Party Ideology and Chinese Law

Bali, as a province with strong roots in local cultural traditions and significant economic importance for Indonesia, is striving to balance modernity and tradition, economics, especially mass tourism, and cultural identity. This is why Universitas Warmadewa, one of the largest Balinese universities, chooses the theme ‘Local Wisdom and Business Law’ for its international conferences each year.As a non-Indonesian legal scholar, this theme presents two challenges for me. Firstly, I am not an expert in tourism economics and can only approach the topic from a traditional market law perspective, theoretically. Secondly, the terms used in Indonesian legal discussions may seem vague and unclear from a German perspective, as the legal discussion in Indonesia integrates traditional legal phenomena pragmatically into the applicable legal system. This may also be historically conditioned because since independence Indonesia has to handle a legal pluralism in law, which also finds its cause in the legacy of the colonial era.When speaking on the legal perspective of ‘local wisdom’, several questions are unclear to me:What exactly is local wisdom and how can it be defined?Where does it fit into the Indonesian legal system?What role can local wisdom play in contemporary law?Local wisdom may be understood as part of traditional customary law or Adat, at least in terms of its influence on legal issues, as the conference theme suggests. The terminology around ‘customary law’, ‘Adat’, ‘indigenous law’, or ‘living law’ is still a problematic issue in Indonesian scientific discussion and should only be briefly mentioned in this presentation. The term ‘Adat law’ was originally not used in Indonesian society and was first systematically used by the Dutch. Van Vollenhoven, considered the ‘father of Indonesian Adat law’ by Indonesian scholars, defined Adat law as law that is not based on codified legal rules from the legislator. This definition is still used by contemporary Indonesian scholars. Adat law in this sense contains sanctions, making the character of ‘law’. It was characterized by Van Vollenhoven as dynamic and flexible folk law, which combines the term with the often-used term of ‘living law’. There are numerous discussions in Indonesian literature about Indonesian customary law, its functions, and significance, but the terminology has not been clearly defined and the role of religious law is also subject to numerous publications.Therefore, having read various contributions on the topic, I am left confused because some of them discuss the existence of legal principles of living customary law and describe them as “national Indonesian principles,” which can replace parts of the post-colonial Indonesian law, but they do not clearly identify these principles. The topic seems to be of almost patriotic importance to Indonesia, making it particularly difficult for foreign scholars to approach the subject in presentations before Indonesian colleagues. My contribution should be seen in light of this difficulty, as a first observation of the phenomenon from a foreign perspective.The term Adat is already difficult to comprehend, and this is even more true for the term “local wisdom” in a legal context. So, what is the “Local Wisdom” that I am asked to talk about? The Terms of Reference of our conference describe the meaning of “local wisdom” mainly as the clash of market actors in local Balinese tourism that can lead to conflicts, which the law should resolve. These conflicts are said to occur because local communities and institutions, based on a kind of traditionally grown trust, seek to build and maintain their business relationships in the tourism industry. This trust, which one could call “traditional good faith,” meets the need to regulate contractual arrangements more formally in terms of contract law (“more official...instead of just relying on promises or good faith”).In this sense, local wisdom is an aspect of good faith. Based on this understanding of the term, I have no systematic issues with the term “local wisdom.” However, it should be noted that good faith and contract, as a predictable shaping of legal relationships between market actors, should not be seen as opposites. It is possible and necessary to resolve disruptions in contractual relationships in light of good faith and, if necessary, adapt contractual regulations. Here, “local wisdom” should not be understood as a unique source of good faith, but as a general aspect that can influence the expectations of the contracting parties and their trust in shaping the law. This raises the question of which factors should be taken into account by the non-local contracting party in good faith, and which should not. It is a question of the concrete assessment of the structure of interests and the balance of the contract, how to allocate risk and assign external aspects to the contracting parties and which aspects should be considered subsequently.This is a theoretical matter, and it is unlikely to play a significant role in practice since local market actors and communities have the freedom, within the framework of private autonomy, to incorporate their traditional interests into the contract negotiations. This allows for traditional interests to participate in the “equivalence justice” of the contract. However, if the traditional interests of the local community result in unacceptable consequences for the contract’s execution, the question of whether these reasons can lead to a change in the contract’s basis may arise. In civil law systems, the clausula rebus sic stantibus is regulated as a limitation of the pacta sunt servanda principle and falls under the principle of good faith (bona fides). If the invocation of “local wisdom” by one party leads to the other party having to agree to an adjustment, it would have to be examined.I would like to give you an example of this, which seems credible even if no prove about the issue can be delivered due to the ‘popular’ source: A person without Indonesian citizenship acquired the right to use a plot of land with a house in Bali ten years ago. Since foreigners cannot acquire land ownership in Indonesia themselves, the foreigner had agreed on a legal arrangement with an Indonesian citizen resident in Bali, in which the Indonesian acquired ownership (hak milik) of the land with the foreigner’s money and agreed on right to use for the foreign partner. After ten years, the foreigner wanted to sell the property again to move to his country of origin. The agreement with the Indonesian partner stipulated that the Indonesian partner must agree to the sale of the plot on the wish of the foreign partner and would receive 10% of the sale amount in the event of a sale. In the case described, however, the Indonesian partner seems to have refused to sell the property on the agreed terms. He was not satisfied with the 10% share and demanded a 70% share instead. As justification for this, he argued that the contract terms should be changed because he had spiritually enhanced the property over the years through certain religious rituals and this required a revaluation of his shareholding.It is not known whether the case was heard in an Indonesian court and how it was finally settled. Assuming the case had occurred as described, from the perspective of Indonesian civil