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1
Son, Bui Ngoc. "Constitutional Mobilisation in China." International Journal of Law in Context 14, no. 3 (May 15, 2017): 335–52. http://dx.doi.org/10.1017/s1744552317000222.
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AbstractThis paper examines recent constitutional mobilisation in China, embodied in the weiquan (right defence) movement, Charter 08 and the 2013 constitutionalism debate. It contrasts Chinese and Vietnamese experience of constitutional mobilisation. This paper argues that constitutional mobilisation in China presents both convergence and divergence with those in Vietnam. The convergence stems from domestic dynamics, the impact of globalisation and the shared features of socialist/communist institutional settings. The divergence is due to Chinese constitutional exceptionalism and Vietnam's instrumentalist approach to global constitutionalism. Particularly, without necessary constitutional opportunity created by the constitution-making process, constitutional mobilisation in China has not created a national constitutional dialogue as has happened in Vietnam. This paper draws attention to the new function of socialist constitutions as a frame for social mobilisation and has general implications for the comparative inquiry into the social dynamics of constitutional law.
2
Li, Ling, and Wenzhang Zhou. "Governing the “Constitutional Vacuum” – Federalism, Rule of Law, and Politburo Politics in China." China Law and Society Review 4, no. 1 (November 21, 2019): 1–40. http://dx.doi.org/10.1163/25427466-00401001.
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By focusing on the underlit corners of authoritarian governance in China, this article challenges the thesis that constitutions matter to authoritarian regimes because they provide solutions for problems of governance. We argue to the contrary: the constitution appeals to the Chinese Communist Party (the Party or the ccp) because it does not provide solutions to fundamental issues of governance. Instead, such issues are kept out of the constitution so that they can be addressed by the Party through other regulatory mechanisms outside of the constitutional realm. In support of our thesis, we provide a unique review of the most up-to-date authoritative research on three key constitutional issues: central-local relations, party-state relations and power relations in the Politburo. These three issues correspond to three distinctive fields in China studies that were treated only in isolation but here we consider them together under the single framework of authoritarian constitutional governance.
3
Choi, Sungkyoung, Sanghyun Park, and So Yoon Kim. "A Comparative Study on the Constitutional Right to Health in the Western Pacific Region Countries." Asia Pacific Journal of Public Health 30, no. 5 (July 2018): 458–69. http://dx.doi.org/10.1177/1010539518789351.
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We examined the constitutional provisions on the right to health in the Western Pacific region countries and compared universal health coverage (UHC) achievement. In 9 of the 11 countries, the constitution had provisions related to health rights, of which 7 countries also included details related to the health care system. Additionally, 5 countries also had provisions for the vulnerable. The countries with weak state obligation and no clear provisions on health rights (China and Laos) all recorded low UHC achievement scores. Australia and Malaysia, which do not have constitutional provisions regarding health, have achieved high UHC achievement scores. Constitution is the supreme law of a country and the basis for developing and implementing health and medical laws and policies. In addition, laws or constitutions that regulate the rights to health can help gain access to health care. Follow-up research related to the constitutional right to health will be needed.
4
DYACHKOVA, Victoria Aleksandrovna. "Constitutional Control in People`s Republic of China. Confucian Influence and Implementation." Journal of Constitutional Justice 2 (April 18, 2024): 33–39. http://dx.doi.org/10.18572/2072-4144-2024-2-33-39.
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The article examines the historical stages of the development of the constitutional control of the People’s Republic of China, beginning with the Republic of China and the confrontation between the two parties — the Kuomintang and the Communist Party of China. In this regard, it provides an overview of the legal status and competence of the Council of Great Judges of the Trial Chamber, as well as a description of the procedure of the body under Taiwan law. Some features of the structure and content of the Chinese constitutions in their dynamics are further revealed. In 2018, the Constitution of the People’s Republic of China (hereinafter — PRC) was amended, including the Preamble, which now proclaims the direction of socialist culture based on the dualism of moral and legal norms, and perfection of the mechanism of application of the Constitution is one of the vectors of development of the Chinese version of the «legal state». So now we can see how China’s legal world is changing. The article concludes that Chinese constitutional control in its modern form does not function effectively due to a number of institutional and cultural reasons.
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IP, Eric C. "Prototype Constitutional Supervision in China: The Lessons of the Hong Kong Basic Law Committee." Asian Journal of Comparative Law 10, no. 2 (December 2015): 323–42. http://dx.doi.org/10.1017/asjcl.2016.2.
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AbstractRecurrent proposals to establish a constitutional supervisory committee have been pertinaciously rejected in spite of widespread recognition of the Chinese Constitution’s ineffectiveness. And yet, the Hong Kong Basic Law Committee has long epitomized in practice a prototypic form of constitutional supervision. Vested with quasi-judicial competences, the Committee seemed destined for a central role under the “One Country, Two Systems” arrangement. The tight secrecy imposed on its proceedings and the suppression of its potential to act consistently and with a distinct identity have fatally undermined the Committee’s ability to modulate constitutional tensions by way of coordinating expectations of the Basic Law’s proper meaning. The experience of the Basic Law Committee reveals the recalcitrance of the Party-state toward constitutional interpretation by any specialized body, even one whose powers are heavily circumscribed and whose membership is tightly controlled.
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JHAVERI, Swati. "Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China." Asian Journal of Comparative Law 13, no. 1 (December 14, 2017): 27–57. http://dx.doi.org/10.1017/asjcl.2017.21.
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AbstractThe question of whether constitutional law can protect, consolidate, and advance democracy has been considered extensively in multiple jurisdictions. The issue has not yet been considered in the context of one of the most problematic contemporary democratic transitions: Hong Kong’s, from an externally governed colonial outpost to a self-governed suffrage-based special administrative region of the People’s Republic of China. The Basic Law of Hong Kong proposes the eventual election of the Legislative Council and Chief Executive of Hong Kong by some form of universal suffrage. These provisions are at the core of the ‘democratic constitution’ of Hong Kong. Achieving this goal requires consensus between the executive in Hong Kong, members of the Legislative Council in Hong Kong, and the legislative body of the People’s Republic of China. Although not a formal constitutional requirement, any democratization efforts will also require popular buy-in from Hong Kong residents in order to function effectively. However, it is increasingly clear that the views of all concerned do not converge on how and when these constitutional aspirations should be realized. In addition, all parties have started moving outside of this constitutional framework when deliberating issues of political reform. This article looks at the problems in the constitutional design of the Hong Kong Special Administrative Region that have resulted in this political deadlock. The article will then look at one solution to mitigate the effect of these design issues and to move forward again on the issue of reform: ‘litigating’ the democratic constitution in the courts. The article discusses the advantages of the courts in the process: primarily the capacity of the courts toreconstitutionalizepolitical debate on electoral issues. This article evaluates the largely unsuccessful use of the courts thus far by Hong Kong residents to correct and advance political reform. It considers possible reasons for the high failure rate in courts and proposes alternative litigation strategies that can better utilize the position of the courts to re-orient all parties to the Basic Law.
7
Zhang, Q. "A constitution without constitutionalism? The paths of constitutional development in China." International Journal of Constitutional Law 8, no. 4 (October 1, 2010): 950–76. http://dx.doi.org/10.1093/icon/mor003.
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Yurkovskiy, Alexey. "Interests in the Constitutional Law of the People›s Republic of China and the Interests of Constitutional and Legal Regulation: An Estological Study." Academic Law Journal 24, no. 1 (March 27, 2023): 31–40. http://dx.doi.org/10.17150/1819-0928.2023.24(1).31-40.
