Abstract
The idea of a consolidated, unique registry for all types of movable securities at the national level has recently surfaced in Chinese academia and policy-making circles. This would align ...China with the global trend towards the adoption of national, unique registries, a solution in conformity with the one proposed in the United Nations Commission on International Trade Law's Model Law on Secured Transactions, issued in 2016. In Europe, the consolidated national registry was embraced with varied degrees of enthusiasm. One country where it was successful is Romania, which adopted an original model: notice (simplified) registration, but with filings performed by a capillary system of operators and agents, under the supervision of the Ministry of Justice. This article introduces the Romanian national registry for movable securities in a functional comparative perspective, as a potential source of legal transplant for the Chinese legal market. Adaptation to local conditions requires that the place of operators and agents in the Romanian model be taken in China by the commercial banks.
This article analyzes the potential for legal transplant theory to strengthen the legal regimes that guarantee the right of access to environmental information in England and China. Guaranteed by the ...Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, the right has a substantial impact on how individuals can act as environmental stewards. However, despite the framework provided by the Aarhus Convention, there are shortcomings in how these states guarantee the right when compared with the obligations set by the provisions of the Convention. The article applies Alan Watson’s legal transplant theory to the environmental information regimes in England and China and considers the likelihood of each jurisdiction sourcing legal reforms from the other. It also seeks to identify common trends shared by each jurisdiction and the impact of the Aarhus Convention on such transplants.
This paper is a microcomparative study of the appeal for cassation on the meritsbased on Spanish and Chilean regulations. First, a genealogical analysis of theinstitution referred to is made in order ...to find a common root. Next, the main pointsregulated by Spanish and Chilean legislation in relation to the figure under study arementioned. On the basis of the above, it is examined whether it is pertinent totransplant the appeal in cassation interest in our legal system. It is concluded that itis not advisable to incorporate this figure, since neither the uniformity of thejurisprudence nor the nomofilaxis ensures a fair result, since this depends on thefairness of the rule. On the other hand, it affects the right of the litigant, since itprioritizes the creation of doctrine over the resolution of conflicts, which is the mainfunction of the jurisdiction.
The history of Western foreign policy in the Middle East has long assimilated Arab culture to sickness. Specifically, the biological
episteme
of “contamination” has shaped American foreign policy in ...the Gulf for decades. In so doing, the US Government continually borrowed references from the natural sciences to frame its foreign policy, leading some commentators to claim that biology supplanted philosophy and religion as the primary political category. The article analyses the semantics of
Iraqnophobic
metaphors, from the British experience of “nursing” Arabs at the close of the First World War to the recent “shock doctrine” of American therapists. First, the paper will concentrate its attention on the metaphors of disinfection and surgical resection. Second, it will address the metaphors of lustration, State-rearing and scientific recovery. Finally, it will explore Iraqis’ rebellion against their self-appointed tutors and doctors. Elaborating on the belligerents’ nursing and biomedical metaphors, the following pages address the life cycle of foreign “legal transplantation”, “antibody” resistance and “immunosuppressant” counterinsurgency in Iraq.
Decision-makers and legislatures around the world have recently placed copyright limitations and exceptions on their agenda. The main reference point is the American fair use defence. The policy ...debates focus on the advantages and disadvantages to the content industries, intermediaries and users. Unfortunately, too often missing from this discussion is the underlying theory of the exceptions. The risk is that a foreign concept will be detached from its origin and transplanted within a different legal setting, without sufficient attention as to how it should be absorbed within the recipient legal body. Theory can fulfil the crucial function of enabling the successful absorption of the transplant.
The article strives to redirect us back to the theoretical avenue. It classifies fair use justifications in two categories: those that are internal to copyright law and those external thereto. These justifications should be read against the background of the overall conception of copyright law. The case study at stake is Israeli copyright law. Israel was the first common law country to shift from a British-based, relatively narrow rule of fair dealing defence to the American, open standard of fair use, in its 2007 Copyright Act. However, courts began the shift more than a decade before the legislation, inserting American considerations into the British statutory structure. In so doing, courts relied on a partial, slightly outdated version of fair use, in what I call a judicial snapshot. The result was two decades of incoherent and unstable doctrine. Accordingly, this article warns against the perils of un-theorized transplant.
