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RECOGNITION AND ENFORCEMENT OF FOREIGN NON-MONETARY JUDGMENTS IN CHINA
ZHANG Wenliang
Front. Law China. 2018, 13 (2): 218-240.
https://doi.org/10.3868/s050-007-018-0015-1
Transboundary recognition and enforcement of judgments is of increasing practical significance and it draws a great deal of efforts at various levels. However, the efforts already made are predominantly in relation to cross-border movement of monetary judgments, leaving non-monetary judgments beyond recognizability. Investigation into China’s legislation and adjudication reveals that there is no distinction made between recognition of monetary and non-monetary judgments, and practice also ignores such a distinction. Following the trend of embracing non-monetary judgments within the scope of recognizablility, China’s standpoint seemingly appears to be desirable, although the long-standing non-differentiation of monetary and non-monetary judgments is not presumed to be originally out of promoting recognition and enforcement of foreign non-monetary judgments in China. It is submitted that for promoting recognition and enforcement of foreign non-monetary judgments, China shall introduce independent rules in order to facilitate the circulation of such judgments, which merits a special treatment. For parties to seek the recognition and enforcement of such judgments, prior to any overhauling of the current legal regime, they have to follow China’s persisting general legal regime and judicial practice regarding recognition and enforcement of all categories of foreign judgments, and a special call is made for particular attention to the reciprocity requirement and due service requirement.
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AN EXAMINATION OF RETAIL CLIENTS’ INVESTOR SUITABILITY RULES IN THE COBS AND THE LESSONS FOR CHINA
ZHENG Weiwei, DING Yu
Front. Law China. 2018, 13 (2): 260-290.
https://doi.org/10.3868/s050-007-018-0017-5
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.
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A COMPARATIVE STUDY OF THE CHINESE LAW OF CONSTRUCTIVE DELIVERY FROM AN ENGLISH COMMON LAW PERSPECTIVE
WU Zhicheng
Front. Law China. 2018, 13 (2): 291-308.
https://doi.org/10.3868/s050-007-018-0018-2
All three forms of constructive delivery, namely, traditio brevi manu, traditio longa manu, and constitutum possessorium exist in both Chinese law and English law with notable differences in each form. As regards traditio brevi manu, the current unique requirement of the transferee’s prior possession being “legal” under Chinese law cannot be found in or deduced from its English counterpart. As regards traditio longa manu, the major difference between the two jurisdictions is that the third-party possessor’s attornment is necessary condition for a valid traditio longa manu in English law whereas it is not in Chinese law. As regards constitutum possessorium, while English law accepts a wider scope of scenarios than Chinese law, passing of property in English law by way of constitutum possessorium is only effective between the parties themselves but not viz a viz third parties whereas it is effective in both respects in Chinese law. Compared to a mess in English law regarding the issue of symbolic delivery, the simple, clear and negative attitude towards symbolic delivery in Chinese law is to be applauded, and is to be regarded as a Chinese voice that should be insisted on and be brought into the upcoming Book of Property of the Chinese Civil Code.
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9 articles
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