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The publication examines the trends in the development of the current constitutional law of the People’s Republic of China, the formation of the national mechanism of legal regulation and the mechanism of state power. In the course of the study, as a result of applying the latest author›s methodology and research technology (estological analysis of the mechanism of constitutional and legal regulation and the mechanism of state power), authentic documents (sources of law, acts of interpretation of law, acts of implementation and application of law) of the PRC were collected. At the same time, the regularities of the existence of the interests of constitutional law as a social phenomenon and the interests of constitutional and legal regulation in the People’s Republic of China, which are immanently connected with the formation and functioning of the mechanism of state power in the respective country, were subjected to knowledge. The relationship of constitutional values and anti-values, fixed in the matter of the constitutional law of the People›s Republic of China with each other, allows us to consider determining the interests of positive constitutional law, the legal features of the development of the political system of the People’s Republic of China, the mechanism of state power and the objective characteristic features of the mechanism and process of legal regulation in the state in question. When conducting an estological analysis, the presence of a phenomenology of the interests of constitutional legal and legal regulation, corresponding to the signs of positive law and the mechanism of state power, is revealed. Signs of positive law determine the specifics of legal regulation and determine the peculiarities of the functioning of the mechanism of state power of the PRC. The subjects and their interests, legalized in the constitutional law of the People’s Republic of China, individualize the specifics of the objective legal and administrative reality of the People’s Republic of China, defining its unique outlines and manifestations.
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Lu, Sentong. "On Constitutional Law Grounds of the State Policy in the PRC." Legal education and science 10 (October 8, 2020): 28–34. http://dx.doi.org/10.18572/1813-1190-2020-10-28-34.
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Purpose. Scientific justification of the idea on the acknowledgment of the role of priority basic constitutional principles as grounds for the constitutional law regulation of the state policy in the PRC. Methodology: dialectics, hermeneutics, synergetics, philosophical conceptology. Conclusions. Holding a discussion on the approaches of the modern comparative linguistics to the identification of the development principles of the Chinese legal system, the author suggests referring the Chinese legal system to the socialist one with national peculiarities, historical succession, Chinese traditions occupying an important place in the development of the socialist principle of democratic centralism of the Communist Party of China. The author notes that the key constitutional principles of organization of government in the PRC are established and developed using the elements of two legal families (far eastern, socialist) and taking into account the Chinese specifics of the ideological origination and development of the Communist Party of China based on the ideas of K. Marx, V. I. Lenin, Chinese leaders and other supporters of the democratic centralism principle. Based on the provisions of the first chapter of the Constitution of the PRC, the author singles out 32 categories of the key principles of the constitutional law formation of the Chinese state directly or indirectly forming the powers of government authorities, state policy fundamentals. Scientific and practical significance. The conclusions of the article are aimed at systematization of the key constitutional principles of organization of government in the PRC classified into: basic, economic, social, law enforcement, administrative-territorial and additional ones. The priority basic principles singled out by the author are designed to form the grounds for the constitutional law regulation of the state policy.
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Nevinskij, V. V. "THE MAIN TRENDS OF THE CONSTITUTIONAL AND LEGAL REGULATING THE CHINESE PEOPLE’S ECONOMY REPUBLICS AT THE TURN OF THE ХХ AND ХIХ CENTURIES". Courier of Kutafin Moscow State Law University (MSAL)), № 1 (7 квітня 2021): 81–89. http://dx.doi.org/10.17803/2311-5998.2021.77.1.081-089.
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The article examines the essence and the main trends of constitutional and legal regulation of the Chinese economy at the turn of the 20th and 21st centuries. One of the obvious consequences along the way is the tendency to revive and enhance the role of “socialist law with Chinese specificity”. In the era of reform, the 1982 Constitution of the People’s Republic of China and the laws as the basis of the legal regulatory mechanism in various spheres of Chinese society, including the economy, are important. The peculiarities of building China’s legal system, including the reasons for a small share of state laws, are revealed. The analysis of amendments to the Constitution of the People’s Republic of China allows us to see the main features of the consistent development of constitutional and legal regulation of economic relations “with Chinese specificity” expressed by the constitutional principle of the “socialist market economy.”
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Ollick, Stephan F. H. "Taking Embodiment Seriously: Constitutional Law, the Economy and the Forms of Underdeterminacy." Max Planck Yearbook of United Nations Law Online 23, no. 1 (December 3, 2020): 290–313. http://dx.doi.org/10.1163/18757413_023001010.
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Economic policy does not require a constitutional grounding. However, many constitutions expressly dedicate articles and chapters to the national economy while others produce comparable effects by indirectly privileging particular economic arrangements. The constitutions of the US, the People’s Republic of China and the Philippines and the Basic Law of Hong Kong can plausibly be invoked to justify State approaches to economic ordering. However, each of them essentially underdetermines the economic fundamentals of the polity, not merely by deferring their concretization to governments and judiciaries, but by eschewing to commit the State to an identifiable level of involvement. Underdeterminacy can result from a variety of structural features, such as omissions, the use of contested concepts, the dilution of overarching economic alignments through countervailing constitutional provisions or limitations by ordinary legislation and the assortment of amorphous constitutional repertoires that give free rein to policy. The fact that even constitutions that were in their drafting informed not least by economic considerations fail to set the basic parameters of the economic arena queries the extent to which they can be said to embody any such underpinnings. It further questions the significance of constitutions and formal institutions in the formation of liberal market economies in particular and emphasizes the role of experience.
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Yung, Tim. "Keeping up with the Chinese: Constituting and Reconstituting the Anglican Church in South China, 1897–1951." Studies in Church History 56 (May 15, 2020): 383–400. http://dx.doi.org/10.1017/stc.2019.21.
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When Anglican missionaries helped to constitute the Chinese Anglican Church (Chung Hua Sheng Kung Hui) in 1912, they had a particular expectation of how the church would one day become self-supporting, self-governing and self-propagating. The first constitution crafted by missionary bishops presupposed an infant church that would require the step-by-step guidance of its parent association. However, the intended trajectory was superseded by the zeal of Chinese Christians and drastic changes in the national government of China. The constitutional basis of the Chinese Anglican Church had to be restructured fundamentally again and again due to political upheaval in republican China, the Japanese occupation and the Communist revolution. This article explores the difficulties of crafting and implementing church constitutions in China in the first half of the turbulent twentieth century. Focusing on the South China diocese, wider questions are posed about the formation of canon law in an age of extremes.
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Liu, Han. "Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in Contemporary China†." American Journal of Comparative Law 68, no. 1 (March 2020): 95–150. http://dx.doi.org/10.1093/ajcl/avaa009.
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Abstract American constitutional law haunts the contemporary Chinese constitutional imagination. China’s reception of American constitutional law occurred in two major stages. In the first stage, which spanned from the 1980s to the early 1990s, Chinese intellectuals understood American constitutionalism as a particular political regime to be politically criticized or objectively appraised, with the tripartite separation of powers overwhelmingly highlighted as a core feature of the American constitutional-political system. In the second stage, which began in the late 1990s, a paradigmatic shift from a political, regime-centered perspective to a legalized, court-centered approach occurred in China’s introductions to and studies of American constitutionalism. The U.S. Supreme Court and the concept of judicial review now primarily preoccupy most Chinese constitutional minds; these features of the American system have formed the focal points of reference for Chinese constitutional reform. This shift from the first stage to the second reflects both ideological and social changes since the economic reform in China, as well as international impacts.
