Author: Cornelis Hendrik (Remco) van Rhee
Release Date: 2017-02-20
This edited volume looks at supreme courts in China and the West. It examines the differences and similarities between the Supreme People’s Court of Mainland China and those that follow Western models. It also offers a comparative study of a selection of supreme courts in Europe and Latin America. The contributors argue that the Supreme Courts should give guidance to the development of the law and provide legal unity. For China, the Chinese author argues, that therefore there should be more emphasis on the procedure for reopening cases. The chapters on Western-style supreme courts argue that there should be adequate access filters; the procedure of reopening cases is considered to be problematic from the perspective of the finality of the administration of justice. In addition, the authors discuss measures that allow supreme courts in both regions to deal with their existing caseload, to reduce this caseload, and to avoid divergences in the case law of the supreme court. This volume offers ideas that will help supreme courts in both the East and the West to remove unmanageable caseloads. As a result, these courts will be better able to assist in the interpretation and clarification of the law, to provide for legal unity, and to give guidance to the development of the law.
Author: C.H. van Rhee
Publisher: Springer Science & Business Media
Release Date: 2013-12-03
This volume addresses the role of the judge and the parties in civil litigation in mainland China, Hong Kong and various European jurisdictions. It provides an overview and an analysis of how these respective roles have been changed in order to cope with growing caseloads and quality demands. It also shows the different approaches chosen in the jurisdictions covered. Mainland China is introducing far-reaching reforms in its system of civil litigation. From an inquisitorial procedure, in which the parties play a relatively minor role, the country is changing to a more adversarial system with increased powers for the parties. At the same time, case management and the role of the judge as it is understood in mainland China remains different from case management and the role of the judge in Western countries, mainly as regards the limited powers of individual Chinese judges in this respect. Changes in China are justified by the ever-increasing case load of the Chinese courts and the consequent inability to deal with cases in an adequate manner, even though generally speaking Chinese courts still adjudicate civil cases within a relatively short time frame (this may, however, be problematic when viewed from the perspective of the quality of adjudication). Growing caseloads and quality concerns may also be observed in various European states and Hong Kong. In these jurisdictions the civil procedural systems have a relatively adversarial character and it is some of the adversarial features of the existing systems of procedure which are felt to be problematic. Therefore, the lawmakers have opted for increasing the powers of the judge, often making the judge and the parties mutually responsible for the proper conduct of civil cases. Starting from opposite directions, mainland China and the various European states and Hong Kong could meet half way in their reform attempts. This is, however, only possible if a proper understanding is fostered of the developments in these different parts of the World. Even though in both China and Europe the academic community and lawmakers are showing a keen interest in the relevant developments abroad, a study addressing the role of the judge and the parties in civil litigation in both China and Europe is still missing. This book aims to fill this gap in the existing literature.
Author: Alan Uzelac
Publisher: Springer Science & Business Media
Release Date: 2014-01-11
This book is a collection of papers that address a fundamental question: What is the role of civil justice and civil procedure in the various national traditions in the contemporary world? The book presents striking differences among a range of countries and legal traditions, but also points to common trends and open issues. It brings together prominent experts, professionals and scholars from both civil and common law jurisdictions. It represents all main legal traditions ranging from Europe (Germanic and Romanic countries, Scandinavia, ex-Socialist countries) and Russia to the Americas (North and South) and China (Mainland and Hong Kong). While addressing the main issue – the goals of civil justice – the book discusses the most topical concerns regarding the functioning and efficiency of national systems of civil justice. These include concerns such as finding the appropriate balance between accurate fact-finding and the right to a fair trial within a reasonable time, the processing of hard cases and the function of civil justice as a specific public service. In the mosaic of contrasts and oppositions special place is devoted to the continuing battle between the individualistic/liberal approach and the collectivist/paternalistic approach – the battle in which, seemingly, paternalistic tendencies regain momentum in a number of contemporary justice systems.
