Issue masthead
By Cui Jiale and Lin Meng
The Fall 2020 Issue of Tsinghua China Law Review comes amid an uplifting historic moment in the decades of a legislative marathon — the Chinese Civil Code will take effect at the beginning of the year 2021. We for the first time open the China Law Update column to law school students at home and abroad, calling for submission to stimulate discussion on this newly enacted legislation. The Civil Code not only marks a milestone in the progress of China’s legal system, but also has a profound influence on the way people interact with each other in the Chinese contemporary society.[read more...]
Preface | 13 Tsinghua China L. Rev. (2020)
A Statutory Business Judgment Rule for China’s Company Law: Theoretical and Comparative Considerations
By Kevin M. Hubacher
China’s Company Law for joint stock limited companies has all the prerequisites needed for an adoption of the business judgment rule: It not only separates ownership and management but also grants a certain amount of authority to the companies’ directors and supervisors, who are required to perform their duties in due care, under good faith and in a loyal manner. This paper, after having assessed the feasibility of a legal transplant of the business judgment rule, thus argues that China’s Company Law should recognize the value of authority granted to the board of directors and the board of supervisors and implement a due process based ex post review of business decisions. [read more...]
Article | 13 Tsinghua China L. Rev. 1 (2020)
AN OATH: Constitutional Dialogue Between Chinese Law and Common Law
By Priscilla M.F. Leung
Four legislators were disqualified for their breach of oath in failing to pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and failing to uphold the HKSAR Basic Law. An oath is a very serious public promise for public officers, Legislative Councilors, judicial officers as well as the Chief Executive and her team of civil servants as it is a promise of loyalty to one’s country. The breach of oath will not be acceptable both in common law and Chinese law. When an oath comes into the picture, it is believed Chinese law and common law will agree. [read more...]
Article | 13 Tsinghua China L. Rev. 59 (2020)
On the UN Convention Against Transnational Organized Crime and Convention Against Corruption in China: Domestic Efforts and International Cooperation
By Shang Haowen and Huang Gui
The aim of this article is to explore the challenges and approaches of acceptance and implementation of the UN Convention Against Transnational Organized Crime (UNTOC) and the UN Convention Against Corruption (UNCAC) in China and to examine the practice of international anticorruption cooperation. The challenges of acceptance of the UNTOC and the UNCAC mainly comprise political, national interest and anticorruption strategy considerations. Meanwhile, the challenges for the acceptance and implementation of these two international conventions involve not only good governance and the rule of law considerations but also the need to integrate them domestically into the national legal system. In recent years, because of these two important international conventions, China’s international cooperation has resulted in some practicable achievements, especially in terms of individual asset recovery. [read more...]
Article | 13 Tsinghua China L. Rev. 83 (2020)
Legal Realism and Chinese Law: Are Confucian Legal Realists, Too?
By Norman P. HO
This article argues that classical Confucian legal thought and approaches to adjudication are best understood as an (American) legal realist approach to law and adjudication. By showing the similarities classical Confucian legal thought shares with American legal realism, there is nothing fundamentally uniquely “Sinic” about classical Confucian approaches to adjudication, which hopefully will bring Confucian legal thought more into dialogue with Western theories of law and adjudication. American legal realism, which has experienced heavy criticism and even scorn by legal philosophers, actually has important applications even in non-American systems of law, and should be treated with more respect and seriousness by legal theorists. In addition, Many of the ideas and principles of American legal realism are not really novel; they can also be found in earlier legal traditions, such as the Confucian legal tradition. [read more...]
Article | 13 Tsinghua China L. Rev. 127 (2020)
China’s Recent Civil Law Codification in the High-tech Era: History, Innovations, and Key Takeaways
By Dessie Tilahun Ayalew
This note is organized under three basic sections. The first section tries to revisit the history of the codification of civil law in China and responds to questions concerning the historical episode of the genesis and development of the codification. The second section focuses on the innovations reflected on the new Chinese Civil Code as a result of decades of legislative and judicial practice in China. Thus, the unique attributes of the Civil Code as a generation of “high-tech era” civil code will be analyzed. The third section introduces the key takeaways for jurisdictions that either adopt a new civil code or revise the same. Some concluding remarks and policy observations will end up the issues of this note. [read more...]
China Law Update | 13 Tsinghua China L. Rev. 149 (2020)
Personal Information Protection Under Chinese Civil Code: A Newly Established Private Right in the Digital Era
By Raymond Yang Gao
For the first time, the newly enacted Chinese Civil Code has established a legal basis for personal information protection as a matter of private law. By this virtue, China has set forth a basic private law framework governing the protection of personal information along with privacy. Focusing on personal information protection under the Civil Code, this note briefly introduces its evolution, analyzes its legal nature and normative content, and discusses the significance in the current legal framework. [read more...]
China Law Update | 13 Tsinghua China L. Rev. 165 (2020)
The Civil Code and the Private Law Protection of Personal Information
By Xu Duoye
This note first reviews China’s personal information protection laws before the Chinese Civil Code, and then it introduces the Civil Code’s rules on personal information, with an emphasis on the new developments. Further, the note discusses the roles of private law in personal information protection and evaluates to what extent the Civil Code fulfills these roles. Lastly, it predicts the future development of China’s private law protection for personal information, based on the Request for Public Comments on the Personal Information Protection Bill. [read more...]
China Law Update | 13 Tsinghua China L. Rev. 187 (2020)
In the Context of Chinese Constitutionalism and the Hong Kong Basic Law: Is “Separation of Powers” a Delusionary Product?
By Fu Kwong Or
This note critically examines the validity of the assertation that there is “Separation of Powers” in the Hong Kong Special Administrative Region of China, in the discourse of Chinese Constitutionalism and the context of the Hong Kong Basic Law. The author argues that the “Separation of Powers”, as a political discourse, is problematic in the context of the HKSAR, a semi-autonomous administrative region. By adopting the Foucauldian concept of the microphysics of power relations, the author further explores the intrinsic powers among institutions under the existing order. At last, this note purports to destabilize the inherent ideology the concept relies upon, and thus to sensitize any substantive socio-legal-political progress in Hong Kong, instead of the endless and overdue debates on doctrinal and formalist legal concepts. [read more...]
China Law Update | 13 Tsinghua China L. Rev. 201 (2020)

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