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Liu, Zheyuan, and Ruofei Zhao. "A brief analysis of several principles embodied in the German constitutional system and its development context." BCP Social Sciences & Humanities 19 (August 30, 2022): 175–80. http://dx.doi.org/10.54691/bcpssh.v19i.1602.
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Different economic conditions, national system, social background, humanities and other factors all influence the formation of law. Today's legal system is mainly divided into civil law system and common law system, civil law system and common law system not only in the legal system, but also the understanding of the field of public law. China's current legal system is more similar to the continental law system, so this article is set in Germany. The historical evolution of Germany in the field of public law largely reflects the legal philosophy and mechanism of the original Roman law system, and the change of its constitution and some legislative considerations reflected in the administrative law are worth further study. Especially on the constitutional interpretation of the law, theoretically China and Germany and other civil law countries are similar. This paper analyzes the formation process, development and basic principles of German constitution and administrative law system from legal and historical perspectives.
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Amandykova, L. K. "Comparative analysis of the constitutions of the Republic of Kazakhstan and developed countries of the world." Bulletin of the Karaganda University. “Law Series” 112, no. 4 (December 30, 2023): 33–37. http://dx.doi.org/10.31489/2023l4/33-37.
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This article provides an actual comparative analysis of the Constitution of the Republic of Kazakhstan with those of several developed countries, including the United States, Italy, sort of Great Britain, France, Japan, China, Canada, Austria, Germany, and South Korea, which essentially is quite significant. The article examines the similarities and differences in the design and structure of these constitutions, focusing on aspects fairly such as the separation of powers, kind of human rights protections, and the role of the executive branch, which is quite significant. The article concludes that while there essentially are really common elements that can generally be identified across constitutions, such as the establishment of checks and balances and the protection of fundamental kinds of human rights, the specific arrangements may vary depending on historical, cultural, and political factors, which actually is fairly significant. The analysis highlights the importance of ensuring that constitutional arrangements strike a balance between the concentration and distribution of power and specifically safeguard fundamental human rights and freedoms. Ultimately, the effectiveness of any constitutional system depends on its ability to literally adapt to changing circumstances and kind of meet the real needs and expectations of its citizens in a major way. This article provides a useful resource for scholars and policymakers for all intents and purposes interested in basically comparative constitutional law and provides insights into the factors that shape constitutional design and structure in a basically major way. Furthermore, the article specifically sheds light on the definitely unique features and context of the Constitution of Kazakhstan, which provides for a strong parlament with extensive executive powers, in contrast to the presidential and federal systems of government actually found in basically many particularly other countries, which really is quite significant
16
Alekseenko, Aleksandr P. "The Establishment of the Supervisory Government in China." Constitutional and municipal law 1 (January 28, 2021): 74–77. http://dx.doi.org/10.18572/1812-3767-2021-1-74-77.
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This paper examines amendments to the Chinese Constitution made in 2018, concerns the establishment of supervisory commissions. The Supervision Law of the PRC which develops Constitutional provisions is also studied. The author analyzes legal status of the State Supervision Commission and local supervision bodies. There is made a conclusion that abovementioned bodies have broad powers in the field of extra-judicial struggle against corruption. Moreover, it is argued that supervision bodies are not under control of administrative and judicial bodies of the PRC, and that they are responsible to the people’s congress only. Despite of the fact of supervision bodies’ independence they are welded with Central Commission for Discipline Inspection. Therefore, these bodies give the Chinese Communists Party additional tools of influence on Chinese society.
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Edelman, Bryan, and James T. Richardson. "Falun Gong and the Law: Development of Legal Social Control in China." Nova Religio 6, no. 2 (April 1, 2003): 312–31. http://dx.doi.org/10.1525/nr.2003.6.2.312.
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In 1999 the government of the People's Republic of China (PRC) labeled Falun Gong an "evil cult" and began a campaign to eliminate the qigong movement of which it was a part. The West was quick to condemn the PRC's action as a violation of human rights. In response, the PRC government criticized the West for interfering in its internal affairs, and using "human rights" as an excuse to impose its will upon the PRC. Rather than formulating an attack on the PRC government using Western principles of democracy, human rights, and the rule of law, this article analyzes the legality of the PRC's campaign against Falun Gong within the framework of the legal and political systems developed in the PRC Constitution, other relevant documents and international treaties to which the PRC is a signatory nation. It is argued that the PRC government acted outside of its constitutional authority, violated citizens' basic rights, and overstepped its own boundaries in its war against Falun Gong and its practitioners.
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Peerenboom, Randall. "Law and Development of Constitutional Democracy: Is China a Problem Case?" ANNALS of the American Academy of Political and Social Science 603, no. 1 (January 2006): 192–99. http://dx.doi.org/10.1177/0002716205281505.
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van Alebeek, Rosanne, and Ursula E. A. Weitzel. "Constitutional and Institutional Developments." Leiden Journal of International Law 13, no. 2 (June 2000): 339–40. http://dx.doi.org/10.1017/s0922156500000236.
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On 7 February 2000 Judge Gilbert Guillaume (France) was elected President of the International Court of Justice (ICJ) by his peers. He has been a member of the Court since 14 September 1987. Judge Shi Jiuyong (China) was elected Vice-President. He has been a member of the Court since 6 February 1994. They will both serve a three-year term.
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Trabucco, Fabio Ratto. "The Curtailment of Constitutional Rights and Mechanisms of Social Control in The People's Republic of China: Hubei Province Case at The Onset of The Covid-19 Pandemic." Indiana Journal of Global Legal Studies 30, no. 1 (2023): 333–51. http://dx.doi.org/10.2979/gls.2023.a886170.
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Abstract: This paper analyzes the curtailment of constitutional rights arising from the implementation of emergency measures due to the COVID-19 pandemic in China's Hubei Province, which was not at all counterbalanced by introducing new forms of due constitutional protection. Likewise, high expectations cannot be set on pre-existing means of constitutional safeguards since the Chinese government clearly refused to establish new or different safeguarding procedures nor did it deem it necessary to establish ad hoc courts in order to tackle the COVID-19 pandemic. The paper is laid out as follows: (1) fundamental rights in a contemporary socialist state: an overview; (2) containment measures against COVID-19 and flexibility of constitutional right;. (3) the centrality of governing bodies and restrictions of constitutional rights; (4) territorial governance and centralization of containment measures against COVID-19; (5) between soft law and totalitarian propaganda; and (6) the ubiquity of the Communist Party of China and the "alignment" of judicial functions.
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Troshchinskiy, P. "Fighting Corruption in China Under Xi Jinping." World Economy and International Relations 67, no. 12 (2023): 49–59. http://dx.doi.org/10.20542/0131-2227-2023-67-12-49-59.
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Corruption has been a part of Chinese society throughout its existence. The fight against corruption is one of the most important work directions of the Chinese Communist Party and the law enforcement system. After the 18th National Congress of the CPC (November 2012) and the election of Xi Jinping as General Secretary of the CPC Central Committee, the anti-corruption efforts have reached a new and higher level. Xi Jinping initiated constitutional reform by establishing a single constitutional anti-corruption body, the National Control Committee, with extensive law enforcement powers; it was formed from the Ministry of Control (a State Council’s organ), the National Bureau of Corruption Prevention (a State Council’s organ) and the departments of the People’s Procuratorates for combating corruption, bribery, and malfeasance. A reformatting of the entire anti-corruption system has taken place. The Central Commission for Discipline Inspection is no longer empowered to perform anti-corruption law enforcement functions, but rather should concentrate on controlling party discipline. At the same time, the overall control of the anticorruption fight still remains in the hands of the CPC. In addition to creating a new constitutional control authority, Xi Jinping intensified ideological education and launched a campaign for the total digitalization of the judiciary, law enforcement, finance, and banking, etc. In this way, the efficiency of control over the revenues and expenses of officials and businesses is increased. Under Xi Jinping, anti-corruption educational efforts have been enhanced by the number of documentaries and feature films about the government’s success in combating corruption. The series “In the Name of the People” (2017) was especially popular among the citizens. In Russia, unlike modern China, there is no unified body in the field of combating corruption. The fight against corruption in Russia is the responsibility of the prosecutor’s office and its own security services. From this point, low efficiency of the anti-corruption system is obvious. The experience of China in the investigated area is extremely relevant and significant both in practical and theoretical terms for domestic science and practice.