law, it is clear that no change in the business basis of the contract occurred as a result of the Indonesian partner’s spiritual acts, which can lead to an adjustment of the agreement between him and the foreign contractual partner. Just as local communities depend on their interests in cultural identity being taken into account even in legal relations with partners coming from outside, foreign investors must be able to rely on certain standards of contractual obligation. The principle of good faith would be grotesquely overstretched if local contracting partners could use fuzzy notions of ‘local wisdom’ to make contractual arrangements more flexible in their favour.Another example of the clash between traditional legal customs and supra-regional legal ideas in highly traditional markets with supra-regional economic importance, such as Bali, is the handling of legal disputes and methods of dispute resolution. The trust of traditional communities in supra-legal ties of interest in business relationships, as mentioned in the Terms of Reference to this Conference, meets a systemic trust in formal contractual regulations of non-local actors. The reference points of trust of the respective groups of market actors thus differ. This also affects dispute resolution. According to Sulastriyono, the voluntary character of traditional customary law has the advantage over civil law methods of litigation and dispute resolution of a ‘win-win’ solution, which leads to greater acceptance of the solution by the parties to the conflict. In theory, this is undeniable. However, it is questionable whether this acceptance can also be achieved among contract participants who do not originate from the respective culture, because the existence of sufficient advantages for a party may well depend on the integration of the party in the respective local society. Moreover, the indisputable advantages of consensual dispute resolution can also be well integrated in state procedural law via mediation mechanisms.Cases such as the one outlined one above would in principle be likely to erode the confidence of foreign investors in Indonesian law in general if courts do not rule clearly and draw clear boundaries here. The example seems to be a particularly extreme case, but it shows how important it is to clearly determine the meaning and possible role of terms such as ‘local wisdom’ and ‘tradition’ for use in law. Culturally related aspects are prone to serve as a tool for discrimination against individuals and companies that do not belong to the respective cultural environment. The difficulty, for example, of establishing an intellectual property right on cultural heritage follows not only from the contrast between individual subjective rights and collective subjective rights. It follows above all from the problem of determining the collective rights holders who are to benefit from ‘their’ cultural heritage. Who is a member of a certain culture? Is there a generational link or does it depend on the integration of the individual into his or her living environment? If the legal system does not want to fall back to abstruse considerations of ‘blood identity’, what remains is the assignment of such claims to territorial authorities or the state itself, whose task it is to protect cultural diversity on its territory. This is the path that the Indonesian legislature had taken in Art 38 Law No 28/2014 on copyright law.The misuse of cultural aspects carried into the application of law is also visible in another aspect: In another paper I have pointed out the problem that the concept of traditional customary law in Indonesian law and the position of Adat law in the hierarchy of norms seems in need of clarification. Shidarta notes that there is no sufficient clarity about the relationship between Adat law and state law and thus no consistent system of Indonesian law as a whole. Accordingly, the maturation of an independent Indonesian legal system suffers to this day from the internal conflict with the colonial legacy of existing state law based on Dutch civil law and the lack of a consistent overarching pluralistic concept of law. This is seen by Shidarta as a major reason why the systematic positions of customary law, Islamic law and western law within national law are not clearly defined and why a clear hierarchical determination of the various sources of law in relation to national law is lacking. The doubts about the systematic location and certainly also the failure to establish the principles of traditional customary law as original Indonesian law after the attainment of independence instead of the sources of law inherited from the colonial period are probably due - in addition to the idea of the state founders of an Indonesian unitary state (‘eenheidstaat’) - above all to the disagreement about the concept of customary law, which is formally understood in the sense of a binding source of law defined during the colonial period, or as post-colonial Adat law in the sense of traditional customary rights of various Indonesian ethnic groups either with a binding character or as norms of social order based on voluntariness. In this respect, too, different definitions of the term can be found in the literature:There is thus generally a more philosophical recognition of the importance of traditional customary law in the sense that customary law reflects the actual sense of law of the people and the Indonesian people as a nation. The latter statement seems problematic to me because the statement only applies with regard to the significance of customary law as a source of law, but not to the content of the individual customary laws of the various ethnic groups, in which different legal customs apply in each case. It therefore seems questionable to me whether Adat law can be understood in the sense of an alternative to Indonesian state law. In my opinion, Adat as a source of concrete legal norms has a supplementary development perspective in the communal area. Here it can certainly have an influence on economic life in the regions if it is applied consistently and transparently, and its importance would grow especially if the autonomy of municipal territorial units were strengthened, and a strong federalism were developed. However, a scientific inventory of norms and principles of local customary law is then required, and a clear formulation of such norms is needed, because it must be ruled out that the invocation of undefined, non-transparent or arbitrarily formulated Adat rules unduly restricts the freedom of market actors and are used as protectionist instruments in the provinces.In this sense, I believe that the postulate that Indonesian law must simply recognise Adat law as it has grown and as it is applied alive within the Indonesian local societies falls short, because the compatibility of social rules based on voluntariness and constantly changing with the overall legal system based on the rule of law is at least debatable. In other words: either one renounces the legal certainty and predictability of legal norms in the area of traditional customary law. This could then constitute a breach of the constitutionally enshrined principle of the Rule of Law. Or one formulates clear norms based on traditional legal principles, which have the character of binding legal norms and applies them in the sense of