The Path to the Rule of Law—An Overall Review of Legal Reform, Crime and the Judicial System During the Transition Era in China

2019 ◽  
Vol 7 (1) ◽  
pp. 46-56
Author(s):  
Ziwei Qi
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Reform ◽  
Criminal Code ◽  
Judicial System ◽  
Social Forces ◽  
The Rule Of Law ◽  
Republic Of China ◽  
The Social ◽  
Political Forces

In order to understand crime and the legal system in the People’s Republic of China (P.R.C.), it is necessary to understand the components of a crime and the structure of the judicial system in the P.R.C. By examining the elements of crime from the written criminal code and by analysing the structure of the judicial system, we will find some procedural and substantive challenges to appeal, which might contradict the philosophy of unbiased judicial principles. The article also explores possible social and political forces that might affect the direction of legal reform in China. The author aims to provide the readers with a basic overview of the judicial system in China and the social forces behind the current legal reform towards the rule of law.

scholarly journals PEMBENTUKAN HUKUM DALAM PERSPEKTIF PEMBARUAN HUKUM

2012 ◽  
Vol 1 (3) ◽  
pp. 307
Author(s):  
Zainal Arifin Hoesein
Keyword(s):  
Rule Of Law ◽  
Social Economic ◽  
Methodological Approach ◽  
Legal Reform ◽  
The Rule Of Law ◽  
The Public ◽  
The People ◽  
The Social ◽  
The Law ◽  
Methodological Aspects

<p>Materi muatan hukum selayaknya mampu menangkap aspirasi masyarakat yang tumbuh dan berkembang bukan hanya yang bersifat kekinian, melainkan sebagai acuan dalam mengan Ɵ sipasi perkembangan sosial, ekonomi, budaya dan poli Ɵ k di masa depan. Norma hukum pada dasarnya inheren dengan nilai-nilai yang diyakini oleh masyarakat, tetapi daya kekuatan keberlakuan hukum, Ɵ dak dapat melepaskan diri dari kelembagaan kekuasaan, sehingga hukum, masyarakat dan kekuasaan merupakan unsur dari suatu tatanan masyarakat. Oleh karena itu, Hukum Ɵ dak sekedar dipahami sebagai norma yang menjamin kepasa Ɵ an dan keadilan tetapi juga harus dilihat dari perspek Ɵ f kemanfaatan. Oleh karena itu, maka pembentukan hukum dalam perspek Ɵ f pembaruan hukum harus difokuskan pada dua hal yaitu, sistem hukum dan budaya hukum. Tulisan ini akan membahas bagaimana idealisasi peraturan perundang-undangan; bagaimana fungsi peraturan perundang-undangan dalam pembangunan hukum; dan bagaimana pendekatan metodologis terhadap pembentukan hukum. Dari berbagai pembahasan tersebut disimpulkan bahwa pembentukan hukum dalam perspek Ɵ f pembaharuan hukum, di samping harus memperha Ɵ kan aspek metodologis, juga harus merujuk dan meletakkan norma hukum dalam kesatuan harmoni ver Ɵ kal dengan aspek teologis, ontologis, posi Ɵ vis Ɵ k dan aspek fungsional dari suatu norma hukum.</p><p>The substance of the law should be able to capture the aspira Ɵ ons of the people who grow and develop not only be present, but as a reference in an Ɵ cipa Ɵ on of the social, economic, cultural and poli Ɵ cal future. The rule of law is essen Ɵ ally inherent to the values that are believed by the public, but the validity of the power of the law, not to break away from the ins Ɵ tu Ɵ onal power, so the law, society and power is an element of a society. Therefore, the law does not merely understood as a norm that ensures certainty and jus Ɵ ce but also to be seen from the perspec Ɵ ve of expediency. Therefore, the legal establishment in the perspec Ɵ ve of legal reform should be focused on two things, namely, the legal system and legal culture. This paper will discuss how the idealiza Ɵ on of laws, how the laws func Ɵ on in the development of the law, and how the methodological approach to the legal establishment. It was concluded that the forma Ɵ on of the law in the perspec Ɵ ve of legal reform, in addi Ɵ on must pay a Ʃ en Ɵ on to methodological aspects, should also refer to and put the rule of law in the unity of ver Ɵ cal harmony with aspects of the theological, ontological, posi Ɵ vist and func Ɵ onal aspects of the rule of law.</p>

scholarly journals Rule of Law, Socially Constructed Reasons, and Marriage Equality