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Husa, Jaakko. "Constitutional Biography of Hong Kong and Ambiguities of One Country, Two Systems Policy." Chinese Journal of Comparative Law 9, no. 2 (September 1, 2021): 268–87. http://dx.doi.org/10.1093/cjcl/cxab014.
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Abstract This essay reviews Albert Chen’s ‘The Changing Legal Orders in Hong Kong and Mainland China: Essays on One Country, Two Systems' (2021). The aim is to address the most significant points raised by the author of the book and provide a readable and critical synthesis of Chen’s key arguments. The focus is on the background of the tension points between China and Hong Kong that are generated by the One Country, Two Systems policy. The article ends with discussion on the book’s contribution and the possible future of Hong Kong’s common law heritage as a part of China.
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Kellogg, T. E. "Constitutionalism with Chinese characteristics? Constitutional development and civil litigation in China." International Journal of Constitutional Law 7, no. 2 (March 16, 2009): 215–46. http://dx.doi.org/10.1093/icon/mop001.
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Malysheva, N. I. "Legitimation, Legitimacy and Legality of Law in the Chinese Legal System." Russian Journal of Legal Studies 5, no. 2 (June 15, 2018): 152–57. http://dx.doi.org/10.17816/rjls18416.
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The article analyzes the problems of legitimation, legitimacy and legality of law in the light of the Chinese legal system. It is noted that the above theoretical and legal categories, which have been developed in the framework of various types of legal understanding, need serious clarification, taking into account the peculiarities of the Chinese political and legal reality. From the historical point of view attention is being paid to Confucianism and Legalism, which have laid the foundations of the Chinese legal tradition and are influencing China’s law system until now. The author is examining the possibility of further updating the ancient Chinese concept of the «Heaven mandate» in modern conditions. A significant place in the article is devoted to analyzing the role of the Chinese Communist Party in giving legitimacy to the legal norms established by the legislator. The author analyses the legal nature of the program documents of the Communist Party of China, emphasizes the existence of the suggestive elements of legitimization of laws being adopted in China. In conclusion the article focuses on the process of legitimization of one of the Constellations of the Constitution of the People’s Republic of China, which abolished the terms limits of the Chairman of the People’s Republic of China, and it sums up that the constitutional amendment was legal from the formal point of view.
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Tu, Yunxin. "The Question of 2047: Constitutional Fate of “One Country, Two Systems” in Hong Kong." German Law Journal 21, no. 8 (December 2020): 1481–525. http://dx.doi.org/10.1017/glj.2020.93.
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AbstractThe history of Hong Kong is intertwined with British colonialism and China’s Hong Kong policies. This history offers unique and important lessons on the rise and fall of Hong Kong’s constitutional order. In accordance with the 1984 Sino-British Joint Declaration, China declares 12 basic policies regarding Hong Kong and has translated these into the 1990 Hong Kong Basic Law. It is generally held that “One Country, Two Systems” will be the main constitutional architecture of Hong Kong for 50 years, and it will remain basically unchanged even after 2047. However, there are obvious difficulties and enormous differences on the interpretation of Article 5 of the Hong Kong Basic Law concerning the true meaning of “unchanged for 50 years.” Recent years have witnessed the great need for deciphering the time-code of the Basic Law because the question of 2047 draws closer and closer to the central stage for the determination of Hong Kong’s constitutional future. This Article aims to provide legal analysis on Article 5 of Hong Kong Basic Law and the constitutional fate of Hong Kong toward 2047. It distinguishes all sorts of Article 5 interpretations into three broad categories: “Unchanged for 50 years” as international promise, “unchanged for 50 years” as political commitment, and “unchanged for 50 years” as constitutional obligation. Different approaches have been utilized for various constitutional interpretations. But all in all, the constitutional puzzles regarding “unchanged for 50 years” must be addressed within the framework of the temporality of the Basic Law in a fast-paced world. In order to maintain the constitutional stability and endurance, to secure the unamendability of “One Country, Two Systems” in 2047 will be the best blessing for Hong Kong in every possible way.
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LUNG, Wan Pun. "International Law before the Courts of the Hong Kong Special Administrative Region of the People’s Republic of China—Twenty Years On." Asian Journal of International Law 9, no. 1 (April 30, 2018): 10–19. http://dx.doi.org/10.1017/s2044251318000024.
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AbstractWhile there have been various studies on international law in domestic courts, the case of the Hong Kong Special Administrative Region of the People’s Republic of China [HKSAR], which celebrated its twentieth anniversary in 2017, presents unique questions. Under the principle of “One Country, Two Systems”, while the HKSAR maintains a distinct common-law system and a separate judicial regime, foreign affairs remain the responsibilities of the Central People’s Government of China. The handling of international law issues in cases before HKSAR courts would require consideration of the constitutional relation between the national (central) authorities of China and the local authorities in the HKSAR, and between the main legal system of China and the local HKSAR common-law system, in the light of the experiences of handling relevant cases in the past twenty years.
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Shih, Chih-Yu. "The style of chinese constitutional development: China and Taiwan." International Journal of the Sociology of Law 23, no. 4 (December 1995): 371–93. http://dx.doi.org/10.1016/s0194-6595(05)80004-8.
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Khizhnyak, Veronika S. "Improving the constitutional and legal policy of the Russian Federation in the field of regulating the educational activities of universities in the context of globalization and regionalization." Gosudarstvo i pravo, no. 8 (2023): 124. http://dx.doi.org/10.31857/s102694520027231-5.
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In the article discusses the features of the educational activities of higher educational institutions in Russia in the context of globalization and regionalization. The features of improving the constitutional and legal policy of the Russian Federation in the field of educational activities of universities at the present stage are analyzed. Relevance of the study is justified by the fact that the improving the constitutional and legal policy in this area is the key not only to economic stability, but will also contribute to the solution of political issues. The purpose of this study is to develop, based on an analysis of the provisions of the Constitution of the Russian Federation, universal and regional international agreements, legal acts, foreign experience, the works of legal scholars, economists and sociologists, proposals for improving the constitutional and legal policy in the field of educational activities of universities, taking into account modern tendencies of globalization, regionalization and the need to preserve and develop Russian culture and traditions. As a result of the study, the main trends in the field of higher education were identified, both at the global and regional levels. The experience of the People’s Republic of China on the development of higher education, corresponding to the trends of modern world and regional processes and the goal of preserving national traditions and culture, was analyzed, its features and positive features that could be borrowed by the Russian Federation were identified. Proposals were developed to improve Russian legislation and create strategic documents in this area. In particular, the goals and principles of the concept of the development of higher education in Russia were formulated. The main directions of development of the constitutional and legal policy of the Russian Federation in the field of educational activities of universities are identified: improving the quality of education, their competitiveness in foreign markets, the adequacy of education to modern socio-economic and cultural conditions.
