scholarly journals Conflicts between Civil Law and Common Law in Judgment Recognition and Enforcement: When is the Finality Dispute Final?

2021 ◽  
Author(s):  
Jie Huang
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
Civil Law ◽  
Mainland China ◽  
Eu Law ◽  
Three Solutions ◽  
Chinese Law ◽  
Recognition And Enforcement ◽  
The Law

Very little literature concerns conflicts between civil law and common law requirements for judgment recognition and enforcement (JRE) and grounds for refusing JRE. This paper intends to fill this gap by using the finality dispute between Mainland China and Hong Kong as an example. It compares relevant Chinese law, Hong Kong law, U.S. law, and EU law. It also analyzes Mainland judicial statistics from 1999 to 2010. It argues that Hong Kong courts inappropriately apply the law of the requested court to determine the finality of a Mainland judgment in the judgment recognition and enforcement proceedings. It proposes three solutions to solve the finality dispute between Mainland China and Hong Kong: amend Hong Kong law, amend Mainland law, or adopt interregional law approaches.

scholarly journals Legal Hybridity in Hong Kong and Macau

2012 ◽  
Vol 57 (4) ◽  
pp. 665-720 ◽  
Author(s):  
Ignazio Castellucci
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
Critical Role ◽  
Civil Law ◽  
Mainland China ◽  
Legal Systems ◽  
Critical Revision

The article aims to compare the case of the two Chinese Special Administrative Regions (SARs) of Hong Kong and Macau against the theoretical grid developed by Vernon V. Palmer to describe the “classical” civil law-common law mixed jurisdictions. The results of the research include an acknowledgement of the progressive hybridization of the legal systems of Hong Kong and Macau, hailing from the English common law and the Portuguese civil law tradition, respectively, by infiltration of legal models and ideologies from Mainland China. The research also leads to a critical revision and refinement of the methodology and tools developed by Palmer in order to make them applicable to a wider range of processes of legal hybridization beyond “classical” mixes, and to a better appreciation of how transitional political and institutional phases play a critical role inlegal “mixity” or hybridity.

Contract Formation in Hong Kong

2018 ◽  
Author(s):  
Lusina HO
Keyword(s):  
Hong Kong ◽  
Social Context ◽  
Common Law ◽  
General Rule ◽  
Good Faith ◽  
Local Context ◽  
General Duty ◽  
Contract Formation ◽  
Formal Requirement ◽  
The Law

This chapter examines the law on contract formation in Hong Kong which is closely modelled on the English common law but adapts the English solutions to the local context if and when required. The test for ascertaining the parties’ meeting of the minds is objective, the agreement (an offer with a matching acceptance) must be certain, complete, and made with the intention to create legal relations—the latter being presumed to be present in a commercial context and absent in a familial or social context. Offers are freely revocable although the reliance of the offeree is protected in exceptional circumstances. Acceptances become effective as soon as they are dispatched. In the ‘battle of forms’ scenario, the Hong Kong courts follow the traditional ‘last-shot’ rule. There is no general duty to negotiate in good faith, and even agreements to negotiate in good faith are normally unenforceable for lack of certainty. As a general rule, contracts can be validly made without adhering to any formal requirement. Online contracts will normally be valid and enforceable; the formation of such contracts is governed by common law as supplemented by legislation.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

Towards a Transsystemic Study of the Ghana Legal System

2017 ◽  
Vol 6 (1) ◽  
pp. 25-50
Author(s):  
Poku Adusei
Keyword(s):  
Legal System ◽  
Academic Discipline ◽  
Common Law ◽  
Civil Law ◽  
Cross Cultural ◽  
Legal Tradition ◽  
Legal Traditions ◽  
The Law ◽  
Cultural Dialogue

This article provides comprehensive insights into the study of the Ghana legal system as an academic discipline in the law faculties in Ghana. It urges the view that the study of the Ghana legal system, as an academic discipline, should be transsystemic. Transsystemic pedagogy consists in the introduction of ideas, structures and principles which may be drawn from different legal traditions such as civil law, common law, religion-based law, African law and socialist law traditions to influence the study of law. Transsystemia involves teaching law ‘across,’ ‘through,’ and ‘beyond’ disciplinary fixations associated with a particular legal system. It is a mode of scholarship that defies biased allegiance to one legal tradition in order to foster cross-cultural dialogue among legal traditions. It involves a study of law that re-directs focus from one concerned with ‘pure’ legal system to a discourse that is grounded on multiple legal traditions.

Jie Huang: Interregional Recognition and Enforcement of Civil and Commercial Judgments

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Tan Lee Cheng
Keyword(s):  
Hong Kong ◽  
Comparative Study ◽  
Mainland China ◽  
Status Quo ◽  
The Us ◽  
Two Systems ◽  
The Status ◽  
Recognition And Enforcement ◽  
One Country Two Systems ◽  
The One

AbstractReview of “Interregional Recognition and Enforcement of Civil and Commercial Judgments” by Professor Jie Huang (Oxford and Portland, Oregon: Hart Publishing, 2014) which analyses the status quo of judgment recognition and enforcement in the Mainland China, Macao and Hong Kong under the ‘One Country, Two Systems’ regime. The book also presents a comparative study of the interregional recognition and enforcement of judgments in the US and EU.