subsidiarity in the local environment with priority over central state law in certain predefined aspects. Then the rules of the hierarchy of norms must be correspondingly clear. However, the question of the hierarchy of norms then no longer presents itself as a problem of the nature of Adat or customary law because the latter would have lost its character as actual customary law. The advocates of a strong recognition of Adat by state law will, however, reject this path because they see the advantage of traditional customary law over state law precisely in its flexibility and ability to change. This flexibility would no longer be readily available through an integration of traditional principles into a local classical law in the sense of imperative norms.A clear hierarchy of norms defined by constitutional law seems indispensable, because such local customary law cannot displace state law without further ado, but only if the principle of subsidiarity and the better regulation of local circumstances by local law indicates otherwise. This would also be in line with the philosophical assessment of local customary law as the law that best captures the living conditions of the people in its cultural area of application. The importance of the principle of subsidiarity should generally be given more attention in the discussion on legal pluralism in Indonesia. This can not only ensure greater recognition of traditional customary law, but also enable the transparency necessary for the predictability of the law.Insofar as Adat is to be understood as the source of ‘abstract normative’ aspects, as certain common Indonesian legal values and principles in the sense of a ‘pan-Indonesian’ legal order and, as such, is to find its way into an independent state Indonesian civil law, legal scholarship in Indonesia will also have to identify and clearly define these principles. In doing so, it will be necessary to determine which principles of traditional customary law in the various regions of the archipelago are suitable as overarching legal principles, so that they can possibly have an identity-forming effect in a national private law. This difficult process might lead to reform of the Indonesian Civil Law which meets the special requirements of a socially and culturally integrated legal system.Indonesia as a state with a unified internal market needs a cross-cultural private law and commercial law. Consideration of the interests of local communities and traditions is of importance in a multicultural state. The Indonesian constitution therefore emphasises the specifics of traditional rights and thus guarantees Adat its own status in the legal system. However, there seems to be a lack of a clear hierarchy of norms in the legal system and a clear definition of the nature of Adat. A hint of a certain hierarchy between Adat and state law is indeed found in agricultural law (Art. 5 Law No. 5/1960 on the Basic Regulations of Agrarian Principles) and in forestry law (Law No. 41/1999 on Forestry). Adat is recognised here but must harmonise with state law. It is therefore likely to be in a relationship of subsidiarity to state law. The fundamental assertion of the primacy of state law over other co-existing legal systems is also in line with the view of Indonesian legal scholars such as Sunaryati Hartono. Referring to Griffiths’ formulation of “weak legal pluralism”, where co-existing legal systems are subordinated to a dominant formalistic national law, it can be stated that the Indonesian legal system follows this model.In my opinion, the integration of traditional customary law into the legal system should not be done as a mere tolerance of state law towards deviating regulations of facts in certain regions. From my perspective as a foreign observer, this seems to lead to significant problems for the development of the Indonesian economy and for investment. In particular, this seems to me to be the case for Bali. Local Wisdom can be incorporated into the contractual relations of the parties within the framework of private autonomous arrangements. A ‘creative’ qualification of protectionist measures against outside market actors or the justification of the failure to sanction breaches of contract or violations of law against outsiders as ‘Adat’ or ‘protection of local traditions’ should be consistently avoided.Incidentally, it seems to me that in contract law there is no real opposition between state law and traditional customary law. Either the parties trust each other, in which case state law does not prevent an agreement based on good faith. Or they do not, in which case only state contract law can lead to proper solutions. The same applies to traditional dispute resolution methods, to which the parties to the conflict can easily submit. In contrast, the integration of customary law as independent Indonesian legal principles or as legal norms at the local or municipal level into Indonesian law would require considerable academic effort. For this, the principles concerned would have to be clearly identified, systematised, and formulated to be able to substantiate a claim to validity beyond the respective local communities. The mere reference to historically evolved convictions of local communities is too vague. The term ‘local wisdom’ seems to me to be problematic in this sense to accurately describe the question of the collision of traditional customs and expectations of outside market actors, especially since it is already conceptually positively evaluative. Finally, it should not be forgotten, that the continental European codifications are culturally neutral and in big parts based on the Roman law. Roman law itself was not developed under the cultural framework of northern and middle European regions, however it served well as source for the modern European codifications. These codifications are working fine until these days in different nations without obvious incompatibilities with local traditions. The amount of a ‘Volksgeist’ after the idea of Friedrich Carl von Savigny within the Private Law does not play a big role in the contemporary discussion as law should be seen in a pragmatic way as a viable tool to organize the modern society. Indonesia is an important economically emerging nation. As such it might be a good idea to keep an internationally compatible private law, which might be carefully adapted to certain peculiarities of the Indonesian society. The use of general clauses as entrance doors for local legal convictions seems to be a good way for that and a clearly defined legal hierarchy with a constitutionally based legal subsidiarity principle seems important. In contrast, the foundation of modern law on nationalistic, local, or indigenous traditional customs should only be done with extreme caution, if at all. The contemporary discussion on the role of Adat in Indonesian law shows the great difficulty of determining viable legal rules that can enter a future reformed Indonesian private law as ‘originally Indonesian’. The criticism against Von Savigny’s ‘Volksgeist’ idea also applies here: Defining who the ‘people’ are and what constitutes their common identity is already hardly rationally possible in a non-multi-ethnic state, even more in a multi-ethnic state. National identity-forming circumstances are hardly suitable as common principles for pluralistic societies.

