Front. Law China. 2016, 11 (2): 236-242.  
https://doi.org/10.3868/s050-005-016-0014-6

Abstract   PDF (168KB)

The 800th anniversary of Magna Carta has been marked by much pageantry and celebration. Some scholars have taken this opportunity to point out that the myth of Magna Carta is far greater than what the actual 1215 Charter managed to accomplish. Nevertheless, Magna Carta did make a meaningful and concrete contribution to due process in 1215, as shown by certain provisions that are seemingly overlooked by critics eager to downplay the Charter’s importance. This article highlights two lesser known clauses of Magna Carta that had real contemporary significance in guaranteeing the availability of jury trial for some categories of civil litigation. The ringing promises of Clauses 39 and 40 may have inspired great jurists and founders of nations, but the more humble Clauses 17 and 18 — specifying the proper location and manner of hearing certain civil cases — must also be taken into account in assessing the Charter’s importance.

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TOWARDS A HUMAN DIGNITY BASED APPROACH TO FOOD SECURITY: LESSONS FROM CHINA AND INDIA
Nandini Ramanujam,Stephanie Chow
Front. Law China. 2016, 11 (2): 243-265.  
https://doi.org/10.3868/s050-005-016-0015-3

Abstract   PDF (253KB)

Despite almost halving the proportion of the world’s undernourished over the past two and half decades, the number of undernourished people in the world remains staggeringly high. Efforts to address the global state of food insecurity must target China and India, which are home to the world’s highest and second highest number of undernourished people. This article analyzes the comparative experiences of tackling food security in China and India and adopts an inter-disciplinary approach, which melds legal, economic, and human perspectives to food security. Both China and India have made concerted efforts to improve food security of vulnerable populations in the past three decades. These efforts have historically focused on actively promoting grain production, which has been largely successful in achieving grain self-sufficiency and securing adequate availability of food for their populations. However, the contemporary challenges to food security are now increasingly driven by unsustainable dietary patterns and are exacerbated by growing populations, increasing wealth, and the globalization of food supply chains. As a result, the cause of food insecurity is no longer fundamentally about food supply, but rather about the extent to which marginalized populations are empowered with the rights, freedoms, and capabilities that enable them to attain healthy and productive lives. China and India apply markedly different approaches to address the issue of people’s access to food. In India, the right to food movement has gained momentum through the work of civil society actors and there is now a legal right to food. In contrast, in China the right to food is neither stipulated in Chinese law nor referenced to in the official policy rhetoric as the country seeks to ensure access to food by focusing on poverty alleviation more generally through an income transfer program and a non-food based, social safety net to help the poor. At the same time, the Chinese population’s high educational level provides enormous potential for effective interventions and education on nutrition and health. A comparison of the approaches to food security in China and India ultimately reminds us that efforts to tackle food insecurity must center on human dignity, which requires more wide-ranging investment in enhancing people’s capabilities, combined with effective enforcement of the right to food.

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THE FIRST CENTURY OF MAGNA CARTA IN CHINA: AN ACADEMIC HISTORY FROM 1840’S TO 1940’S
JIANG Dong
Front. Law China. 2016, 11 (2): 266-279.  
https://doi.org/10.3868/s050-005-016-0016-0

Abstract   PDF (265KB)

Magna Carta was introduced into China around the mid-19th century under the context that learning from the West was then a trend for Chinese politicians and the academia to modernize China. The English constitutionalism originating from Magna Carta was considered as one of the models for China to reference. Even though the constitutional reform in the late Qing Dynasty failed to establish the constitutionalism in China, the strive for rule of law and democracy in China was never disrupted from then on. In the first century of Magna Carta’s introduction into China, the academia used the ideas of constitutional rights, the rule of law embedded in Magna Carta to influence constitutionality in China, especially to push forward the protection of human rights and democracy. Even though the constitutionalism was not finally established in the Republic of China, the research on Magna Carta inspired the idea of constitutionalism in China. In addition, the Chinese academia realized that what China should learn was the spirit of Magna Carta, and that the construction of Chinese constitutionalism shall be based on the context of Chinese history and culture.