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Song, Lei. "Milestones in the Formation of China's Constitutional Legislation: A Look Through One Hundred Years Since the Creation of the CPC." Vestnik Tomskogo gosudarstvennogo universiteta, no. 470 (2021): 253–62. http://dx.doi.org/10.17223/15617793/470/31.
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This article highlights the chronology of the formation of Chinese constitutional legislation under the leadership of the Chinese Communist Party and on this basis analyzes the active role of the CCP in this process. The author studied the development of the Chinese Constitution and the related legislation. This process has gone through a thorny path: inception (1927-1949), formation (1949-1966), stagnation (1966-1978), further development (1978-2012), and finally improvement (2012 - present). The main research methods were formal-legal (used to study the texts of the laws of China from 1927 to the present). The author identified the advantages and disadvantages of rule-making activities in the field of public law in China. In the course of the study, the author found that the creation of the CPC was a landmark event in the history of both the country and the whole world in 1921. In 2021, the CPC celebrates its centennial anniversary. As this difficult century has shown, comprehensive governance of the state on a legal basis is a key guarantee, essential for the commitment to this path and for its development, an indispensable condition for the modernization of the system and the potential of state governance. It is established that, under the leadership of the CPC, China tirelessly sought new solutions and invested great efforts in creating a rich and strong state, reviving the Chinese nation, and improving the people's well-being. During the founding of the People's Republic of China, in the period of reform and openness that followed, and in the new era of socialism with Chinese characteristics, the party played a key, decisive role in fulfilling all the tasks associated with the formation of these laws. As a result of the analysis, the author concludes that the party leadership, the people as the rightful owner of their country and the government of the state on the basis of law are closely related to each other and constitute an organism characterized by internal unity. As the experience of creating constitutional legislation shows, China needs to adhere to the organic unity of these three elements in practice. It is necessary to improve the system of implementation, control and guarantee of legal governance, to protect the authority of constitutional legislation. It is necessary to maintain and improve the institutional framework of the National People's Congress, continuously modernize the technique of lawmaking and improve its quality, and continue to deepen and develop scientific and democratic legislative work, recognize the importance of China's own conditions and national specifics, and study the fruits and experience of creating foreign constitutional legislation.
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Shi, Hui, and Xiaobin He. "The Legal Guarantee for Achieving Carbon Peak and Neutrality Goals in China." International Journal of Environmental Research and Public Health 20, no. 3 (January 31, 2023): 2555. http://dx.doi.org/10.3390/ijerph20032555.
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In order to actively fulfill its international treaty obligations, China has established the goal of peaking CO2 emissions by 2030 and achieving carbon neutrality by 2060. Since 2018, when ecological civilization was written into the Constitution, the realization of carbon peak and neutrality goals has had an ideological foundation and a constitutional basis. China has formulated various special laws and built a 1 + N policy system to reduce carbon emissions, which together with the environmental protection law, climate change law, energy law and other related laws and regulations constitute a unified legal system and provide legal support to achieve carbon peak and neutrality goals. At the same time, China has taken advantage of the new national system with concentrated efforts and resources to delineate the different roles of the government and market mechanisms in carbon emission reduction, and to make the operation of the legal system of carbon peak and neutrality suitable for its actual situation by giving full paly to the initiative of both central and local governments. This article analyzes the current legal system and its characteristics in China in the process of achieving carbon peak and neutrality goals in the context of the new era, and outlooks on the improvement path of the legal system from both domestic and international dimensions. The practice, experience and development direction of China in the construction of the legal guarantee for carbon peak and neutrality goals can provide reference for other countries to achieve carbon reduction.
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Gregorczuk, Karol. "Podstawowe aspekty wykładni prawa w chińskim porządku prawnym." Gdańskie Studia Azji Wschodniej, no. 20 (2021): 7–22. http://dx.doi.org/10.4467/23538724gs.21.003.14835.
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Basic aspects of legal interpretation in the Chinese legal order Chinese legal culture was shaped in a different way than Western legal culture, these differences have a significant impact on the rule of law, fundamental rights and democracy in contemporary China. Legal interpretation is one of the formal sources of law in China. The authority to interpret legislation is usually characterized as a legislative rather than a judicial function. The Standing Committee of the National People’s Congress (NPC), the State Council and the Supreme People’s Court have a special role in interpretive activities. Chinese legal interpretation includes semantic rules, the cultural and linguistic context of law, basic constitutional principles, the hierarchy of sources of law and reasoning by analogy.
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Dongli, Huang. "Commentary on “Trade, Investment and Beyond”." China Quarterly 191 (September 2007): 742–44. http://dx.doi.org/10.1017/s0305741007001701.
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In her article, Julia Ya Qin draws conclusions from the accession of China to the WTO which reflects the effects of WTO obligations on China's constitutional law, the development of foreign trade law, the foreign investment regime, intellectual property rights protections and general rule-of-law conditions. With respect to foreign trade law, the foreign investment regime and intellectual property rights protections, it is not difficult to observe the legal consequences the accession has brought and will bring to China. However, Qin's article goes beyond these general observations and provides profound insights on significant effects of the WTO obligations on China's economic reforms as well as rule of law processes. This essay comments on arguments she has presented on these issues.
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Ma, Evelyn. "Scholarly Chinese Legal Works in the Vernacular: A Selective Topical Treatise Finder (Part II)." International Journal of Legal Information 41, no. 2 (2013): 162–78. http://dx.doi.org/10.1017/s073112650001177x.
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Part I of the two-part selective treatise finder published earlier in the International Journal of Legal Information focuses on scholars, legislators and jurists who have contributed to the scholarship in the field of constitutional law, the development of rule of law in China as well as in administrative law and procedure. Part II of the article focuses on those who have been instrumental in the development of legislation relating to civil law as well as criminal law and procedure from the late 1970's to date.
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Cai, Congyan. "International Law in Chinese Courts During the Rise of China." American Journal of International Law 110, no. 2 (April 2016): 269–88. http://dx.doi.org/10.5305/amerjintelaw.110.2.0269.
Повний текст джерелаАнотація:
The number of countries in which domestic courts are actively engaged with major public affairs has increased markedly since the early 1990s. In many transitional states, in particular, domestic courts have ruled on great constitutional controversies, which influence the national political process. They have also taken an active role in the application of international law— especially human rights treaties—and at times treat such treaties as a “New Standard of Civilization.” In particular, domestic courts have at times invoked international law in becoming more aggressive toward the executive branch. This trend has been one normative element inspiring some theorists to propose a new field known as comparative international law. This article highlights a different set of elements that become manifest in assessing the rapid overall rise in references to, and application of, international law by courts in China in recent years.
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Ramsden, Michael. "REVIEWING THE UNITED KINGDOM'S ICCPR IMMIGRATION RESERVATION IN HONG KONG COURTS." International and Comparative Law Quarterly 63, no. 3 (June 17, 2014): 635–63. http://dx.doi.org/10.1017/s0020589314000190.
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AbstractIn 1976 the UK ratified the ICCPR with a reservation that prevented individuals without the right to ‘enter and remain’ in the UK from invoking Article 12(4) and ‘other provisions’ of the covenant. Upon Hong Kong's reunification with China, the ICCPR ‘as applied to Hong Kong’ in accordance with the UK's ratification was constitutionally guaranteed. It will be argued that the legislation implementing the ICCPR does not reflect the constitutional guarantee ‘as applied to Hong Kong’ because it amounts to a blanket exclusion of all ICCPR rights in immigration matters, impermissibly going beyond the UK's reservation.