2018 ◽  
Vol 6 (2-3) ◽  
pp. 115-146
Author(s):  
Frederick Mark Gedicks
Keyword(s):  
Rule Of Law ◽  
Human Action ◽  
Social Forces ◽  
Government Action ◽  
The Rule Of Law ◽  
Normative Authority ◽  
Judicial Decisions ◽  
Socially Constructed ◽  
The Social ◽  
Philosophical Account

A reason is “constructed” if it does not appeal to a natural or normative authority that stands apart from human action, but is instead created by contingent social forces. The idea of constructed reason coexists uneasily with the rule of law. A bedrock rule-of-law principle requires that government action be nonarbitrary or reasoned, “reason unaffected by desire,” as Aristotle said. Yet, if the reasons judges invoke to justify judicial decisions are part of variable social and historical contexts in which the judges themselves are embedded, how can judicial decisions uphold the rule-of-law requirement of reasoned decision making untainted by the decision maker’s desires? This essay gives a philosophical account of the social construction of legal reasons, relying on Kant, Heidegger, and Gadamer as the decisive figures. It applies this account to current U.S. controversies over same-sex marriage, and suggests how constructed reasons might coexist with still-powerful rule-of-law myths.

Law and Economic Development: The Cautionary Tale of Colonial Burma

2014 ◽  
Vol 1 (1) ◽  
pp. 165-181 ◽  
Author(s):  
Thomas H. STANTON
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Large Scale ◽  
International Standards ◽  
Social Forces ◽  
Colonial History ◽  
The Rule Of Law ◽  
Economic Role ◽  
Independent Judiciary ◽  
The People

AbstractBurmese colonial history suggests that a legal system cannot operate independently from the felt needs of the people who are supposed to obey the law. Despite a monopoly of force for many decades, the British failed to create a sustainable legal system in Burma. Colonial status shifted Burma’s economic role from subsistence agriculture to the generation of large-scale exports. By undermining the traditional Burmese legal system and substituting Western international standards of property rights, enforceability of contracts, and an independent judiciary—all attributes of what some consider to be the “Rule of Law”—the legal system amplified and channelled destructive economic and social forces rather than containing them. This paper examines traditional Burmese law, the administration of law in British Burma, and the consequences of the new legal system for the country and its own stability. The paper concludes by suggesting lessons for Myanmar today, and for the study of the “Rule of Law.”

scholarly journals OFFENSE - THE ONLY GROUND FOR CRIMINAL LIABILITY

2014 ◽  
Vol 8 (4) ◽  
pp. 149-156
Author(s):  
Laura-Roxana Popoviciu
Keyword(s):  
Rule Of Law ◽  
Social Relations ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Rule Of Law ◽  
The Social ◽  
The Law

This study aims to examine the offence as the only ground for criminal liability. Article 15, paragraph 2 of the Criminal code provides that: “offences are the only grounds for criminal liability”, which implies the existence of an act, which is detected by the bodies empowered under the law in the form required by law, and also this principle comes as a guarantee of the person’s freedom because, without committing an act provided for by the law as an offense, the criminal liability cannot exist.The criminal liability is one of the fundamental institutions of the criminal law, together with the institution of the offence and of the sanction, set in the various provisions of the Criminal code.As shown in the Criminal code, in Title II regarding the offence, there is a close interdependence among the three fundamental institutions. The offence, as a dangerous act prohibited by the criminal rule, attracts, by committing it, the criminal liability, and the criminal liability without a sanction would lack the object. It obliges the person who committed an offence to be held accountable for it in front of the judicial bodies, to bide the sanctions provided for by the law, and to execute the sanction that was applied.The correlation is also vice-versa, meaning that the sanction, its implementation, cannot be justified only by the existence of the perpetrator’s criminal liability, and the criminal liability may not be based only on committing an offence.The criminal liability is a form of the judicial liability and it represents the consequence of non-complying with the provision of the criminal rule. Indeed, the achievement of the rule of law, in general, and also the rule of the criminal law implies, from all the law’s recipients, a conduct according to the provisions of the law, for the normal evolution of the social relations.

