Hong Kong Law Journal 1971 - 2024

In this Comment, I shall explore the interpretive disagreement between the majority and the minority judges in the Court of Final Appeal decision of T v Commissioner of Police. In essence, the majority judges are more committed textualists, while the dissenting judges are “purposivists” who would adjust the text of the Places of Public Entertainment Ordinance (Cap 172) (PPEO), even in the absence of an ambiguity, to capture what the legislature would have intended had it expressly confronted the apparent mismatch between the statutory text and its purpose. Furthermore, I would also argue that the legislative history of the PPEO is actually inconclusive on the issue of whether the said law was intended to apply to a public street to which the general public has an unrestricted right of access under general law. Finally, I conclude by arguing that if Lord Neuberger, who was in the majority, is right that the PPEO drafters did not intend the said law to apply to public roads, but only because they considered that public entertainment on public roads would never be permissible under any circumstance, the dissent’s attempt to subject such public entertainments to the regulatory scope of the PPEO may actually be more consistent with the legislative position that the lawmakers would have preferred, as opposed to the majority’s stance of exempting all such entertainments now from any licensing regime.

This article examines the reform of the common law doctrine of privity through the recent passing of the Contracts (Rights of Third Parties) Ordinance (Cap 623). It surveys the background to reform and then takes a closer look at key aspects of the new legislation, as well as considering notable differences with the equivalent UK legislation and exploring the potential problem of conferring a burden on a third party.

This article has three main objectives. The first is to promote an overt, objectively rigorous and principled approach to both the discipline and the potential of rational relevance as the cornerstone of admissibility, use and weight of evidence decisions in common law criminal trials. The second is to demonstrate the inadequacy in principle and practice of the traditional common law admissibility proxy for probative value of a division between relevance to issue and relevance to credit. Both objectives are approached through an in-depth examination of the irrational disparities in treatment of decisions to lie by prosecution/law enforcement personnel (officers), sexual offence complainants and defendants that adherence to the issue/ credit distinction has at least facilitated throughout the common law world. The third objective is to propose and illustrate the probable implications of an overt, objective and principled approach to relevance with the alternative starting point of a division between decisions to utter current offence lies and non-current offence lies.

What is the effect of omission to register an instrument affecting land at the Land Registry? Astonishingly, this question has not been conclusively answered in the 170-year existence of Hong Kong’s system of deeds registration. The Land Registration Ordinance (Cap 128) bestows priority between registered documents according to their respective dates of registration. The ordinance is said to be concerned with priority rather than validity of such documents, validity being a matter for the general law. However, there is one provision of the ordinance which on its face is concerned with validity. This is s 3(2) which states that a document which is not registered shall be void against a subsequent bona fide purchaser for valuable consideration. Yet courts seem reluctant to give this provision its literal meaning. This article explores prior treatment of the question by judges and writers and considers two recent decisions which touch upon the question. In one, the Court of First Instance found that the subsection gave only priority to a registered instrument over an unregistered instrument and did not render the latter void. In the other, dicta of the Court of Final Appeal appear to indicate a contrary view. The article considers the reasoning in those decisions, and suggests that the first decision is not correct and proposes the true position derived from authority.

Transgender persons in Hong Kong are currently required, as a matter of administrative practice, to have undergone full gender reassignment surgery before their identified genders are reflected on their identity card, and are thereby given de facto – but not legal – recognition. Despite the defeat of recent legislative attempts, by way of the Marriage (Amendment) Bill 2014, to accord statutory force and effect to the compulsory surgery requirement, the requirement’s continuing applicability in practice has nevertheless been confirmed and insisted by the Government. This article reflects upon the international and comparative law and jurisprudence in this area, from which, it is argued, a consensus has decidedly emerged towards the erosion of the compulsory requirement of full gender reassignment surgery. On this account, the author concludes that any official countenance of a full surgery requirement is undesirable, to the point of being unacceptable in principle, and proposes therefore a more flexible model of gender recognition which does not require compulsory surgery.

As a party to the United Nations Convention on the Rights of the Child, Hong Kong has a duty to ensure that youth suspects are entitled to a number of due process rights when they are deprived of their liberty. This article focuses on two specific rights, namely, the right to the presence of a parent or guardian and the right to legal assistance, and evaluates whether or not Hong Kong’s practices comply with the United Nations Convention on the Rights of the Child. I argue that there are several limitations with the existing system and improvements are therefore necessary. With references to Canada, England and Wales, I put forward a number of recommendations and it is hoped that the government, the legislators, the police force and the legal profession will seriously consider them. Otherwise, the interests of the youth suspects will continue to be at risk.