Jie Huang: Interregional Recognition and Enforcement of Civil and Commercial Judgments, Oxford and Portland, OR: Hart Publishing, 2014, 352 pp. Hardcover £65/€84.50

2014 ◽  
Vol 9 ◽  
pp. 381-385
Author(s):  
Tan Lee Cheng
Keyword(s):  
Hong Kong ◽  
Comparative Study ◽  
Mainland China ◽  
Status Quo ◽  
The Us ◽  
Two Systems ◽  
The Status ◽  
Recognition And Enforcement ◽  
One Country Two Systems ◽  
The One

AbstractReview of “Interregional Recognition and Enforcement of Civil and Commercial Judgments” by Professor Jie Huang (Oxford and Portland, Oregon: Hart Publishing, 2014) which analyses the status quo of judgment recognition and enforcement in the Mainland China, Macao and Hong Kong under the ‘One Country, Two Systems’ regime. The book also presents a comparative study of the interregional recognition and enforcement of judgments in the US and EU.

The Neuroscientific Non-Challenge to Meaning, Morals, and Purpose

2018 ◽  
Author(s):  
Stephen J. Morse
Keyword(s):  
Legal System ◽  
Criminal Responsibility ◽  
Human Life ◽  
Common Law ◽  
Civil Law ◽  
New Challenges ◽  
The Law ◽  
Legal Concepts

Stephen J. Morse argues that neuroscience raises no new challenges for the existence, source, and content of meaning, morals, and purpose in human life, nor for the robust conceptions of agency and autonomy underpinning law and responsibility. Proponents of revolutionizing the law and legal system make two arguments. The first appeals to determinism and the person as a “victim of neuronal circumstances” (VNC) or “just a pack of neurons” (PON). The second defend “hard incompatibilism. ” Morse reviews the law’s psychology, concept of personhood, and criteria for criminal responsibility, arguing that neither determinism nor VNC/PON are new to neuroscience and neither justifies revolutionary abandonment of moral and legal concepts and practices evolved over centuries in both common law and civil law countries. He argues that, although the metaphysical premises for responsibility or jettisoning it cannot be decisively resolved, the hard incompatibilist vision is not normatively desirable even if achievable.

UNEXCUSED REASONABLE MISTAKES: CAN THE CASE FOR NOT EXCUSING MISTAKES OF LAW BE SUPPORTED BY THE CASE FOR NOT EXCUSING MISTAKES OF MORALITY?

Legal Theory ◽  
2015 ◽  
Vol 21 (2) ◽  
pp. 86-99
Author(s):  
Alexander A. Guerrero
Keyword(s):  
Common Law ◽  
Civil Law ◽  
False Belief ◽  
Moral Ignorance ◽  
The Law

ABSTRACTIn most common-law and civil-law jurisdictions, mistakes of law do not excuse. That is, the fact that one was ignorant of the content or requirements of some law does not excuse violations of that law. Many have argued that this doctrine is mistaken. In particular, many have argued that if an individual's ignorance or false belief is blameless, if she held the false belief reasonably, then she ought to be able to use that ignorance as an excuse for violating the law. It is much harder to find defenders of the doctrine, despite its prevalence. Pragmatic considerations are occasionally offered on its behalf, but these are generally not impressive. In this paper, I consider a more direct kind of justification for the doctrine, one that attempts to identify something more immediately normatively objectionable about being ignorant of the law. In particular, I consider an argument that suggests that legal ignorance is more like moral ignorance than like nonmoral ignorance and maintains that even nonculpable moral ignorance does not excuse.

Unjustified Enrichment in Comparative Perspective

2006 ◽  
pp. 968-1002
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Perspective ◽  
The Future ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Level Of Understanding ◽  
Unjustified Enrichment

Unjustified enrichment confronted both civil and common lawyers with thinking which was often completely outside the paradigm to which they had become accustomed. The recognition of unjustified enrichment as a cause of action in its own right in English law created a new arena of uncertainty between the systems. This article argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment. It may help to uncover the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

In Our Image: Colonial Discourse and the Anglicization of the Law of Mandatory Palestine

1995 ◽  
Vol 29 (3) ◽  
pp. 291-359 ◽  
Author(s):  
Assaf Likhovski
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Personal Injury ◽  
Colonial Discourse ◽  
Tel Aviv ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
Shoulder Blade

My story is full of holes. The first hole, or rather, ditch, was dug in 1930 by the municipality of Haifa. An Arab, Dr. Caesar Khoury, fell into the ditch and fractured his shoulder-blade.Could Dr. Khoury recover? The law of torts of mandatory Palestine was found in the Mejelle — an Ottoman code of Moslem civil law. Did the Mejelle provide a remedy in the case of personal injury? “Unfortunately,” said Judge Francis Baker, who delivered the opinion of the Supreme Court of Palestine, “the Mejelle dealt with liability for damages caused by animals to property, but it was ‘silent’ with regards to injuries caused to persons”. Therefore, Dr. Khoury could not recover.The second hole in my story belongs to a Jew, Feivel Danovitz. In 1939, Danovitz was run down by a truck in Tel Aviv. He sued the driver and the owner of the truck. The lower courts of Tel Aviv decided that if the Mejelle did not deal with liability for personal injury, that meant that there was a hole in the tort law of Palestine. Such a hole could be filled by recourse to the English common law in accordance with the provisions of Article 46 of the Palestine Order-in-Council, 1922. Since the English common law recognized liability for personal injury, Danovitz could recover.

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