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Libin, Xie, and Haig Patapan. "Schmitt Fever: The use and abuse of Carl Schmitt in contemporary China." International Journal of Constitutional Law 18, no. 1 (January 2020): 130–46. http://dx.doi.org/10.1093/icon/moaa015.
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Abstract This article examines “Schmitt Fever,” the reception and influence in contemporary China of the thought of Carl Schmitt, the German legal, constitutional, and political theorist notorious for his endorsement of National Socialism. It argues that an understanding of Schmitt Fever provides new insights into contested terrain and fracture lines of contemporary Chinese law and politics. It also shows how Western concepts are taken up in China, both philosophically and politically, and how their reception reveals valuable insights into the character of the major political contests in contemporary China. By examining the way Schmittian concepts such as “friend-enemy,” “sovereignty,” and “decisionism” are deployed by three contending groups of scholars—the “China Path,” “New Left,” and “Liberal” schools of thought—it shows the limitations of socialist and Marxist thought in contemporary debates, and a crisis in legitimacy regarding the foundational ideas that sustain and inform contemporary debates regarding the future direction of China.
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CHAN, PHIL C. W. "A Keen Observer of the International Rule of Law? International Law in China's Voting Behaviour and Argumentation in the United Nations Security Council." Leiden Journal of International Law 26, no. 4 (November 8, 2013): 875–907. http://dx.doi.org/10.1017/s0922156513000459.
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AbstractGiven the centrality of law in the creation, decision-making, and impact of the United Nations Security Council, the deliberative discourses among Security Council Members, and the necessity for China to articulate its reasons publicly for its actions within the Security Council, the roles that China plays within the Security Council illuminate and clarify its approaches to the current international legal order. This article explains how law serves as a constitutional–normative framework within which the Security Council must function, followed by a discussion of how the Security Council in turn may serve as a locus of deliberative discourses that delineate, influence, and constrain its members’ state behaviours. It challenges the view that law plays a limited role on matters of international security by exploring China's voting behaviour in the Security Council and the arguments that it has proffered. It also discusses how China may respond to a draft Security Council resolution aimed at its conduct other than simply by vetoing it, and how it has taken a proactive role in the maintenance of international peace and security through the Security Council.
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Jia, Yong-jian. "The Leadership of the CPC be written into the Laws: Standard, Scope and It’s Expression." Legal Science in China and Russia, no. 6 (June 5, 2024): 22–29. http://dx.doi.org/10.17803/2587-9723.2023.6.022-029.
Повний текст джерелаАнотація:
Promoting the Communist Party of China’s leadership into the law is an inevitable requirement for the CPC’s comprehensive leadership in governing the country according to law in the new era, and it is also a legislative action to implement the CPC’s Leadership clause of the Constitution. On the issue of the standard of «the party’s leadership into the law», the academic circles have successively put forward two representative viewpoints: «theory in the field of public law» and «theory of political standard». But both are too formal to be applied in practice. For example, although the political judgment standard theory initially involves the substantive content level, the actual understanding and application still seem relatively broad, and there is no substantive content to grasp.In 2018, the amendments to China’s constitution added a clause that «the leadership of the Communist Party of China is the most essential feature of socialism with Chinese characteristics», which fundamentally established the criterion of «socialist attributes»: a substantive criterion of «promoting CPC’s leadership into the law». According to this provision, if the law needs to confirm the leadership of the Communist Party of China , it means the law should highlight its socialist nature. The question of which national legislation needs to specify the «leadership of the Party» is essentially the issue of which national legislation needs to highlight the socialist nature in the substance and must ensure its socialist attribute.Therefore, to judge whether a national legislation should state «the leadership of the Communist Party of China», the substantive content should be based on whether the country’s legislation has outstanding socialist attributes and should absolutely guarantee and give special prominence to its socialist values. In this constitutional sense, state legislation stipulating «the leadership of the Communist Party of China» is to highlight its «socialist» attributes; In order to manifest and guarantee its socialist character, state legislation must clearly stipulate the principle of «Adhere to the leadership of the CPC». The Constitution is the fundamental law and supreme law of the country, and the highest standard and basis for national legislation. Therefore, national legislation should also be based on the Constitution when stipulating the «leadership of the Communist Party of China» clause. That is, national legislation with prominent socialist attributes should comprehensively stipulate «upholding the leadership of the Communist Party of China». The basic scope of these legislation involves the fields of basic system of state and government, national defense and military, national security, cadre personnel, education, ideological security, governing the country according to law, anti-monopoly, etc., and mainly belongs to public law. The legislative field with socialist attributes is a practical and opening field. With the in-depth development of socialist practice, when the socialist nature in some fields is gradually highlighted and clearly recognized by legislators, its corresponding legislation will clearly stipulate the principle of «upholding the leadership of the Communist Party of China», which further confirm and guarantee its «socialist attribute» at the national legislative level. Therefore, the issue of the field and scope of «the Party’s leadership into the law» is fundamentally a dynamic issue, a dynamic field that has always been constantly evolving in the face of the development of socialist practice.To promote the Party’s leadership into the law, the fundamental purpose should be conducive to strengthening the leadership of the Communist Party of China, and comprehensively consider the coordination and convergence between the national laws and the Communist Party of China’s regulations under the socialist rule of law system. The newly revised National Constitution in 2018 has established a legislative expression model that confirmed the leadership of the Communist Party of China in principle and abstractly. The normative content of how the Chinese Communist Party exercises its leadership is specified in detail by the Communist Party of China Constitution. The Communist Party regulations are the main basis rules for the party to manage the party and govern the party, and have outstanding functions of governing the party and controlling power. They are most suitable for comprehensively standardizing and directly stipulating the specific content and procedures of the leadership of the Chinese Communist Party over the country. In this way, the national laws and the Communist Party of China regulations can be harmony and unified in the socialist system of rule of law as a whole. Accordingly, when relevant national legislation stipulates «the CPC’s leadership», it should also mainly implement the model established by the National Constitution and the Communist Party of China Constitution, which confirm the leadership of the Communist Party of China in principle and abstractly. So, there will leave the legislative blanks for the Communist Party of China regulations to stipulate the normative content such as its specific scope, matters, methods, procedures, responsibilities, and so on. This legislative white space is intentional from an overall perspective of the socialist rule of law system, and is a «rule of law interface» that must be reserved for the integration of the Communist Party of China regulations with national laws to further specific provisions on the actual content of «the CPC’s leadership».As a result, the national legislation focuses on «abstract confirmation of the party’s leadership status», while the Communist Party of China regulations focus on directly regulating and restraining the party’s leadership activities in a comprehensive and concrete way. The national laws and the Communist Party of China regulations are closely coordinated and connected on the issue of promoting the CPC’s leadership into the law. At that time, there is a differentiated division of labor and dislocation and complementary relationship between the national laws and the Communist Party of China regulations. That will not only highlight the unity and scientific nature of the socialist rule of law system with Chinese characteristics but also conducive to accelerating the formation of a rule of law pattern in which national laws and the Communist Party of China regulations complement each other, promote each other, and guarantee each other. The leadership of the Chinese Communist Party over the country will be confirmed and guaranteed by party rules and state law, and will be more stable in the socialist rule of law system.
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Younas, Ammar. "Legality of Rule of Law with Chinese Characteristics: A Case of “Ultra-Sinoism”." Russian Law Journal 8, no. 4 (November 24, 2020): 53–91. http://dx.doi.org/10.17589/2309-8678-2020-8-4-53-91.
Повний текст джерелаАнотація:
The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and to elaborate the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism.