Scholarly exploration of rule conformity in the global arena is a fast-growing and increasingly sophisticated enterprise which lies at the epicentre of positive international legal theory, a relatively young but burgeoning field of scientific inquiry, with a salient explanatory dimension and a distinct multidisciplinary, perhaps even interdisciplinary, orientation. Notwithstanding the scope, diversity and progress observed in this analytical domain, it is not devoid of flaws and gaps. Periodically, research is produced that shifts the whole edifice to a markedly higher plateau. The book under review arguably falls into this category by virtue of making a number of significant contributions to knowledge, the most notable being the author’s genuine and largely successful effort to combine and integrate insights derived from seemingly competing, but in fact often complementary, schools of thought.

This paper begins by describing the two conflicting visions of democracy involved in the events surrounding the Taiwan Sunflower Movement (the Movement) and examines the justifications for the Movement from the perspective of democratic theory. We characterise the Movement as an instance of “confrontational contestation”. This theory stems from the belief that the Sunflower Movement events represented a unique type of democratic disobedience, and new understandings regarding disobedience have emerged from these circumstances. The second part of our paper analyses the cases for and against prosecuting Sunflower Movement members. Ultimately, we argue that prosecution would only prolong and enhance political conflict, whereas non-prosecution may serve as a measure of democratic compromise and as such would be more conducive to the pursuit of democratic peace.

This article uses the case of the Sunflower Movement (the Movement) to shed light on the dispute of constitutional authority between “constitutional liberals” and “constitutional populists”. It demonstrates and accounts for the lack of authority from both the state and the constitution during the Movement. Despite the complexities, the case of Taiwan is not unique among transitional democracies. Transitional democracies typically do not have the luxury to ignore one essential feature of authority: the authority of a political order must be sufficiently motivating in order to acquire free and enduring obedience from all citizens. New democracies have no choice and typically derive their constitutional authority from a transitional idea of popular sovereignty looking towards the future, instead of digging through the founding acts of the past. This forward-looking idea of popular sovereignty urged the Sunflower protesters to disobey the law and transform themselves into a legitimising force, in order to establish an inclusive and effective authority on track to a higher form of law-making.

This article uses images of policing produced in the context of Taiwan’s Sunflower Movement to explore the place of police in democracy. I distinguish five different ways the police–society relationship came to be represented over the course of this movement. I argue that these images of police were performative: they had real effects on the trajectory of the event. To understand these effects, I use a theoretical framework which links the rise of internet technologies to a shift in the cultural dimension of state formation. From this perspective, the driving force of Taiwan’s Sunflower Movement appears as a symbolic disjuncture between two contradictory ideals of democracy. On the one hand is a radical ideal, in which a constituent power is founded directly in the meaningful processes of public will formation. On the other hand is a liberal ideal, in which the relative autonomy of a constituted state is necessary to protect civil order against political chaos. The police are situated at a point of material contradiction between these radical and liberal imaginaries. To the degree that police powers are based on the rule of law, they are founded in the liberal ideal, which makes them vulnerable to the “imagefare” tactics of radical-democratic social movements.

This paper examines the dynamics of the “gender framing” process in the women’s Anti-Cross-Strait Service Trade Agreement (CSSTA) movement in Taiwan. The anti-CSSTA movement established a gender frame for its action against the CSSTA, including the diagnostic frame of dubbing CSSTA as “gender blind”, and the prognostic frame of demanding a Gender Impact Assessment (GIA) as a solution. By proposing a parallel gender frame, in addition to the major claims decided on by the core caucus of the Sunflower Movement, the women’s anti-CSSTA movement maintained its alliances with both feminist allies and the caucus. During this framing process, law played a significant role both as a resource and as a constraint. The developing proposals and practices under international trade and human rights provide rich resources for the gender frame. Nevertheless, Taiwan’s local legal framework limits the options available for possible solutions.