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WHAT DOES ACCESS TO JUSTICE REQUIRE? — OVERCOMING BARRIERS TO INVOKE THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
Kevin M. Cremin
Front. Law China. 2016, 11 (2): 280-322.  
https://doi.org/10.3868/s050-005-016-0017-7

Abstract   PDF (396KB)

Persons with disabilities have a right to effective access to justice under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This article provides insights on the parameters of that right, including a close examination of the history and text of Article 13, which directly addresses access to justice and other relevant UNCRPD provisions. In addition to the UNCRPD, this article discusses implementation guidance from the Committee on the Rights of Persons with Disabilities, including its guidelines for State Party reports and jurisprudence. The initial reports by eleven States Parties — Argentina, Azerbaijan, China, Costa Rica, Croatia, Dominican Republic, Ecuador, Hungary, Mexico, Peru and Turkmenistan — are also considered. The Committee’s feedback regarding implementation of Article 13 by these eleven States parties is critiqued for being limited and inconsistent. This article then attempts to clarify what effective access to justice actually requires. It does so by focusing on the insights that can be drawn from implementation of Article 13 since the UNCRPD was adopted as well as implementation guidance from the Conference of States Parties, the International Disability Alliance, the World Network of Users and Survivors of Psychiatry and the National Center for Access to Justice. This article concludes with recommendations on how the Committee can improve its guidance on access to justice to help ensure that equal rights will not be illusory for persons with disabilities.

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A GOOD EXAMPLE OF PARENT ADVOCACY FOR RIGHTS IN INCLUSIVE EDUCATION IN CHINA
CUI Fengming
Front. Law China. 2016, 11 (2): 323-338.  
https://doi.org/10.3868/s050-005-016-0018-4

Abstract   PDF (221KB)

While children with disabilities experience exclusion and segregation in education, parents’ involvement has been very limited due to the lack of parent support in China. Negative attitudes toward disability in an environment deeply influenced by the individual model of disability thinking makes it crucial for parents to advocate for their children’s rights in inclusive education through collaborative and organized efforts. This article examines barriers obstructing disabled children’s rights in pursuing inclusive education, barriers parents face to advocate for their children, and the development of parent support. The author argues that equal and inclusive education for all has a broader social impact beyond disability rights to eliminate barriers and pursue dignity for all. In doing so, the author reveals existing structural inequalities facing inclusive education, encourages the momentum for future changes, and utilizes a good example of parent advocacy for a deeper and meaningful policy advancement to overcome discrimination on the basis of disability that causes segregation and exclusion in education. Recommendations include strategies for the construction of a support network for parents to play their important roles in advancing the rights of their disabled children in inclusive education.

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MEDICALLY ASSISTED HUMAN REPRODUCTIVE TECHNOLOGIES (ART) AND HUMAN RIGHTS — THE EUROPEAN PERSPECTIVE
Elisabeth Steiner,Andreea Maria Roşu
Front. Law China. 2016, 11 (2): 339-369.  
https://doi.org/10.3868/s050-005-016-0019-1

Abstract   PDF (329KB)

The present article examines how the progress of science, and in particular, medically assisted human reproductive technologies (ART) have provoked a revolution in the sphere of family relations, generating a series of ethical and legal conflicts. The article focuses on the European perspective, without ignoring the international sphere, given the globalization of the phenomenon. The emerging legal issues are analyzed through the filter of international human rights, not only an important aspect to take into consideration in the context of bioethics in general, but a “passage obligé” given that certain concepts find their explanation and coordinates in international human rights law. It is from this perspective that the relationship between ART and human rights is presented. The applicable international and European legal instruments and principles shall be mentioned, as well as a brief comparison of national legal frameworks in Europe. The emerging bioethical and legal issues are examined in correlation with the response of the European Court of Human Rights through its case law aimed at balancing conflicting rights when faced with issues pertaining to ART. Lastly, the article presents in more detail the particular legal issues under debate in France and Italy, two European countries with specific legislation in the field.

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CROSS-BORDER MERGER AND ACQUISITION OF CHINESE DOMESTIC LISTED COMPANIES
YANG Dong,HUANG Dingquan,YOU Jiahui
Front. Law China. 2016, 11 (2): 370-400.  
https://doi.org/10.3868/s050-005-016-0020-5

Abstract   PDF (301KB)

China’s reform of state-owned enterprises (SOEs) and share trading plays an essential role in cross-border mergers and acquisitions (M&A). Considering most of the public listed companies enjoying abundant domestic resources as an outcome of SOEs reform, as well as the new capital and innovative managerial conceptions that foreign M&A brings in, the SOEs and share-trading reforms are undoubtedly mutually beneficial. As the reforms deepen, rules are established that state-owned shares cannot be traded, given potential loss of state-owned assets, which creates a great plight for foreign M&A through directly purchasing tradable shares within China’s A share market. Therefore, share-trading reform progressed so as to convert non-tradable shares to tradable ones, which indeed provides many opportunities for foreign M&A. This article adopts case study and related empirical analysis methods. After systematic research on the cases of foreign M&A of listed companies in China that were transacted between 1995 and November 2012, and analyzing each respectively under the framework of the existing sixteen models in China, those models can be further classified into three categories concerning the unique share structure as well as the legal environment in China.

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11 articles