China is the most populous nation, the largest developing country with relatively high levels of poverty, the fastest-growing economy, and one of the world’s most polluted countries. Bearing this in mind, the Chinese central leadership is keen to address environmental and developmental concerns concomitantly and strike a balance between environmental protection and economic development. One way that this can be achieved, in the author’s view, is through the development of green technology.
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\nInstead of repeating what has been said in the existing literature, this thesis attempts to approach the issue of green technology from a new perspective of law and institutional design, and seeks to stimulate green technological change through the development of a legal system that engages environmental law and patent law in a concerted effort to incentivize the innovation and dissemination of green technology to the greatest extent. This thesis argues that by improving a synergy between the Chinese environmental law and patent law, especially by using the Chinese patent law as an environmental instrument, the innovation and diffusion of green technology can be better promoted. This in turn would contribute to China’s environmental improvement without necessarily impeding economic growth or technological progress.
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\nSpecifically, this thesis puts forward three main ways in which patent law can be used as an environmental tool, i.e., the creation of a rationale governing both environmental law and patent law in a nation’s legal regime for including environmental goals in patent law, environmental law’s adoption of patent system as an environmental regulatory tool, and the “greening” of patent law. This so-called“three-step approach”, in conjunction with the proposed specific provisions, measures or mechanisms developed under each of the three approaches, will constitute a theoretically effective legal framework and can be used as criteria for assessing the Chinese law’s effectiveness in synergizing environmental law with patent law and using patent law as an environmental instrument. A total of 28 aspects and sub-aspects of the Chinese law have been examined against the proposed criteria, with a total of 31 points awarded. A notable gap exists between the Chinese law and the proposed theoretically effective law because had all the aspects and sub-aspects of the Chinese law fully met the criteria, the total score would have been 84 points other than 31 points. It is worth noting that such an assessment of the Chinese law is not conducted alone, but on the basis of a comparison with the counterparts of the US and European laws, which makes the evaluation of the Chinese law more meaningful and accurate and helps to identify lessons from the experience of the US and EU. Based on such vertical and horizontal comparisons, this thesis raises specific proposals for China’s legislative reform, with a view to synergizing the Chinese environmental law with patent law and using the Chinese patent law as an environmental instrument.