This article turns upside down the conventional wisdom of “learning effects”, which suggests that when less-developed countries trade with developed countries, more democratic countries and those with better rule of law, the less-developed countries will gradually democratise and adopt and improve their domestic rule of law. It explores whether closer economic integration with China, an undemocratic country with poor rule of law, would undermine democracy and the rule of law in Taiwan and Hong Kong. By examining the correlation between four fundamental freedoms (free movement of goods, free provision of services, free movement of capital and free movement of persons) and the World Bank Good Governance Indicators and the press freedom indexes of Freedom House and Reporters without Borders, this article finds, generally, that closer economic integration with China undermines press freedom in Taiwan and Hong Kong and that trade dependence on China for services is negatively related to Hong Kong’s performance in the Good Governance Indicators.

One of the major legal issues arising from the Sunflower Movement was the permissibility of “illegal” assemblies within and outside the government compounds. Such unauthorised sit-ins or parades are quite typical in the context of civil and political protests, and have appeared in global citizen movements for causes ranging from political reform to social justice. Usually these activities – albeit non-violent – were found against the law. Yet, staged for the expression of grave discontent with governmental policies, such activities should be within the protected scope of free speech. At the same time, however, no right is absolute. National constitutions and international human rights permit a wide range of restrictions to free assembly for the maintenance of public order. This article explores if, and on what grounds, these "illegal" protests should be legally permitted from the perspective of national constitutions and international human rights.

In March 2014, Taiwanese students occupied Taiwan’s Congress for several weeks over the legislature’s fast-track approval of a service trade agreement with China. Recently, there were calls and actions to occupy the Central in Hong Kong over the controversial rules of choosing the Chief Executive of the special region. Some have hailed mass movement or civil disobedience, inter alia, as the triumph of civil society, while some lamented it as the death of mature democracies and a threat to the rule of law and liberal constitutionalism. This essay analyses the Sunflower Movement from the prospects of representative democracy and the changing landscape of constitutionalism, arguing that the Sunflower Movement has demonstrated a model of marching towards civic constitutionalism, in that civil groups compete with their representative agents and the courts in shaping and defining the constitutional order.

Legal pluralism and institutionalism are important theoretical underpinnings for the discourses of judicial recognition under dual legal systems that coexist within one sovereign nation such as the case of China and Hong Kong. Institutionalism provides that only formal institutions (eg, constitutions, laws and treaties), unlike informal ones (eg, private contracts, traditions and customs), can facilitate judicial recognition and enforcements for insolvency creditor rights protection. Legal pluralism, however, provides for an alternative to circumventing political sovereignty issues typically associated with the making of treaties for mutual judicial recognition purposes. Under the Chinese politico-legal system, Hong Kong is a Special Administrative Region which is akin to a province; as such, Hong Kong is not qualified to sign a bilateral treaty with China. This article expounds and analyses why instituting and implementing a special arrangement (an alternative to a treaty) can help optimise the mutual enforcement of Hong Kong–China cross-border insolvency judgments and orders.

Compared to the relatively comprehensive and broad jurisdictional bases granting competence to Chinese courts, Chinese statutes are almost silent on rules concerning declining jurisdiction. In the absence of clear legislative provisions, Chinese judicial practice plays a pioneering role in improving Chinese law in this area. This article systematically examines Chinese law and practice in forum non conveniens. It shows that discretionary power to decline jurisdiction for “convenience” has already been accepted in judicial practice, regardless of the absence of legislative support. The judge-driven development has contributed greatly to this area of law, and Chinese courts, especially courts in economically developed areas, are no longer zealously competing with foreign courts in taking civil jurisdiction. They have paid more attention to procedural efficiency and justice, as well as international comity between countries. Further improvement and modernisation require more systematic legislation, more appropriately designed rules and guidance and better training and education for Chinese judges.

This article argues that the Listing Rules can be judicially enforced in Hong Kong. This is because the Listing Rules are “requirements” made pursuant to the Securities and Futures Ordinance (Cap 571) within the meaning of s 213(1)(a)(i)(B). The Securities and Futures Commission can therefore apply to the Court of First Instance for various orders to remedy a breach of the Listing Rules. This proposition is well supported by the express wording of the Ordinance and the case law (in particular, the Court of Final Appeal’s decision in SFC v Tiger Asia Management LLC; while the decision concerns market misconduct rather than breaches of the Listing Rules, it is argued that the reasoning can apply by analogy). On this analysis, listed companies in breach of the Listing Rules can be ordered to compensate the general investing public under s 213. In addition, this article also considers whether a breach of the Listing Rules triggers s 214 of the Securities and Futures Ordinance and s 724 of the Companies Ordinance (Cap 622) (ie, unfair prejudice petition by shareholders).

