GLOBAL LAW REVIEW(No.4,2009)

Vol. 31 July 2009 Number 4

CONTENTS

THEORETICAL FRONTS

Empirical Research Method of Law and Its Location Selection……………………………… Guo Yunzhong 5

New Theory on Judicial Review in the U.S. against the Background of Anti-Terrorist

Campaign………………………………………………………………………………………Qi Jiangang 17

Study on the Case Law of the U.S. Supreme Court on Aliens' Right to heas corpus……………… Ren Yue 26

Rectification of the Term "Guiding Case" …………………………………………………… Liu Fengjing 35

INTRODUCTION AND COMMENTS

On the Real Estate Guarantee System in Switzerland……………………………………………Chen Huabin 42

Questionable Patents and Reconstruction of Patent Right in the U.S. ………………………………Chen Wu 53

Balance of Interests in U.S. Judicial Practice Relating to Environmental Torts

……………………………………………………………………………Wang Binhui and Tang Yuhong 61

The Doctrine of the Most Significant Relationship in American Conflict of Laws……………… Xu Qingkun 69

The Advantages and Disadvantages of the Principle of Only Indictment in Japan…………… Zhang Liming 81

American Regulations on Private Equity Fund: Development and Reflections……………………… Guo Li 90

Constitutive Elements of Tort of Negligence for Violation of "Informed Consent"

in Anglo-American Law…………………………………………………………………Wang Zhanming 99

Civil Society Organizations in Hungary………………………………………………………Jiang Xiaohong 109

INTERNATIONAL LAW ISSUES

The Vote Distribution System of IMF and Its Reform：From the Perspective of

Developing Countries……………………………………………………………………………Yu Feng 115

The EU Income Tax Coordination Mechanism and Its Implication for China ……………… Zhang Zhiyong 124

Anti-terrorist Campaign and Minimum Standards of International Criminal Justice

……………………………………………………………………… Xie Youping and Song Yuansheng 134

BOOK REVIEW

What Kind of Comparative Law do We Need?-A Review of Basil Markesinis' Comparative

Law：in the Courtroom and in the Classroom……………………………Shi Maosheng and Zhang Wei 147

SELECTED TRANSLATION OF FOREIGN LEGISLATION

Law of the Russian Federation on the State Protection of Crime

Victims, Witnesses, and Other Parties of Criminal Proceedings…………………………………………… 153

Notice Soliciting Contributions for Theme Discussion …………………………………………………… 16

Empirical Research Method of Law and Its Location Selection……………………………… Guo Yunzhong

［Abstract］ Empirical research differs from analytical research in that it takes "going out of the ivory tower and into the fields" as its form and problem discovery as its main value. Moreover, as law has the characteristic of "local knowledge", the selection of locations for empirical research becomes both important and complex. The classic observation of individual cases had a great degree of randomness in the selection of survey location in the past because of restrictions in information, transportation and fund. The key to the selection of survey location is the determination of appropriate samples based on the identification of the object of survey as a whole. Since document in broad sense includes all valuable materials, location selection of document analysis depends on concrete types of documents. Compared with other methods, on-site experimentation is faced with many difficulties, especially those resulting from human interference. Therefore, in the determination of location of experimentation, various factors, such as nature, economy, culture, personnel, cases and so on should all be taken into consideration.

New Theory on Judicial Review in the U.S. against the Background of Anti-Terrorist Campaign………………………………………………………………………………………Qi Jiangang

［Abstract］After the terrorist attacks of September 11, 2001, there has been heated debate in the U.S. academic circle on judicial review under the state of emergency triggered by terrorist incidents. Eric A. Posner and some other scholars put forward the "deference theory", which differs not only greatly from the civil libertarian doctrine of "the supremacy of rights", but also from the mainstream "compromise theory". Based on the theory of tradeoff between freedom and security and the theory of comparative institutional performance, the proponents of the "deference theory" hold that courts and the Congress should show deference to the administrative bodies as long as the acts of the latter are based on rational grounds, so as to promote the overall welfare of society. They have also aggressively rebutted criticisms raised by the proponents of the "panic theory" and the "democratic failure theory". Generally speaking, the "deference theory" has offered a new cognitive mode to explain judicial review under the state of emergency triggered by terrorist incidents.