scholarly journals Peculiarities of insight of the European charter on the status of judges in the context of protecting their labor rights

2018 ◽  
Vol 28 (4) ◽  
pp. 16-22
Author(s):  
M. Dei ◽  
A. Kochkova
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Regulation ◽  
Judicial System ◽  
International Standards ◽  
Labor Rights ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
The Status ◽  
Protection Of Human Rights

The paper is devoted to questions of legal regulation of the peculiarities of insight the principles of the European Charter on the Status of Judges in the context of their labor rights in accordance with the legislation of Ukraine. It is clear that the development of the rule-of-law state, the protection of human rights and the rule of law are impossible without the effective functioning of the legal system, where one of the components of the judicial system . That is why the relevant legal system must realize the decree where a person is of the highest social value, despite the fact that those who administer justice also need proper protection. That is, it should be noted that the rights of judges as employees, taking into account the specifics of their work and status, should also be protected by the state. In joining the European community of international law, special attention should be paid to certain international standards concerning regulating relevant issues, where the European Charter on the Status of Judges of 1998, adopted within the Council of Europe, which in its turn is declarative, places particular emphasis. This document concerns, for example, issues such as appointment, status of judges, career development, responsibility, termination of judge's powers, etc. The characteristic of this document in the context of the subject under study is that most of the decree is devoted precisely to the labor rights of judges. Obviously, such decrees have become a progressive push for appropriate changes to the laws of the member states of the Council of Europe, where Ukraine did not become an exception, especially in the context of reforming the judicial system.

scholarly journals Historical Aspect and Prerequisites for Amending the Constitution of the RF

2017 ◽  
Vol 4 (3) ◽  
pp. 202-207
Author(s):  
V A Jilkin
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Russian Federation ◽  
Legal System ◽  
The United States ◽  
Criminal Code ◽  
Russian Society ◽  
Historical Aspect ◽  
The Rule Of Law ◽  
The Russian Federation

The following article examines aspects of the United States Agency for International Collaboration (USAID) programs influence in the rule of law field, started in the USSR during the early 90s. USAID-funded Rule of Law implementers helped draft the Russian Constitution, Part I of the Russian Civil Code, and the Russian Tax Code. The American Bar Association of the USA took an active part in changing Russian legislation since 1992, which was also funded by the USAID. The Constitution of 1993 included a provision on the priority of international law over national legislation. This provision was also included in Article 1 of the Criminal Code and in Article 1 of the Russian Code of Criminal Procedure. The article also deals with an enshrined supremacy of the Constitution found in the US Constitution and that of the European countries. For example, if there is a conflict between constitutional provisions and an international treaty, priority is given to the Constitution. Not all states recognize certain norms and implement them, just as legal practice is not always identical. Attempts to introduce alien values, ideologies, cultures and traditions, all the more with the help of international law, pose a threat to the democratic foundations of the Constitution as a legal act that has the highest legal force in the legal system of the state. The author suggests that the text of the Constitution of the Russian Federation would see the provision removed, according to which international law forms an integral part of the legal system of the Russian Federation. Amendments to the Constitution of the Russian Federation will strengthen Russia’s independence in the sphere of law, bringing back the best traditions of the functioning state authorities and judicial bodies, which should correspond to the current development of Russian society. Keywords: international law, constitutional law, the rule of law, double standards, human rights.