Autoritas, non Veritas facit Legem. – T homas H obbes , L iviathan : S ive de M ateria , F orma , et P oestate C ivitatis E cclesiasticae et C ivilis III (1841) Introduction The principles of legality have been recognized in some form or another in all the world's criminal justice systems. This recognition ranges from the rigid positivistic approach of the Germanic and other Roman-Civilist legal systems to the more flexible common law system. The latter recognizes the principle of analogy in statutory interpretation, while the former systems reject analogy as a violation of the principles of legality. Some legal systems, like the Shari'a (Islamic legal system), apply the principles to certain crimes ( hudud crimes) as rigidly as the positivistic legal systems, but recognize the application of judicially made law for other crimes, like qisas and ta'azir crimes. The ex post facto clause of the U.S. Constitution prohibits the legislative branches of the federal and state governments from passing retroactive legislation. The principles of legality are not deemed by many systems to apply to procedural and evidentiary norms and standards, and there is diversity in legal systems as to judicial interpretation by analogy, and how far it can go. Due to the history and evolution of ICL, the principles of legality as they emerged from the world's major legal systems have always been treated with a degree of relativism.

The article examines the main aspects of the interaction of legal and political systems to create conditions for the stable development of the state, strengthening and maintenance of law and order. The effectiveness of the political system is ensured by the coherence of the actions of all components of the system, which, in turn, is achieved with the help of legal means. The legal system, embodying the normative basis, affects social relations and ensures their stability; and the political system, in turn, is connected with a special sphere of people’s activity - politics, which reflects the sphere of relations between classes, social groups, collectives, and citizens regarding state power. The formation of the modern legal system of Ukraine in accordance with international, in particular with European legal standards is a complex and multifunctional process, and therefore requires a deep scientific analysis of the legal reality and the development of conceptual foundations of its functioning and development. The current period of development of the Ukrainian legal system (which in its genesis and legal features is similar to the legal system of the Romano-Germanic type) is connected both with the improvement of the main features of continental law and with the formation of effective ways of bringing it closer to European international legal systems. In the current situation, the need to create a single legal space, within which it would be possible to quickly achieve effective cooperation between states that have different economic and legal systems, is becoming urgent. Having considered the existing legal systems, we can already conclude that Ukraine undoubtedly belongs to the family of the continental legal system. However, in our country, private law, for example, is extremely underdeveloped. For a long time, the main attention was paid mainly to the development of public law. It is likely that the great difficulties of implementing a socially oriented market economy and entrepreneurship in our country are connected with this. The low legal awareness of the population of Ukraine in the field of private law also stands in the way of the integration of our state into the world economic space.