Author: William Slomanson
Publisher: Cengage Learning
Release Date: 2010-01-01
Genre: Political Science
In a fairly succinct treatment, FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW provides a unique mix of cases, articles, documents, text, charts, tables, and questions. The key concepts of international law are introduced through thoroughly up-to-date content. Important cases are continually updated on the author’s website. The text is complemented by numerous review problems. Important Notice: Media content referenced within the product description or the product text may not be available in the ebook version.
Author: Rainer Arnold
Release Date: 2017-06-23
Judicial control of public power ensures a guarantee of the rule of law. This book addresses the scope and limits of judicial control at the national level, i.e. the control of public authorities, and at the supranational level, i.e. the control of States. It explores the risk of judicial review leading to judicial activism that can threaten the principle of the separation of powers or the legitimate exercise of state powers. It analyzes how national and supranational legal systems have embodied certain mechanisms, such as the principles of reasonableness, proportionality, deference and margin of appreciation, as well as the horizontal effects of human rights that help to determine how far a judge can go. Taking a theoretical and comparative view, the book first examines the conceptual bases of the various control systems and then studies the models, structural elements, and functions of the control instruments in selected countries and regions. It uses country and regional reports as the basis for the comparison of the convergences and divergences of the implementation of control in certain countries of Europe, Latin America, and Africa. The book’s theoretical reflections and comparative investigations provide answers to important questions, such as whether or not there are nascent universal principles concerning the control of public power, how strong the impact of particular legal traditions is, and to what extent international law concepts have had harmonizing and strengthening effects on internal public-power control.
Author: Attila Badó
Publisher: Springer Science & Business Media
Release Date: 2013-10-23
This comprehensive publication analyzes numerous aspects of the relationship between judicature and the fair trial principle in a comparative perspective. In addition, it examines the manifestation of some of the most significant elements inherent to the fair trial concept in different legal systems. Along with expansion of judicial power during the past century and with the strengthening of judicial independence, the fair trial requirement has appeared more often, especially in different international agreements and national constitutions, as the summarizing principle of what were formerly constitutional principles pertaining to judicature. Despite its generality and supranational application, the methods of interpreting this clause vary significantly among particular legal systems. This book assumes that the substantive content of this term conveys relevance to the organizational independence of judicial power, the selection of judges, and the mutual relationship between the branches of power. The comparative studies included in this collection offer readers a widespread understanding of the aforementioned correlations and will ultimately contribute to their mastery of the concept of fair trial.
This book is exceptional in the sense that it provides an introduction to law in general rather than the law of one specific jurisdiction, and it presents a unique way of looking at legal education. It is crucial for lawyers to be aware of the different ways in which societal problems can be solved and to be able to discuss the advantages and disadvantages of different legal solutions. In this respect, being a lawyer involves being able to reason like a lawyer, even more than having detailed knowledge of particular sets of rules. Introduction to Law reflects this view by focusing on the functions of rules and on ways of arguing the relative qualities of alternative legal solutions. Where ‘positive’ law is discussed, the emphasis is on the legal questions that must be addressed by a field of law and on the different solutions which have been adopted by, for instance, the common law and civil law tradition. The law of specific jurisdictions is discussed to illustrate possible answers to questions such as when the existence of a valid contract is assumed.
Author: William van Caenegem
Release Date: 2017-04-09
This book explores the potential benefits and disadvantages of geographical indication (GIs) registration schemes, analyzing the utility of GI registrations for the development and promotion of regional economies, both in national and international markets. The book draws on the van Caenegem, Cleary & Drahos Australian Provenance Report, along with the valuable empirical data collected in connection with it. The book situates the rural development question in an international context, presenting several case studies from Italy, France and Morocco, New Zealand and Australia. The book contains various chapters focused on comparing regulatory structures in various relevant jurisdictions and drawing on other countries’ experiences. It contains significant contributions from industry actors with extensive experience in regional branding initiatives and GI-related policy issues. Progressive in structure, the book starts from the ‘big picture’ level before moving down to the local and concrete scale. Geographical indications of Australian products are vital both in domestic and overseas markets by accurately representing the origin and quality of niche agricultural products. Thus, with a particular focus on Australia, the book promotes the assessment of geographical indications as potential regional assets that will help producers develop local quality indicators that will serve as public goods for successive generations of producers.
