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.

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 Enlightenment of American Legal Theory and Practice of "Piercing the Corporate Veil" to China

2021 ◽  
Vol 14 (4) ◽  
pp. 80
Author(s):  
Minghao Li
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Theory ◽  
Common Law ◽  
Theory And Practice ◽  
The Rule Of Law ◽  
Law System ◽  
Piercing The Corporate Veil ◽  
Civil Law System ◽  
Day By Day

Observing the current legal system and theory of America, "piercing the corporate veil" is in a state of "chaos" in both of them. How can China learn from the rule of law and the theory of "piercing the corporate veil"? How to avoid its harm and gain its benefits? Due to different national conditions and judicial systems, also differences between civil law system and common law system, and at the same time, the world is in the era of globalization, the exchange of legal culture of Chinese legal system is expanding and deepening day by day. Therefore, it is necessary to study the rule and theory of "piercing the corporate veil". This paper systematically summarizes the current situation of the rule and theory of "piercing the corporate veil" in America, explores the causes of the confusion, and puts forward some suggestions to prevent the occurrence of problems in China after transplanting this rule, which is very necessary and timely.

scholarly journals Legality of Rule of Law with Chinese Characteristics: A Case of “Ultra-Sinoism”

2020 ◽  
Vol 8 (4) ◽  
pp. 53-91
Author(s):  
Ammar Younas
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Institutional Innovation ◽  
Socialist Society ◽  
Constitutional Amendments ◽  
The Rule Of Law ◽  
State Institutions ◽  
Economic Progress ◽  
Chinese Characteristics ◽  
Political Theories

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.

scholarly journals MEMBANGUN POLITIK HUKUM INDONESIA BERCORAK RESPONSIF PERSPEKTIF IUS CONSTITUENDUM

2016 ◽  
Vol 5 (2) ◽  
pp. 233
Author(s):  
Nur Sodiq
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Common Law ◽  
Political Reform ◽  
Progressive Politics ◽  
The Rule Of Law ◽  
Law System ◽  
Political Policy ◽  
Common Law System ◽  
The Times

Legal establishment of a joint legislative task of the executive. Law concretely manifest in a legislation. The times are always accompanied by a society is demands, which is in line with the progress of the development of science and technology globally. Functions of the state in charge of all the rules to organize and meet the needs of its citizens is done throught legal political policy. The law requires the develoment of a progressive politics that is always dynamic. Resonsibility society must be accomodated in e lagislation. Shades of the Indonesian legal system of formal legalistif formal positiviestic character is not aspirational again in the resolution of lawsuits that are very dynamic and responsive at this time, for the next legislators and executive branches in the establishment of the rule of law it is time to shift the mindset forwards the type of legal realistic, practical and progressive. Guidelines used by the legislators it was time to adopt, replicate and wear character types law the families of law outside continental Europe, one of which types and styles of breath common law system. All toward political reform law is realized through the establishment of policies that must be taken for the ralization of the type of welfare state. Pembentukan hukum merupakan tugas legislatif bersama eksekutif. Hukum secara konkrit dirumuskan dalam suatu perundang-undangan. Perkembangan hukum selalu diiringi oleh berbagai tuntutan kebutuhan masyarakat, yang seiring dan sejalan dengan kemajuan perkembangan ilmu pengetahuan dan teknologi baik secara nasional maupun global. Fungsi negara dalam mengisi segala aturan untuk menyelenggarakan dan memenuhi kebutuhan hidup warganya dilakukan melalui kebijakan politik hukumnya. Pembangunan politik hukum memerlukan progresivitas yang dinamis. Responsivitas kebutuhan masyarakat mesti dapat tertampung dan diakomodir dalam suatu peraturan perundang-undangan. Corak sistem hukum Indonesia yang berwatak positivistik legalistik formal sudah tidak aspiratif lagi dalam penyelesaian tuntutan hukum yang sangat dinamis dan responsif saat ini. Dengan demikian ke depan diharapkan para legislatif dan eksekutif dalam pembentukan norma hukum sudah saatnya menggeser pola pikir ke arah tipe hukum realistis, praktis dan progresif. Pedoman yang dipakai dalam membentuk undang-undang sudah saatnya mengadopsi, maupun meniru dan memakai tipe-tipe karakter hukum keluarga diluar hukum Eropa kontinental, salah satunya tipe dan corak nafas hukum common law system. Semua arah pembangunan pembentukan hukum diwujudkan melalui kebijakan yang mesti diambil demi terwujudnya tipe negara kesejahteraan.