Compared to Hindu and African law, the study of Chinese law faces a much less hostile research environment. While China's size, volatility and importance remain a challenge, the codification of imperial Chinese laws impressed most Western observers and left little room for doubt that the ancient Chinese had law. This also provided sufficient reason for comparative lawyers to include Chinese law among the legal families, though its precise place in global taxonomies remains debated. Since the existence of law in China has never been challenged, the present chapter only briefly considers different scholarly representations. It focuses on key aspects of Chinese laws, highlighting the plurality of legal systems under the collective term ‘Chinese law’. The core element is visibly the imperial Chinese system of statutory laws, a manifestation of legal positivism which extended, with numerous modifications, from 221 BC until 1911. Equally important in social reality, however, are various uncodified systems of Chinese cultural norms and values, often subsumed (and thus not clearly enough distinguished as natural law and custom) under the label of morality or ‘Confucian ethics’. These Chinese postulates (Chiba, 1989: 180) are of immense relevance for understanding the social reality of ancient and modern Chinese law. They point to inherent plurality-consciousness also within Chinese law. At first sight, the discourse on Chinese law appears to give far less importance to ‘custom’ than to the Codes or the philosophies of Confucian ethics, suggesting that this legal system is incomparably unique in its reliance on philosophy and state-made codes.

Effective implementation and enforcement of laws and regulations will to a large extent determine how successful the Belt and Road Initiative (BRI) turns out to be. Mutual respect and trust between trading partners is crucial. This chapter explores how the various legal and regulatory systems can be developed to encourage and enhance trustworthy behavior. The countries involved in Belt and Road (BR) are very varied in their legal and regulatory approaches, ranging from those which rely heavily on religious teachings to those with common law or civil law traditions. Each type of law takes a different approach to matters which are relevant to trustworthiness. Achieving a sustainable legal and regulatory framework for BR requires, as a matter of urgency, that attention is given to how the various legal systems interact. BR follows a long tradition whereby the Silk Road facilitated interchange between the great civilisations of China, Mesopotamia, Persia, India and Rome, and later Europe. Achieving this will require that trust between nations is established, not only at the highest levels of government, but also between individuals, companies and communities. Lack of trustworthy behaviour can adversely affect relations between governments (for example, between Greece and Europe), between companies (leading to numerous defaults and corporate failures, including those which accompanied the Global Financial Crisis (GFC)) and between individuals. In what follows, we explore the various methods whereby shared values (or at least a set of shared beliefs) can be developed, in order to ensure that the behaviour of those in authority is trustworthy. This varies from country to country, from sector to sector, and under different legal traditions. In doing this we draw on work carried out at Oxford and elsewhere on how trustworthy behaviour can be encouraged. We argue that it is the role of the Law, including in bilateral and multilateral trading arrangements, to ensure that relationships between market players and stakeholders are as fair and transparent as possible, through mechanisms that influence norms and hold those who behave in untrustworthy ways to account. Chinese law and practice is contrasted with those in other jurisdiction in order to explore the relative merits of each. Sustainability of the BR legal system requires consensus and long-term sustainable relationships.

How do we Know When an Enterprise Exists? Unanswerable Questions and Legal Polycentricity in China

Chinese officials accused of forcing abortions in Shandong

Journal Article The rule of law in China and the prosecution of Li Zhuang Get access Vincent R. Johnson, Vincent R. Johnson * * Vincent R Johnson, BA, St. Vincent College; JD, University of Notre Dame; LLM, Yale University, Fulbright Senior Scholar, Renmin University, 1998; Professor of Law and Director of the Institute on Chinese Law and Business, St. Mary's University, San Antonio, TX. Search for other works by this author on: Oxford Academic Google Scholar Stephen C. Loomis Stephen C. Loomis Search for other works by this author on: Oxford Academic Google Scholar The Chinese Journal of Comparative Law, Volume 1, Issue 1, March 2013, Pages 66–83, https://doi.org/10.1093/cjcl/cxt003 Published: 20 February 2013

Not Argued from But Prayed to. Who's Afraid of Legal Principles?