Jury trials, known as common-law institution centering on the UK and the USA, for the first time in Korean adjudicatory history, have been transplanted into Korean legal soils under cultural and ...political climate with legal roots of the “Civil Participation in Criminal Trial Act (CPCTA) of 2007” since 2008. This research examines legal and operational issues of jury trials through comparative analysis between the United States and South Korea. Several legal characteristics of 2013 revision bill of CPCTA, proposed by the Committee of Civil Participation in the Judiciary (CCPJ), are to be pointed out: so-called “civil participation” approach, de facto binding power of jury verdict and sentencing, and a stricter standard for a jury verdict or decision (3/4 majority). Statistical results from planting jury trials in both American and Korean legal system proved to be very similar. Meanwhile, a 2013 revision bill has to overcome several practical and legal obstacles, such as low usage of jury trials, the high rate of judicial dismissal of defendants’ petitions, and violation of Article 27 of the Korean Constitution. Under the current legislative scheme, judges in Korean courts need to operate jury trials in such a careful and respectful way that the revision may neglect neither a defendant’s right to jury trial nor jury’s verdict. Legal scholars, experts, and legislators with interests in implementing jury trials in Korea should research on ways to expand the system to other judicial procedures such as juvenile, civil, family, and administrative cases.
This article analyzes the heuristic concept of cultural translation proposed by the legal historian Thomas Duve as an alternative heuristic concept to legal history research. Cultural translation is ...understood in a broad sense, meaning not only the translation of a text into another language, but also the introduction and the necessary adaptation of thoughts to political, economic, and institutional contexts different to the originating one. With the paper divided into four parts, the first one deals with the new heuristic concepts explored in the approach to the legal history method by Thomas Duve, the second one differentiates the concepts of translation, transplant, and irritation, the third one deals with language translation in the strict sense, and the fourth one deals with cultural translation applied to legal history.
O presente artigo analisa o conceito heurístico de tradução cultural proposto pelo historiador do Direito Thomas Duve como um conceito heurístico alternativo em pesquisas de história do Direito. Tradução cultural é compreendida em sentido amplo, significando tanto a versão de um texto para outra língua, como a introdução e a necessária adaptação de pensamentos a contextos políticos, econômicos e institucionais distintos do originário. Com o trabalho dividido em quatro partes, a primeira trata de novos conceitos heurísticos utilizados na abordagem ao método da história jurídica por Thomas Duve, a segunda diferencia os conceitos de tradução, transplante e irritação, a terceira trata de tradução linguística stricto sensu e a quarta trata de tradução cultural aplicada à história do Direito.
How Consumer Law Travels Svetiev, Yane
Journal of consumer policy,
09/2013, Letnik:
36, Številka:
3
Journal Article
Recenzirano
This article synthesizes a number of the findings and themes emerging from the various case studies presented about the efficacy of the transplantation process of the EU consumer
acquis
in some of ...the EU accession and new Member States. Specifically, the article examines the process of incorporation through the lens of the domestication of the consumer rules either through the making of the local consumer laws or their subsequent enforcement in the case study jurisdictions. The overall conclusions from the case studies are that accession pressures are an important impetus for legal reform in consumer law, that there is limited tailoring of the rules in their transposition, and that there is slow take up by local actors in the resolution of consumer problems. The article suggests that getting it right in the law-making process in tailoring the rules to local needs or the extant local law may not be crucial for their subsequent efficacy, both because deliberations about the efficacy and fit of the rules may be irresolvable
ex ante
and because the relevant collocutors often do not exist at the time of original enactment of the consumer laws. Yet if the transplanted rules can be enlivened through local institutions as spaces for contestation of the rights and responsibilities that arise under consumer law, they can be domesticated or contextualized precisely through processes of ongoing contestation. From that perspective, it is institutional diversity in implementation in different jurisdictions, remedial hybridity and EU monitoring of the efficacy of local solutions that can help unblock suboptimal local outcomes.
This paper investigates how culture affects people’s attitudes towards directors’ duties in the People’s Republic of China by surveying a sample of Chinese business executives. If cultural practices ...lead people to behave differently from what the law prescribes, it is a serious regulatory oversight. Our results suggest that Chinese cultural values do matter when it comes to the perception of breaches of directors’ duties. Specifically, we find that respondents who identify with moral-discipline related traditional Chinese values are more lenient to the chairman breaching his director's duties, whereas respondents who subscribe to modern Chinese values are less receptive to the director failing to report the chairman’s contravention of his director’s duties. These results suggest that it is imperative for China’s law-makers to rethink their approach to regulating directors’ duties instead of the wholesale transplantation of laws from Western countries.
This paper examines the relationship between legal transplant and legal translation and their roles in cultural transfer. It classifies legal transplants into two kinds: legal imposition at the ...socio-political level and legal translation at the socio-linguistic level. Legal translation is usually the major conduit of legal transplant in the case of legal reform in the receiving country. Since transplantation involves the transfer of the conceptual thinking of the imported law, legal transplant often brings about a transfer of legal culture. Legal translation as a form of legal transplant always involves the transfer of the legal culture of the translated law at the socio-linguistic level. Legal translation in the context of Hong Kong serves as a case of foreignization, requiring both linguistic and conceptual adjustment of the translating language to accommodate the imported culture.