This case note considers the recent UK Supreme Court’s decision of Michael v Chief Constable of South Wales Police, which endorsed an unsympathetic, claimant-unfriendly approach to the issue of public authority liability in negligence. Specifically, Lord Toulson for the majority held that even in the context of the police, the general rule that pure omissions do not ground a common law duty of care in negligence was to apply. This case note will argue that this restrictive approach should be applied, if at all, with great caution in the Hong Kong courts, for it can be questioned as to whether the majority’s approach rests on a solid theoretical foundation.

The Rt Honourable Lord Walker of Gestingthorpe writes about his career at the bar and on the bench, and touches briefly upon his part in interesting developments in various areas of law, including tax avoidance, rectification of trustees’ negligent acts, parliamentary sovereignty in the context of European Union integration and rules of causation and limitation in tort law.

The author was the Chair of the United Nations Commission of Inquiry on Human Rights in North Korea (COI). He describes the steps that led to human rights in North Korea being placed exceptionally on the agenda of the UN Security Council, in December 2014. He outlines the historical context of the division of the Korean Peninsula and the unresolved conflict of the Korean War (1950–1953). He explains the background to the creation of the COI and the distinctive methodology that it adopted in providing its report to the UN. He details the report and the reactions to the report, including the responses of North Korea. Initially a strategy of denial and non-engagement, this changed to a measure of engagement and production of a “rosy” report in response to that of the COI. That report is described and criticised. Eventually, the COI report was considered by the General Assembly and referred to the Security Council. At this stage, North Korea reverted to non-engagement and attack. The article concludes with proposals for an action plan for lawyers and their associations in the Asia/Pacific region. Condemnation is not enough. Engagement is essential. But will North Korea respond?

This article explores the law on the requirement to apply promptly and without undue delay for leave to apply for judicial review. It considers the discretion of the court to effectively shorten and extend the standard three-month time period within which to apply for leave and the varied factors which the courts have considered may and may not constitute good reason to extend time. It will be seen that this important procedural area is one in which there are more considerations and complexities than might at first appear.

Although East Asian jurisdictions such as Taiwan have been adopting similar models of Anglo-American independent directors and audit committees in recent years, we can find that common issues are failure of internal controls, in general, and dysfunctional internal information-sharing mechanisms, in particular. To accommodate Taiwan’s reform trend towards furthering the adoption of independent directors and audit committees, this article offers a roadmap for conceptual solutions which are harmonic with each other as prerequisites to enable monitors of management to have the incentives and means to exercise their oversight. First, the board’s duty to monitor should be reiterated while being transplanted into corporate governance rules. Second, independent information channels should be established to enable internal governance information to flow to corporate monitors, thus facilitating their decision-making in oversight. Finally, external market forces should be channelled to safeguard internal corporate governance.

Following the English common law, successful claimants in personal injury and clinical negligence cases in Singapore and Hong Kong usually receive their compensations as a lump sum. The amount in respect of future expenses and loss of future earning is a result of discounting the future pecuniary values into a single present-day amount, considering inflation, the time value of money and the claimant’s mortality. Using actuarial tables based on projections of the mortality rate of the general population may be considered as an alternative method in converting the future loss of earnings and future expenses into a lump sum reflecting its present value. For this purpose, a set of actuarial tables are constructed in this article. Various options for determining the appropriate discount rate(s) are explored in the context of the statistical and economic data of Singapore and Hong Kong.

The right to health, as a socio-economic right, has long been recognised as a fundamental human right by a number of international and regional human rights instruments. This article undertakes a comparative study of the approaches taken by three nations to the realisation of the right to health at the domestic level. The three countries selected – South Africa, the United States and China – present a broad spectrum of domestic approaches in terms of the combination of two major considerations: the recognition of the right to health under their constitutions and the issue of the adjudication of socio-economic rights claims in domestic courts. This comparative study explores in what ways, and to what extent, the right to health can be realised in these three countries against the background of their respective healthcare reforms.