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Xu, Ya-wen, and Qian Cheng. "Viewing the Labor Law Reform in China From a Perspective of Legal Globalization." NAVEIÑ REET: Nordic Journal of Law and Social Research, no. 7 (November 2, 2018): 35–52. http://dx.doi.org/10.7146/nnjlsr.v0i7.111014.
Повний текст джерелаАнотація:
After the cold war, the trends of legal globalization became more and more obvious. People’s Republic of China (PRC) began its connection with the international community and the global market, and its legal reform after the launch of the “reform and opening-up” policy. By examining China’s labor law reform, we can see how legal globalization has influenced China’s legal system. China introduced and transplanted many institutions, terms of ILO conventions during its labor law reform. It also accepted many principles and conceptions of ILO conventions in its labor law and constitutional law, which would shape China’s labor law reform. Multinational corporations (MNC) and transnational civil society organizations (TCSO) influenced Chinese labor law reform through lobbying, advocacy, public education, and litigations. Informal norms such as Corporate Social Responsibility standards developed by MNCs and TSCOs also inspired Chinese legislators to improve China’s labor law and Chinese SCOs or business associations to develop labor standards to fill the gaps in China’s labor law and regulations. In conclusion, in the age of legal globalization, the labor law reform in China is a kind of legal transplantation. International norms, actions by multinational corporations and transnational civil society, and their informal norms together constitute the force which promotes the transplantation and the reform of China’s legal system.
Key Words: legal globalization, global governance, labor law, law reform
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Ardhanariswari, Riris. "State Responsibility During Covid-19 Pandemic In The Perspective Of The Indonesian Constitutional Law." Jurnal Dinamika Hukum 21, no. 1 (December 1, 2021): 1. http://dx.doi.org/10.20884/1.jdh.2021.21.1.2924.
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Abstract--Coronavirus first emerged and spread to humans from Wuhan city, China at the end of December 2019 and spread to Indonesia and became a serious concern in Indonesia since March 2020 as it was stated as a nationaloutbreak. The Indonesian Constitution asserts that the purpose of formation of the State of Indonesia is to protect the whole people of Indonesia and the entire homeland of Indonesia, to promote general prosperity, to develop the nation’s intellectual life, and to contribute to the implementation of a world order based on freedom, lasting peace and social justice. The Covid-19 pandemic is not only occurring in Indonesia, but also in other countries, and each country certainly issues different policies. The state with its authority should respond to the condition in the community, which this research is based on. This research employed a normative legal method and used secondary data as its main data. Various policies are issued by the Indonesia Government from Government Regulation in Lieu of Law No. 1 of 2020 which has become Law No. 2 of 2020, Government Regulation No. 21 of 2020 on the Large Scale Social Restriction in Coronavirus Disease 2019 (COVID‑19) Response Acceleration to technical regulations issued by ministers to solve Covid-19 related issues. The policies are certainly the implementation of the state’s responsibility to the people.Keywords- State Responsibility, Constitutional Law
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Otcheskaya, T. I. "Activities of the Procuratorial Bodies of the Russian Federation and the People’s Republic of China to Ensure Legality in the Environmental Sphere." Courier of Kutafin Moscow State Law University (MSAL)), no. 3 (June 7, 2022): 25–34. http://dx.doi.org/10.17803/2311-5998.2022.91.3.025-034.
Повний текст джерелаАнотація:
The article is devoted to topical issues of the activities of the prosecution authorities of the Russian Federation and the People’s Republic of China to ensure the rule of law in the environmental sphere. At the same time, the approaches of the two states to ensure legality in the environmental sphere at the constitutional level, which are regulated by the Constitutions of the Russian Federation and the PRC, were studied. The achievements of the prosecutor’s office for the protection of human and civil rights in the Russian Federation for a favorable natural environment, for improving the ecological environment for people and the general ecological situation were consecrated; prevention of pollution and other dangerous phenomena for society; protection of water bodies and forests. The author analyzes the environmental legislation of China, the main laws regulating the issues of environmental protection both in the Russian Federation and in the People’s Republic of China. The existing successes in this matter are canceled and the factors that reduce the effectiveness of environmental protection activities of both the authorities of these states and the regulatory and supervisory authorities in them are indicated.
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Salter, Michael. "The Liberal Rule-of-law as a Critical Yardstick for China? Explaining Some Contradictions." Global Journal of Comparative Law 5, no. 1 (June 1, 2016): 5–44. http://dx.doi.org/10.1163/2211906x-00501002.
Повний текст джерелаАнотація:
This paper continues the debate over whether the prevailing liberal model of the rule-of-law, as classically formulated within the distinctly Western constitutional tradition and then superimposed historically within parts of Asia as a result of colonialism, provides a contextually appropriate standard for critically assessing developments over governance within China. It argues that there are serious difficulties in identifying a viable understanding of the meaning, scope and rationale for ‘the’ rule-of-law. This represents both a general difficulty, and one that applies with particular force to all those legal and political systems that have not arisen from the historically specific context of Western Europe, and the latter’s offshoots – such as the usa. This paper suggests that we consider changing the ideologically-loaded question of ‘what does the rule-of-law doctrine mean for how China should be governed?’ with an equally polemical question: namely, ‘how can our understandings of the liberal rule-of-law be questioned and, perhaps, ultimately redefined, or even abandoned, in the light of the practicalities of securing effective governance within China and those other states that are largely outside the geopolitical and military ambit of Western liberalism and neo-liberalism?’.
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Trofimov, Albert A., Ekaterina A. Dmitrikova, and Anastasia A. Karitskaya. "Search for the optimal model of control and supervisory activities: The experience of Russia and China." Vestnik of Saint Petersburg University. Law 14, no. 3 (2023): 786–803. http://dx.doi.org/10.21638/spbu14.2023.314.
Повний текст джерелаАнотація:
One of the aspects of ensuring public interest is to determine the order of organization and implementation of state activities, the purpose of which is to minimize the risk of harm to legally protected values caused by violations of mandatory requirements. The achievement of this goal largely depends on the model of control and supervisory activities that will be implemented by the state. The authors see the optimal model of control and supervisory activities as balanced if based on constitutional principles. The authors consider the experience of Russia and China in creating a modern model of control and supervisory activities and propose to consider approaches to their search that would not only achieve the goal of control (supervision), but also ensure that the balance of interests of the state, society and individual individuals is maintained. Such a search has not been completed in both states. Actually there is a unified approach — in Russia and China the legislator seeks to form a model that would ensure a balance of interests. The authors turn to the constitutional principles of state control and supervision as an activity related to interference with the freedom of a private person. The study revealed a difference in approaches to the issue of reforming control and supervisory activities both in terms of the dynamics of changes and the consistency of approaches. In relation to the Russian experience, the development of legislation in the field of control and supervisory activities allowed to identify the characteristics of changes and the correlation of control and supervisory activities in the system with other types of administrative activities. The Chinese experience reveals the ongoing search by the Chinese leadership for a system of legal regulation in the conditions of uncodified legislation, numerous subordinate regulations and the inconsistency and uncertainty of legal norms.
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Peters, Anne. "Constitutional Theories of International Organisations: Beyond the West." Chinese Journal of International Law 20, no. 4 (December 1, 2021): 649–98. http://dx.doi.org/10.1093/chinesejil/jmab034.