Ochrona praworządności w Unii Europejskiej – węzłowe problemy

2018 ◽  
Vol 1 (1) ◽  
pp. 183-193
Author(s):  
Iga Małobęcka ◽  
Magdalena Porzeżyńska
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Legal System ◽  
Judicial System ◽  
European Law ◽  
Max Planck ◽  
Protection Mechanism ◽  
The Rule Of Law ◽  
National Courts ◽  
Law Faculty

Reforms of the judicial system implemented in Poland in recent years and the rule of law proceedings initiated in their aftermath by the European Commission in January 2016 have contributed to the discussion within the framework of the international scholarly conference “Protecting European Union Values: Breaches of Article 2 TEU and its Consequences” organised by the Chair of European Law, Faculty of Law and Administration, in cooperation with the Max Planck Institute in Heidelberg. Basing on the speeches presented during the conference, in this article authors define the concept of the rule of law as one of the fundamental EU values, as well as analyse the existing violations of the rule of law in other Member States. An attempt was also made to assess the mechanisms protecting the rule of law, which result from the treaties (including Article 7 TEU and Article 258 TFEU), and propose supplementing them with a decentralised rule of law protection mechanism. Such mechanism should engage the whole EU legal system, including national courts, in protecting EU values, as assumed by the concept of “Rule of Law Argument” and the horizontal Solange test.

scholarly journals Methodological consciousness in the systematic study of the Civil Code of the People’s Republic of China

2021 ◽  
pp. 35-42
Author(s):  
Changyu Yang
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Systematic Study ◽  
Academic Research ◽  
Civil Code ◽  
Governance System ◽  
The Rule Of Law ◽  
Law System ◽  
Republic Of China ◽  
Chinese Characteristics

The Civil Code of the People’s Republic of China (hereinafter referred to as the Civil Code) was formally implemented on January 1st, 202. The promulgation and implementation of the Civil Code has become a milestone in the process of the rule of law in China, refl ecting the degree and characteristics of the development of the rule of law in China. Among the many features of the Civil Code, the systematical innovation has become the most remarkable highlight, and the systematical research on the Civil Code has become the focus and hot topic in the academic research on Chinese law. In the research process of scholars, genealogy of law, legal system, the rule of law system and the national governance system are four common categories, each of which refl ects the unique characteristics of China’s civil code from different perspectives and refl ects the consciousness of methodology. The category of genealogy of law shows the cultural characteristics of the civil code. Firstly, from the perspective of the genealogy of law containing cultural factors, the Civil Code integrates the socialist core values with Chinese characteristics, which are showed, for example, in the Marriage and Family chapters and the Right of Personality chapters. Secondly, the category of legal system highlights the normative status of the Civil Code. Observed from the organic integrity of legal system, the Civil Code occupies the core and important position in the socialist legal normative system with Chinese characteristics. Thirdly, the category of the rule of law system explains the characteristics of the new era of the Civil Code. The rule of law system is derived from the innovation of China’s rule of law practice, and is one of the general goals of China’s comprehensive rule of law. In this sense, the formulation and implementation of the Civil Code is an important practice of improving the “complete system of legal norms”. Last but not the least, the category of national governance system outlines the governance characteristics of the Civil Code, and the Civil Code fully implements the governance logic of the overall layout of the country, the Five-sphere Integrated Plan, including the promotion in the areas of economy, politics, culture, society and ecology. The application of the four categories has realized four sorts of transformation of the mode of thinking, namely, from the world’s genealogy of law to the legal system of China, from the form system of the Civil Code to the value system of it, from the generality of civil law system to the particularity of Chinese civil code system and from the normative system of the Civil Code to the national governance system. The transformation of the researching logic refl ects the methodological consciousness in the systematic study of the Civil Code. First of all, the systematic study of the Civil Code has transmitted from ontology through epistemology to the methodological consciousness. Ontological research solves the basic problem of “what is” and clarifi es the basic systematic structure of the Civil Code. The study of epistemology solves the problem of “how to know”, which is embodied the search for the method and path of the cognition of the Civil Code. While, the Methodological research is a re-examination of methods and cognitive approaches, with more refl ective elements, and is a study on the existing systematic research on the Civil Code. Secondly, the four systematic transformations mentioned above refl ect the consciousness of Chinese researchers to take on their mission. Since the founding of new China over the past 70 years, the independent discourse system of the academic research of Chinese scholars and the rule of law has been generated. Seeking the indigenization of the construction of the rule of law in China, seeking the integrity of the knowledge system of law and the rule of law system in China, seeking the harmonious relationship between the characteristic theories and the general theories in the process of the production of Chinese legal knowledge, etc., belong to the question of the age. Therefore, the methodology consciousness in the study of the Civil Code shows the Chinese researchers’ consciousness to take on the burden of the coming era. Third, it should be noted that the methodological consciousness also reveals some problems in the current research on the Civil Code: (1) the researchers should avoid being merely the porters of certain concepts and categories when applying the basic categorical methods, and shall be fully understand each category in the specifi c areas and the latest achievements of related research, avoiding taking the words simply literally; (2) the related various systems and categories should be interpreted basing on the spirit of the age and the characteristics of the rule of law in China, and we should pay attention to the differences and organic links between them; (3) the four categories mostly often be applied by the researchers from the internal system of the civil code, lacking of the comprehensively combination of the internal and external perspectives.