Since May 2008, relations between the People’s Republic of China and the Republic of China on Taiwan have improved significantly, but the two sides are now confronted with issues more difficult than before. One that has received more attention after the mass protests in Taiwan’s 2014 Sunflower Movement is human rights. Civic groups in Taiwan often criticise the two governments for sidelining human rights issues in their exchanges despite some continuing discussion on the rights of their own nationals detained by the other side. This article, focused on an under-analysed area in China–Taiwan relations, examines the extent to which human rights-related issues have been addressed as well as avoided in negotiations across the Taiwan Strait. It then discusses various proposals that have emerged in Taiwan in recent years calling for a greater emphasis on human rights in cross-strait relations. Notably, some of these proposals are intertwined with Taiwan’s politics and claims relating to its sovereignty. In conclusion, the article offers a policy recommendation for Taiwan to seek to meaningfully integrate human rights practice in cross-strait cooperation.

Rural land expropriation in China has been a focus of attention at home and abroad due to its enormous magnitude and astonishing pace. It is generally observed that the excessive and sometimes abusive expropriation is in large part attributed to an absence of external control over expropriation decision-making by various levels of Chinese government. The system suffers from a built-in defect where expropriation decisions are immune to judicial review, legislative scrutiny and public participation. Consequently, popular reform proposals centre on introducing judicial, legislative and procedural democratic scrutiny over individual expropriation decisions. None of these proposals has been adopted so far, for which the conventional explanation rests in “land finance”, a phrase describing the huge financial benefits accrued to the Chinese government through expropriating rural land. This article argues that the conventional wisdom is misguided and based on a misunderstanding of how rural land expropriation decisions are actually made in China. By examining the decision-making process, it demonstrates that under the present Chinese land use regulatory system, expropriation decisions are in effect reflecting and implementing spatial planning decisions that are neither completely non-justiciable nor free from legislative or democratic scrutiny. The failure of those prevalent reform proposals can be explained by their own deficiencies as much as by land finance. Alternative ways ought to be conceived to enhance external scrutiny over the state’s expropriation power in China.

China revised its Environmental Protection Law (EPL) in April 2014. This article analyses the main changes and challenges of the revised EPL in light of the five fundamental transitions currently taking place in China: (1) economic development powered primarily by industrialisation, (2) market-oriented economic reform, (3) social development powered primarily by urbanisation, (4) transition to an information society powered by digital information and communication technologies and (5) political reform to strengthen rule of law. This article assesses each transition and its implications for environmental protection and the revised EPL, as well as the intertwined nature of the five transitions and their overall implications. This article also discusses related legal developments after the revision of the EPL, including the revision of the Legislation Law in March 2015.

This article analyses China’s new Social Insurance Law and its treatment of foreigners in an international context. First discussed is the International Labour Organization (ILO) Convention 102 establishing standards and requirements for social security regimes. Second, other international obligations that may implicate additional social security obligations are dealt with, looking at free trade agreements and bilateral investment treaties. This is followed by an outline of the highlights of China’s new Social Security Law and its obligations placed on foreign nationals. Also, some of the domestic issues of implementation are also identified. The fourth section compares China’s new social security provisions with those of other developed countries, including Germany, South Korea, US, and Japan. Finally, based on the above, analysis of the compatibility of China’s new law is made under ILO Convention 102.

This article will set out the Singapore conflict of law rules on capacity to marry, and explain the principles behind those rules. The article will discuss how these conflict of law rules apply to the issue of the validity of marriages with a foreign element. This will be done by exploring the application of these rules to marriages solemnised outside of Singapore, both in marriages between two foreign domiciliaries, as well as in marriages where at least one of the parties is domiciled in Singapore. The article will also explore the limits of the application of these rules, by reference to foreign conceptions of marriage not presently known to Singapore law.

Learning from the failure of the previous attempt in 2012, Hong Kong’s Copyright (Amendment) Bill 2014 introduces parody exception to accommodate the public’s concerns about free speech, yet rejects the user-generated content (UGC) exception. By reference to practices and debates in other jurisdictions, the article offers a critical examination of Hong Kong’s bold yet conservative move in redefining copyright’s fair dealing doctrine. The article suggests that, caught between parody and UGC exceptions in the context of free speech, the 2014 Bill indicates an unfortunate confusion in applying the three-step test, which leads to its failure to achieve a balance between copyright holders and users in the era of the “participative web”. Extending the author’s exclusive derivative right to digital network environment with limited exception to works for parody purpose only, copyright protection, even after the 2014 Bill, continues to be the end rather than beginning of creation in the digital network environment. The article suggests that the success of the 2014 Bill depends on a careful revisiting of the fair dealing doctrine and accommodating new author-user dynamics in the digital age, rather than making unprincipled concessions to the rhetoric of free speech.