Rule of law and the scope of interpretation of legislative provisions in the process of judicial and administrative review. Remarks against the background of the phenomenon of „lawmaking” of administrative courts

2021 ◽  
Vol 2(24) ◽  
pp. 373-387
Author(s):  
Przemysław Wilczyński
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Legal System ◽  
The Rule Of Law ◽  
Basic Criterion ◽  
Administrative Review ◽  
Administrative Courts ◽  
The Republic ◽  
Insight Into

The rule of law, as stipulated in article 7 of the Constitution of the Republic of Poland, is one of the fundamental principles shaping the functioning of public administration in the Republic of Poland. Legality of the functioning of public administration is also accepted as the basic criterion of judicial and administrative review of the actions taken by the administration. However, judgments of administrative courts often go outside the boundaries of findings that could be made based on linguistic interpretation of legislative provisions, by referring to the rules of the legal system, including in cases where no doubts exist with regards to the interpretation of provisions. The aim of this paper is to offer insight into the basis and nature of doubts encountered with regards to the admissibility of the use of non-linguistic interpretation by administrative courts where the use of such interpretation does not appear to be required.

scholarly journals In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar’s ‘Disciplined Democracy’

2018 ◽  
Vol 28 (5) ◽  
pp. 573-599
Author(s):  
Alex Batesmith ◽  
Jake Stevens
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
State Power ◽  
Human Experience ◽  
Legal Systems ◽  
Material Support ◽  
The Rule Of Law ◽  
Alternative Perspective ◽  
The Individual ◽  
Individual Human

This article explores how ‘everyday’ lawyers undertaking routine criminal defence cases navigate an authoritarian legal system. Based on original fieldwork in the ‘disciplined democracy’ of Myanmar, the article examines how hegemonic state power and a functional absence of the rule of law have created a culture of passivity among ordinary practitioners. ‘Everyday’ lawyers are nevertheless able to uphold their clients’ dignity by practical and material support for the individual human experience – and in so doing, subtly resist, evade or disrupt state power. The article draws upon the literature on the sociology of lawyering and resistance, arguing for a multilayered understanding of dignity going beyond lawyers’ contributions to their clients’ legal autonomy. Focusing on dignity provides an alternative perspective to the otherwise often all-consuming rule of law discourse. In authoritarian legal systems, enhancing their clients’ dignity beyond legal autonomy may be the only meaningful contribution that ‘everyday’ lawyers can make.

scholarly journals Developing an Index of the Rule of Law: Sharing the Experience of Hong Kong

2007 ◽  
Vol 2 ◽  
pp. 1-19 ◽  
Author(s):  
Benny Y.T. Tai
Keyword(s):  
Hong Kong ◽  
Rule Of Law ◽  
Legal System ◽  
Downward Trend ◽  
Legal Systems ◽  
Major Aspect ◽  
The Rule Of Law ◽  
Qualitative And Quantitative

AbstractThe Rule of Law is considered a major aspect of modern governance. For every legal system, it is important whether the Rule of Law is attained and how far it has been attained. Though there are various indicators and indexes of the Rule of Law they all have their limitations. This paper reported a study conducted in Hong Kong in 2005, combining qualitative and quantitative methodologies, to assess the level of attainment of the Rule of Law in Hong Kong. It is found that the level of attainment is high but a downward trend is also discovered. A main objective of developing this new methodology in assessing Rule of Law, is that it could be used for tracking the development of the Rule of Law in a particular legal system and facilitating comparison between legal systems.