Author: Junwei Fu
Publisher: Kluwer Law International
Release Date: 2011
This comparative study of European and Chinese contract law opens a clear and practical way to identify and understand the differences between the two legal regimes. The author offers a detailed doctrinal comparison of the two systems of contract, focusing on the following fundamental elements: * the importance of socio-economic valuation in Chinese contract law; * the role of judicial interpretation; * pre-contractual liability - penalties for bad faith, disclosure versus concealment; * validity - mistake, fraud, threats, unfair bargaining power; * adaptation and termination - effect of registration and approval rules; * mandatory rules - good faith and fair dealing, the public interest; and * direct application of constitutional law to contracts. The book's special power lies in its extraordinarily thorough comparison of doctrines underlying specific provisions of such instruments as the Contract Law of the People's Republic of China (CLC), the General Principles of the Civil Law of the People's Republic of China (GPCL), the Principles of European Contract Law (PECL), and the Draft Common Frame of Reference (DCFR), as well as analysis of judicial cases.
This volume is devoted to exploring a subject which, on the surface, might appear to be just a trending topic. In fact, it is much more than a trend. It relates to an ancient, permanent issue which directly connects with people’s life and basic needs: the recognition and protection of individuals’ dignity, in particular the inherent worthiness of the most vulnerable human beings. The content of this book is described well enough by its title: ‘Human Dignity of the Vulnerable in the Age of Rights’. Certainly, we do not claim that only the human dignity of vulnerable people should be recognized and protected. We rather argue that, since vulnerability is part of the human condition, human vulnerability is not at odds with human dignity. To put it simply, human dignity is compatible with vulnerability. A concept of human dignity which discards or denies the dignity of the vulnerable and weak is at odds with the real human condition. Even those individuals who might seem more skilled and talented are fragile, vulnerable and limited. We need to realize that human condition is not limitless. It is crucial to re-discover a sense of moderation regarding ourselves, a sense of reality concerning our own nature. Some lines of thought take the opposite view. It is sometimes argued that humankind is – or is called to be – powerful, and that the time will come when there will be no vulnerability, no fragility, no limits at all. Human beings will become like God (or what believers might think God to be). This perspective rejects human vulnerability as in intrinsic evil. Those who are frail or weak, who are not autonomous or not able to care for themselves, do not possess dignity. In this volume it is claimed that vulnerability is an inherent part of human condition, and because human dignity belongs to all individuals, laws are called to recognize and protect the rights of all of them, particularly of those who might appear to be more vulnerable and fragile.
"Introduction to Public Law" is a historical and comparative introduction to public law. The book traces back the origins of the "res publica" to Roman law and analyzes the course of its development, first during the monarchical age in continental Europe and England, and then during the republican age that began at the end of the eighteenth century with the democratic revolutions in the United States and France. For each period and country, the book analyzes the major concepts of public law and their transformations: sovereignty, the state, the statute, the separation of powers, the public interest, and administrative justice.
Author: Harold J. Berman
Publisher: Harvard University Press
Release Date: 2009-06-01
The roots of modern Western legal institutions and concepts go back nine centuries to the Papal Revolution, when the Western church established its political and legal unity and its independence from emperors, kings, and feudal lords. Out of this upheaval came the Western idea of integrated legal systems consciously developed over generations and centuries. Harold J. Berman describes the main features of these systems of law, including the canon law of the church, the royal law of the major kingdoms, the urban law of the newly emerging cities, feudal law, manorial law, and mercantile law. In the coexistence and competition of these systems he finds an important source of the Western belief in the supremacy of law. Written simply and dramatically, carrying a wealth of detail for the scholar but also a fascinating story for the layman, the book grapples with wideranging questions of our heritage and our future. One of its main themes is the interaction between the Western belief in legal evolution and the periodic outbreak of apocalyptic revolutionary upheavals. Berman challenges conventional nationalist approaches to legal history, which have neglected the common foundations of all Western legal systems. He also questions conventional social theory, which has paid insufficient attention to the origin of modem Western legal systems and has therefore misjudged the nature of the crisis of the legal tradition in the twentieth century.