The main objective of this article is to act as a building block with respect to how best to establish an effective and viable system of cooperation to address non-traditional maritime security issues. After defining non-traditional maritime security, the article probes the reasons why international cooperation is necessary to protect these interests. The article then uses economics to analyse the obstacles to and incentives for international cooperation in different contexts and pinpoints which elements are indispensable for international cooperation in the area of non-traditional maritime security. To achieve meaningful and effective cooperation to address non-traditional maritime security issues, rules need to be established to ensure that the returns of cooperation exceed the costs and returns of non-cooperation. Moreover, in formulating and implementing the rules, different externalities and incentives must be differentiated, as they directly influence the costs. Additionally, people should consider the factors that affect the costs in reaching cooperation, such as excludability, measurability, and the size of the group. Accordingly, the transaction costs shall be minimised to facilitate cooperation.

The development of mediation in Hong Kong is no longer in its infancy. Four decades after incorporating the process into the labour dispute resolution system, it is applicable in other specific fields and considered suitable for most types of contentious cases. This article examines the implementation and institutionalisation of mediation into the administrative and judicial systems. In so doing, it gauges the effectiveness and identifies major weaknesses of each stage of development. It concludes by proposing to expand the scope of application to consumer disputes and elder care issues, adopt an opt-out rather than opt-in triggering mechanism when time is ripe and fine-tune certain provisions of the Mediation Ordinance so as to impose quality control over mediators, remove legal uncertainty concerning applicability of the Ordinance and clarify the extent of statutory protection of mediation confidentiality.

Electronic recording of custodial interrogations has emerged as a significant technique to identify instances of police mistreatment of suspects and use of coercion during questioning, to evaluate the voluntariness of purported confessions and to prevent improper conduct by police throughout the world. China’s top-down policy of recording appears comprehensive and laudably transparent, but is combined with a procedural system that gives police and prosecutors virtually all control over recording and the recordings themselves, and a legal culture in which the courts and police see themselves as close working partners of prosecutors. The article traces the three stages in which electronic recording of custodial interrogation has developed in China, from a limited pilot phase of prosecutorial policy beginning in 2005, through its heightened significance after the 2010 adoption of new rules of evidence and its 2012 inclusion in the revised Criminal Procedure Rules. The article shows how procedural aspects of the Chinese criminal justice system undermine the effectiveness of recording as a means of preventing police misconduct. The article then surveys recent Chinese scholarship, including empirical work, which criticises the implementation of recording. Finally, drawing on this scholarship and its suggestions for reform, as well as prior scholarship arguing that the presence of counsel is necessary to fully enforce many of the procedural rights of criminal defendants, the article shows how recording will not be effective as a means of deterring torture and police misconduct without the mandatory physical presence of an attorney during custodial interrogations.

With China’s miraculous economic development in recent decades, it is difficult for traditional theories, either communist or liberal ones, to accurately reflect the reality of reform in China. Concepts, such as “unwritten constitution” or “living constitution” have been studied in the context of China. However, these Western concepts are unable to provide a holistic view of China’s Constitution, especially after 1978. China’s Constitution, centered on the Communist Party and the State, has been largely transformed since then. This article goes beyond the liberal approach and argues that a dual constitution has sprouted up in China, within which the Party’s Constitution attempts to keep pace with that of the State. Specifically, the Party has been endeavouring to integrate itself into the State through political conventions and self-normalisation. The dual constitution is unique in the sense that it departs from the model of Mao Zedong, it deviates from that of the Soviet Union and it does not follow the formalistic approach of Western countries in defining the nature of a constitution. This suggests that the status quo of China’s regime and the direction of its constitutional reform can only be clarified by understanding the evolution of the dual constitution.