The emergence of crypto assets, a novel category of assets, has posed significant challenges to property law across various legal systems. The integration of these intangible assets into property law frameworks proves to be complicated for many civil law jurisdictions, which tend to adhere to dogmatic approaches. In contrast, Anglo-American common law and Chinese civil law systems, despite their divergent origins, have exhibited legally pragmatic responses to intangible property, including crypto assets. By examining the development of their property laws concerning property conceptualization and the treatment of emerging intangible assets, this article explores how the historical foundations of Anglo-American common law in feudal tradition and Chinese civil law in communist ideologies have fostered adaptable and flexible notions of property. This adaptability is argued to be a strength within both the Anglo-American common law and Chinese civil law systems, enabling them to accommodate innovative intangible assets more easily compared to their civilian counterparts.

해상운송은 국제운송에서 여전히 가장 중요한 운송수단이며, 운송의 성질상 독자성이 강한 법체계를형성하여 왔다. 국제물품운송에 관한 규범 체계는 헤이그규칙, 헤이그-비스비규칙, 함부르크규칙, 로테르담규칙 등의 국제규범을 토대로 각국의 사정에 따라 하나의 규칙을 국내법에 수용하여 규정하는 방식을 취하고 있다. 이러한 방식의 수용은 각국의 해상운송에 관한 규범 체계가 다원화되는 현상으로이어져 국제적으로 여러 가지 불편한 문제를 발생시키고 있다. 따라서 본 연구는 해상운송계약에 관한 국제규범으로서 최근에 UNCITRAL에서 제정한 로테르담규칙과 중국해상법의 규정을 각각 살펴보고, 주요 조항에 대한 비교분석을 통해 그 차이점을 밝히고 있다. 이를 통해 향후 해상운송계약에 관한 국제통일규범인 로테르담규칙의 발효 가능성과 중국의 해상운송에 관한 국제규범의 수용 가능성과 그 영향에 대해 살펴보고 있다. 본 연구의 결과, 헤이그-비스비규칙이 제정되고 반세기가 지나고 있는데도 불구하고 운송환경의 변화에 따라 제정된 함부르크규칙 및 로테르담규칙의 발효는 요원한 상태에 있어서 국제통일규범이 절실한 해상운송분야에서 대국으로 성장한 중국의 해상법을 살펴보았다. 중국해상법은 여전히 헤이그-비스비규칙을 근거로 하고 있는 가운데, 시대적 상황을 반영하여 화주에게 불리한 부분을 일부 개정하고있다. 따라서 최근에 제정한 로테르담규칙의 수용을 통한 국제통일규범의 발효는 아직 상당한 시간이필요할 것으로 보인다.In international transport, maritime transport is the most important means of transport. In particular, the nature of its transport has created a strong legal system. The normative system of international commodity transport is based on the Hague rules, the Hague-Visby rules, the Hamburg rules and the Rotterdam rules, etc. As such, the diversification of the normative system of maritime transport in each country has caused many inconvenient issues internationally. Therefore, this study examines the Rotterdam Rules enacted by UNCITRAL as international rules of maritime carriage of goods by sea and Chinese Maritime Law, and reveals the difference by comparing and analyzing major clauses such as the scope of application, liability of the carrier, limits and period of liability and electronic transport records. The purpose of this paper is to examine the possibility of Rotterdam Rule, the international standard of unification of maritime transport contracts in the future, and the possibility and acceptability of international rules on maritime transport in China.

This chapter focuses on Shakespeare's Henry IV, which highlights one particular feature of a properly functioning legal system: impartiality, or the application of law equally to everyone within its jurisdiction. It purports that an advantage of a literary text over a legal one is that literary texts have no need to resolve the problems raised, but merely raise them in interesting and provocative ways. Literary texts have a tendency not to suggest some form of resolution or accommodation of the difficulties they note. Shakespeare, therefore, seemed consistently unable to imagine a reasonably attractive and well-functioning legal system. In every moment that he begins to imagine such a system, he immediately raises issues that complicate, undermine, or call into question the possibility and even desirability of it. This consistent act of Shakespeare seems to suggest a certain sense of discomfort he had whenever he thought hard about legal principles or legal systems.