scholarly journals Methods, principles and presumptions of constitutional and conflict diagnostics

2021 ◽  
Vol 7 (2) ◽  
pp. 34-41
Author(s):  
I. A. Tretyak
Keyword(s):  
Law Enforcement ◽  
Causal Relationship ◽  
Statistical Methods ◽  
Rule Of Law ◽  
Systematic Study ◽  
Constitutional Law ◽  
Formal Logic ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Legal Method

The article examines the main elements of constitutional and conflict diagnostics, which is a system of consistently applied methods, legal principles and presumptions, aimed at obtaining information about the causes, content, consequences and methods of preventing and resolving a constitutional conflict. Constitutional and conflict diagnostics is theoretically justified by the author as a new method of the science of constitutional law, which allows lawyers to study constitutional conflicts and constitutional norms of the conflictological type. The use of constitutional and conflict diagnostics will allow to establish and investigate the causal relationship between the formation of law, its normative expression and subsequent law enforcement, which will reflect the constitutional conflict. The author believes that the following methods are used in the course of diagnosing a constitutional conflict: dialectical, systematic, historical, statistical, methods of formal logic, formal-legal method, method of legal modeling, and other methods. The author also proposes to consider as the principles of such diagnostics: the principle of taking into account the specific historical situation, dialectical unity, systematic study of the conflict and the principle of the rule of law. The author suggests considering the following presuppositions used in the course of constitutional and conflict diagnostics: the presumption of the inevitability of constitutional conflicts, the presumption of the solvability of constitutional conflicts, and the presumption of the prevention of conflicts.

scholarly journals THE INFLUENCE OF CIVIL CODE ON ECONOMIC LAW

2021 ◽  
Author(s):  
YUN-LING YU
Keyword(s):  
Economic Development ◽  
Market Economy ◽  
Legal System ◽  
Civil Law ◽  
Civil Code ◽  
Socialist Market Economy ◽  
Economic Law ◽  
Chinese Characteristics ◽  
The Relationship ◽  
Socialist Market

The promulgation of the "Civil Code" provides a path for the codification of other important legal departments closely related to the socialist market economy and the improvement of the socialist legal system with Chinese characteristics. However, due to the fact that the development of economic law in our country is relatively short and the economic development is changing rapidly, the current economic code is facing numerous obstacles. This article analyzes the relationship between civil law and economic law, drawing on the innovation of the content of the Civil Code, and puts forward new requirements for the development of the content, concept and system of economic law, and promotes the development of economic law.

scholarly journals A European convergence towards a stare decisis model?

2015 ◽  
pp. 173 ◽  
Author(s):  
Stefano Civitarese
Keyword(s):  
Rule Of Law ◽  
Deep Understanding ◽  
The European Union ◽  
Stare Decisis ◽  
The Rule Of Law ◽  
Law System ◽  
Legal Space ◽  
The One ◽  
The Relationship

The article revolves around the doctrine of precedent within the so-called European legal space, wondering whether and to what extent we can speak of a convergence towards a stare decisis model boosted by the harmonizing role of the Court of Justice of the European Union. The article argues that although there are still some differences between civil law and common law legal systems they regard more the style of reasoning and the deep understanding of the relationship between the present decision of a court and past judicial decisions than the very existence of the constraints of the latter upon the former. The article concludes that a sort of mechanism of stare decisis has in fact been created, even though, on the one hand, uncertainty remains as to the way in which the binding force of a precedent concretely operates in the system, and on the other hand, this mechanism relates exclusively to the relationships between past and future decisions of higher courts (horizontal effect). This change, far from being a shift towards a truly judge-made law system or a consequence of the final abandonment of the dictates of the rule of law, enhances legal certainty contributing to the fundamental requirement of stability of law as a feature of the ideal of the rule of law.

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