Повний текст джерелаАнотація:
Abstract The Joint Statement by the Foreign Ministers of China and Russia on Certain Aspects of Global Governance in Modern Conditions of 23 March 2021 calls for “the establishment of a fairer, more democratic and rational multipolar world order.” The paper inquires how constitutional theories of international organisations have in the past and present sought to contribute to world order. It identifies three waves of such theory since the 1960s. Looking in more detail at the ongoing third wave, it identifies and seeks to pull out further a constitutional model which upscales the proto-democratic practices in international organisations by strengthening forums for participation and contestation, which rectifies to the north-south imbalance inter alia rooted in the colonial heritage by involving more actors from the global south, and which tackles the global social question upfront.
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Wang, Chunmei. "Analysis of the legal sources of the introduction of basic socialist values in the "Law on insurance"." Legal Science in China and Russia, no. 4 (September 16, 2021): 64–70. http://dx.doi.org/10.17803/2587-9723.2021.4.064-070.
Повний текст джерелаАнотація:
The main socialist values are the soul of socialist legal construction. The introduction of basic socialist values into the construction of the rule of law is an inevitable requirement for maintaining a combination of State governance on a legal basis and State governance on the basis of moral norms, and this is an important way to strengthen the construction of basic socialist values. The promotion of the introduction of basic socialist values into legislation has become an important measure for the introduction of basic socialist values into the construction of law and order and an important way of implementing basic socialist values. From the point of view of the rule of law, upholding the basic socialist values in laws and regulations undoubtedly requires the transformation and elevation of basic values, such as politics and moral norms, to the level of legal norms, so that they can receive a source and normative characteristic of justice, execution and protection.However, from the point of view of judicial practice and social reality in China, there are other types of norms that serve as the basis for court decisions and the normative basis for the behavior of the subject. Therefore, the “Insurance Law” as the basic law in the fi eld of traditional commercial law, the introduction of basic socialist values developed by a legal source based on the central position of the legislator, and should be based on the Constitution of the Civil Code of China. Here is about the fact that the constitution is the main right and dominant in the legal system of any countryThe content “The state supports the basic socialist values” was added to article 24 “Amendment to the Constitution of the People’s Republic of China”, adopted on March 11, 2018. So that the basic socialist values are raised to the level and height of constitutional norms, and, thus, the defense of the basic socialist values has the highest legal force of the constitution. The Civil Code of the People’s Republic of China is guided by the “Constitution”, and in article 1 “the task of legislation” further proposes and requires “the promotion of socialist core values” and accepts the integration of the civil and commercial codes as a legislative tradition and legislative style.This is what provides the normative basis of the legal source for the introduction of the Law on Insurance into the basic socialist values. Principles and institutions, as the main forms of manifestation of law in the source of law, have also become two fi elds in which the basic socialist values are integrated into the Law on Insurance. Field integration at the level of basic principles should be mainly based on the principle of good faith, but based on the characteristics of insurance activity and insurance management, the overall integrity of the core values should be raised to the highest level of maximum integrity in order to offer a higher degree of honesty to insurance entities.Integration at the level of institutions requires not only the concretization of the principle of maximum integrity, but also the integration of basic values, such as freedom, equality, justice and the rule of law, into specifi c institutions in order to offer norms of behavior and justice for insurance entities and judicial authorities from the level of a legal source. In addition, from the position of judges in the center of justice, from the legal source, the introduction of basic socialist values has certain disadvantages, therefore, other types of norms besides legal sources should be introduced, such as appropriate judicial explanations about the Insurance Law, in this general fi eld, to help correct the shortcomings of the Insurance Law in the legal source, the full manifestation and implementation of the guiding and guiding role of the basic socialist values in the insurance legislation and insurance practice of China, the effective normalization and leadership of the healthy development of the insurance industry in China, as well as the demonstration and implementation of the contribution of insurance to the socialist economic order of China, and serves as a "stabilizer" of public order.
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Fung, Daniel R. "Hong Kong's Unique Constitutional Odyssey and Its Implications for China." Asian Affairs: An American Review 24, no. 4 (December 1998): 199–216. http://dx.doi.org/10.1080/00927678.1998.10771173.
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Petersmann, Ernst-Ulrich, and Armin Steinbach. "Neo-Liberalism, State-Capitalism and Ordo-Liberalism: ‘Institutional Economics’ and ‘Constitutional Choices’ in Multilevel Trade Regulation." Journal of World Investment & Trade 22, no. 1 (February 19, 2021): 1–40. http://dx.doi.org/10.1163/22119000-12340202.
Повний текст джерелаАнотація:
Abstract Reforms of international trade and investment law and institutions are hampered by conflicting economic paradigms. For instance, utilitarian Anglo-Saxon neo-liberalism (e.g. promoting self-regulatory market forces privileging the homo economicus), constitutional European ordo-liberalism (e.g. protecting multilevel, constitutional rights and judicial remedies of European Union citizens), and authoritarian state-capitalism (e.g. protecting totalitarian power monopolies of the communist party in China) pursue different legal and institutional designs of trade and investment agreements. Globalization and its transformation of national into transnational public goods (PG s) require extending constitutional and institutional economics to multilevel governance of transnational PG s in order to enhance the wealth of nations. Maintaining the worldwide legal and dispute settlement system of the World Trade Organization (WTO) – and interpreting its regional and national exception clauses broadly in order to reconcile diverse, national and regional institutions of economic integration and of ‘embedded liberalism’ – remains in the interest of all WTO member states.
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Lu, Qiqin, Yuewei Xu, and Youyi Zhuang. "A Comparative Study on the Rights and Interests of Chinese and American Women Based on the American Abortion Case." Communications in Humanities Research 5, no. 1 (September 14, 2023): 385–91. http://dx.doi.org/10.54254/2753-7064/5/20230323.
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In 1973, through Roe v. Wade, the U.S. Supreme Court established for the first time a woman constitutionally protected right to free choice to have an abortion. The decision's derivative interpretation of the Constitution's Fourteenth Amendment to due process grounded the right to abortion in the right to privacy, and the right to abortion has had constitutional provenance ever since. The decision was considered a significant victory for female rights protection; however, it remained a controversy for several decades, particularly on moral and religious spectrum. The case was overturned by the US Supreme Court 50 years later, putting a halt to the process of abortion liberalization. It means that each state in the U.S. would decide its own laws and regulations regarding abortion, which set off a worldwide debate on women's rights. This article compares the legal systems of women's rights in China and the United States through the above-mentioned case, and finds that there are many differences in the legislation and implementation of the existing laws in both countries, mainly due to the discrepancy in culture, history, religion, etc. Discussion on effectiveness and limitations of legal solutions to ethical disputes is also mentioned, law can provide a broad framework for solving ethical dilemmas, but unable to deal with every individual perspective or be detailed enough to deal with every possible scenario. In short, the law is only one of the tools in a broader ethical framework that needs to work align with the context of other social determinants.
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LI, Ling. "“Rule of Law” in a Party-State: A Conceptual Interpretive Framework of the Constitutional Reality of China." Asian Journal of Law and Society 2, no. 1 (March 20, 2015): 93–113. http://dx.doi.org/10.1017/als.2014.21.
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AbstractThis article identifies and conceptualizes the structural features of the Party-state and proposes a “dual normative system” as a framework to interpret the constitutional reality of China. This framework has four components: (1) structural integration of the Chinese Communist Party (CCP or the Party) and the state; (2) reserved delegation of authority to the state; (3) bifurcation of state decision-making processes; and (4) cohabitation of the two normative systems: one of the Party and one of the state. This article demonstrates that the political reforms in China since the 1980s have not separated the power of the Party and the state, but have created an increasingly institutionalized dual normative system that is more complex compared with the previous fused system, yet more pliable to adjustments and more open to different interpretations, including to that of the “Party-state constitutionalism”, which interprets the “rule of law” as compatible with the rule of the Party.