scholarly journals Development Strategy – Towards Sustainable Development

2021 ◽  
Vol 03 (02) ◽  
pp. 33-37
Author(s):  
Yuldasheva Nargiza Doston Qizi ◽  
Keyword(s):  
Sustainable Development ◽  
Foreign Policy ◽  
Development Strategy ◽  
Rule Of Law ◽  
Judicial System ◽  
Religious Tolerance ◽  
The Rule Of Law ◽  
Social Sphere ◽  
The Social ◽  
State And Society

The article examines five priorities of the country development. These include improving the construction of the state and society, ensuring the rule of law and reforming the judicial system, further developing and liberalizing the economy, developing the social sphere, ensuring security, interethnic harmony and religious tolerance. is to conduct foreign policy in a mutually beneficial and practical spirit.

PROBLEM ASPECTS OF CONSTITUTIONALITY AND APPLICATION OF ART. 375 OF THE CRIMINAL CODE OF UKRAINE

2018 ◽  
Author(s):  
Hryhoriy Krainyk ◽  
◽  
Vitaliy Perzhul ◽  
Oleksandr Hailiunas ◽  
◽  
...  
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Legal System ◽  
Criminal Code ◽  
The Body ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
European Court ◽  
Special Part ◽  
Principles And Standards

This article is devoted to the analysis of positions of the article 375 of Criminal Code of Ukraine, which recently kept the action, while Constitutional Court of Ukraine did not make decision about it’s unconstitutionality. In work we analyzed the Constitutional Court’s decisions and practice, analyzed possible options for criminalization and decriminalization in Ukrainian criminal law. The practice of legal application about article 375 of the Criminal Code of Ukraine, exactly, the rendering by a judge of a knowingly unjust decision. The focus is on the fact that the courts are deciding these cases, in some aspects, they understand the scope of the named norm of criminal law differently, which leads to different enforcement. In this regard, we investigated diametrically opposed positions of reputable scientists regarding this norm and possible options of its new edition. Authorities also disagree with the separate opinion of the judges of the Constitutional Court of Ukraine, in regard to contradictions of the constitutional norms, which regulate the process of adopting laws to declare them unconstitutional, and the legal force of such decisions. The practice of the European Court of Human Rights is also an important part of the work, which has repeatedly noted a similar problem in the legal system of Ukraine. Therefore, apart from the constitutionality of the norm of rendering a court decision in an inappropriate manner, the work of the authors includes an important discussion of the systemic gap that exists in the context of the process of adoption and/or rejection of the law. It should also be noted that the court practice regarding article 375 of the Criminal Code of Ukraine is quite varied, which today does not make it possible to form some unified and uncontroversial approaches asto whatrole the existence of the Criminal Code's article on a judge's rendering of an unjust decision in the relevant version has had for some time. Summarizing the main points, we believe that the legislator should avoid ambiguous and controversial formulations in the disposition of the articles of the Special Part of the Criminal Code of Ukraine in future. For an effective solution of this problem there is a project, which is currently being worked on and which is called to impose liability for rendering an invalid verdict, but to do it in those kind of form, so that the body of constitutional jurisdiction would not have any claims against it in the context of unconstitutionality. Exactly this legal balance will allow us to speak about the closeness to the sphere of criminal law to the principles and standards of the rule of law, that are inherent in most states with a developed legal system.

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