The core of the study is the latest changes in some legal systems in the field of surrogate motherhood, as well as consequences and problems arising from this in global perspective. The authors indicate significant differences in the admissibility and content of surrogate motherhood and different trends in individual countries (non-recognizing, broadening, limiting, or prohibiting different legal solutions). As a consequence, they also signal the issue of recognizing effects of foreign procedures and registration of civil statuses or refusal of recognition, as well as problematic postulates to create common global regulation at the international level. The introduction of surrogate motherhood procedures in some states (including legal fictions of the child’s origin from the ordering person) may raise legal problems and dilemmas in other coutries, especially in situations of providing the child to personal constellations, in which the child cannot be conceived in genere (e. g. a single man or a homosexual couple). Some discussed legal solutions can be evaluated as implementing a “demand to obtain a child”, which is considered legitimate and binding by the state legal system. The problems from the foreign perspective concern not only the assessment of legal systems that provide for the above solutions, but also effective functioning of different national fundamental legal principles in related situations (in the past or present) with several legal systems (e. g. with a country’s citizens as well as permanent and temporary residents who had previously been abroad and took action on the basis of foreign law). Fundamental doubts may arise abroad as to the functioning of the universal principle of the prohibition of trafficking in human beings, the legal principles of adoption and rules concerning the child’s identity, as well as understanding by the states-parties of the treaties of the principle of the welfare and best interest of the child and the dignity of women (often coming from poor societies). Foreign concerns may also include the future functioning of the adoption system, because the interest in adopting orphans can be significantly less than the competitive ability to order a child via contract (including shaping its future physical characteristics).

римская цивилизация по праву являлась одной из величайших колыбелей многих юридических течений, актуальность которых не изменилась с течением веков. Многие вопросы, решенные древнеримскими классиками правотворчества, являются не только базой для совершенствования законодательства разных по своей форме государств, но во многих случаях могут быть реципированы без каких-либо изменений. Влияние римского права на современные правовые системы огромно: несколько правовых систем мира (включая систему гражданского права Европы) в значительной степени, прямо или косвенно, сформировались под влиянием концепций римского права. Римское право образует базовую основу гражданского права, наиболее широко используемой сегодня правовой системы, и эти термины иногда используются как синонимы. Историческое значение римского права отражается в продолжающемся использовании латинской юридической терминологии во многих правовых системах, находящихся под его влиянием. Одной из основных причин, почему классическое право имеет такую значимость в современном обществе, является его влияние на международное право. Многие принципы и нормы классического права были заимствованы международными организациями и вошли в международные договоры и конвенции. Например, принципы права, такие как "pacta sunt servanda" (договоры должны быть исполнены), "volenti non fit iniuria" (согласившемуся не причиняется вреда) и "ius cogens" (императивное право), широко используются в международных отношениях. В данной статье рассматриваются вопросы совершенствования нормативной законодательной базы с помощью принципов классического (римского) права. roman civilization was rightfully one of the greatest cradles of many legal trends, the relevance of which has not changed over the centuries. Many issues resolved by the ancient Roman classics of lawmaking are not only the basis for improving the legislation of states of different forms, but in many cases can be adopted without any changes. The influence of Roman law on modern legal systems is enormous: several legal systems of the world (including the civil law system of Europe) were largely shaped, directly or indirectly, by Roman legal concepts. Roman law forms the basic basis of civil law, the most widely used legal system today, and the terms are sometimes used interchangeably. The historical importance of Roman law is reflected in the continued use of Latin legal terminology in many legal systems influenced by it. One of the main reasons why classical law is so important in modern society is its influence on international law. Many principles and norms of classical law were borrowed by international organizations and included in international treaties and conventions. For example, legal principles such as "pacta sunt servanda" (contracts must be performed), "volenti non fit iniuria" (no harm shall come to the consenter) and "ius cogens" (mandatory law) are widely used in international relations. This article discusses the issues of improving the regulatory legislative framework using the principles of classical (Roman) law.