In China, the Copyright Law provides limited guidance on how to deal with the indirect liability of Internet Service Providers (ISPs). In the absence of clear legislation, Chinese courts have rendered conflicting interpretations of the knowledge requirement for imposing indirect liability under the Copyright Law. This article argues that the Copyright Law needs to be reformed to create a more balanced liability regime for copyright owners, ISPs and end users. Under this liability regime, an ISP would be held jointly liable when it has clear and sufficient knowledge about the occurrence of a specific copyright infringement, and has the ability to influence or control its users’ acts. Different from existing research on ISPs’ liability, this article is more attentive to court decisions. This article not only provides a detailed analysis of important cases dealing with ISPs’ liability, but also makes necessary references to other pertinent Chinese copyright cases heard by courts in the past decade.

Under the “one-country, two systems” policy, three definitions of terrorism exist in China, which makes the inter-regional assistance in preventing and combating terrorism more difficult in the absence of mutual legal assistance agreements. Therefore, a harmonised definition of terrorism is proposed. This article first introduces the background as to why a harmonised definition of terrorism is needed in China, and then compares the objective element (the prohibited conduct), the subjective element (the specific intent) and the exception to the three definitions of terrorism. This is followed by an analysis of the concrete proposal of a harmonised definition of terrorism in China, taking into account international definitions and national definitions. The proposed definition aims to strike a balance between the need to combat terrorism in the Chinese context and human rights protection.

This paper first briefly examines the context in which the Communist Party of China Decisions of 2013 (on Comprehensively Deepening Reform) and 2014 (on Comprehensively Moving Forward Ruling the Country according to Law) were launched. It then assesses the principles underlying the two Decisions. It is argued that although the Decisions are short of inspiration and expectations for political and constitutional reforms, these Decisions effectively re-launched legal reforms in China, and that measures contained therein are significant for improving the actual operation of the law and the legal system in China. It is however also argued that the strong emphasis on Party leadership, strict requirements on ideological control, tight control over political ideology, over the press and social media, religious groups and minority activists, political dissidents, public interest lawyers etc., and the irrational rejection of such notions as constitutionalism, checks and balances, and judicial independence will seriously set back China’s efforts towards a genuine rule of law.

Embryo custody disputes have occurred with a wide use of assisted reproductive technology in Chinese clinical practice. In a recent “orphaned embryos” case in China, the progenitors or would-be parents accidently died in a car accident, leaving four embryos cryopreserved in a hospital, and the parents of both progenitors claimed an exclusive right of custody and disposition of the frozen embryos. Although the case ended with the appellate court’s decision that the parents of both progenitors had a joint right of custody and disposition of the frozen embryos, the discussion about embryo custody disputes has just begun in China. Starting with this case, this article identifies and analyses four key legal issues arising in “orphaned embryos” custody disputes that have been overlooked by Chinese courts and discusses the legal solutions that Chinese law offers to solve them. The key legal issues include the legal status of the embryo, the agreement on the use and disposition of the embryo, the inheritability of the embryo and associated rights, and the independent right of the would-be grandparents over the embryo. The article concludes with suggestions for improving the law pertaining to the embryo in China.

By analysing data covering 162 court staff and 92 lawyers collected from eight grassroots courts of southwest China, this article aims to elaborate on the similarities and differences regarding the attitudes towards court mediation (CM) in different legal professional groups. This research finds that the level of convergence of the attitudes towards CM, in general, is very high between lawyers and court staff; but the difference still exists. This article also analyses the impact of different variables, including political background, ethnic identity and education level on the preference of CM.

Based on in-depth interviews and news materials, this article examines why there is a regulatory failure in China’s regulation of prepaid cards: the regulation has not served the public interest and the compliance level is low. In Western scholarship, several theories have been raised to explain regulatory failure. The most influential theory is regulatory capture, which means that regulatory agencies have been captured by the industries and serve primarily the industries’ benefit rather than the public interest. Compared to Western countries, China, as a non-democratic state, has a different regulatory regime and provides a new perspective for regulatory failure. This empirical research suggests that the main goal of prepaid card regulation has resulted from the highest-level officials’ pressure, rather than the industries’ capture. More importantly, the fact that the regulated prepaid card issuers do not comply with the regulations reflects a fatal defect inside China’s institutional arrangement. The financial system was designed to support the expansion of large state-owned enterprises. Prepaid card issuers, many of which are small private companies, often encounter difficulty getting financing from formal channels. Consequently, small card issuers have strong incentives to offer prepaid cards as an alternative financial resource to pre-receive money even at the risk of violating regulations.