Study on the Case Law of the U.S. Supreme Court on Aliens' Right to heas corpus……………… Ren Yue

［Abstract］This article discusses the attitude changes of the U.S. Supreme Court on applications of habeas corpus by aliens, with a focus on the most recent cases concerning the alien detainees in the U.S. Naval Base in Guantanamo Bay. It argues that whether aliens can apply for a writ of habeas corpus in the United States is an indication of whether they may enjoy basic human rights there. This is mainly because aliens are vulnerable in the United States with limited knowledge about the legal, political, economic, social and cultural conditions of the country. The study demonstrates that the U.S. Supreme Court plays a crucial role in safeguarding aliens' right to [WTBX]habeas corpus.

Rectification of the Term "Guiding Case" …………………………………………………… Liu Fengjing

［Abstract］ There are three terms in common use to express the notion of judicial precedents: case law, precedent and guiding case. In recent years, the Supreme People's Court has defined the task of building and improving the system of guiding case. Against such a background, the term of "guiding case" has become the most commonly used term in law circle in China. Therefore, it is necessary to conduct a practical study on the usage and context of the terms of "guiding case", "precedent" and "case law". Compared with "precedent", the term "guiding case" has the following problems: redundant in the form of expression, deviated in the definition of functions, and difficult in scholarly communication. In the rectification of the term "guiding case", the follow principles should be adhered to: distinguishing the differences and similarities, reflecting the true nature of the terms, following the common practice, and being reasonable and acceptable. At the same time, feasible and concrete measures should be taken to ensure the success of the rectification.

On the Real Estate Guarantee System in Switzerland……………………………………………Chen Huabin

［Abstract］Before the enactment and promulgation of the Swiss Civil Code in 1907, there existed over 60 kinds of real estate guarantee systems in various places within the country. However, through efforts made by Eugen Huber, the drafter of the Swiss Civil Code, to unify the system, the Swiss Civil Code finally provided for three forms of real estate guarantee systems-land rent securities, mortgage obligation securities, and right to registration guarantee (land mortgage securities). Several basic principles were established under these systems, including principles of public summon, concrete object and order, independence and guarantee of marketability. These three forms of real estate guarantee systems and relevant principles adopted by the Swiss Civil Code serve as important reference for the improvement of real estate guarantee system in China.

Questionable Patents and Reconstruction of Patent Right in the U.S. ………………………………Chen Wu

［Abstract］The existence of a large amount of questionable patents leads not only to poor quality of patents, but also to huge private and social costs to the innovation system-which became main motive force behind the adoption of the Patent Reform Act of 2007 in the U.S.. The effective functioning of patent system depends on the system of acquisition of patent right and the system of enforcement of patent right. The many shortcomings resulted from questionable patents indicate the failure of the patent system as a whole. After an extensive debate on the three patent reform proposals, the approach of reconstruction of patent right was chosen, and the strongpoint of reform is to change the presumption of validity of patent right. This is an important change of the U.S. patent policy in 50 years.

Balance of Interests in U.S. Judicial Practice Relating to Environmental Torts

……………………………………………………………………………Wang Binhui and Tang Yuhong

［Abstract］This article, through the analysis of the case of Boomer v. Atlantic Cement Co., introduces the unique characteristics of the balancing of interests in U.S. judicial practice relating to environmental torts. The U.S. courts, by coordinating individual, environmental, social and economic interests through extensive application of economic efficiency analysis, have gradually clarified the main elements in the balancing of interests and thereby improved the relevant case law. In comparison, Chinese judges, in balancing interests in cases involving environment pollution, have exhibited many shortcomings, such as inadequate orientation of macroscopic-thinking and ignoring the application of economic efficiency analysis, etc. In view of the above problems and based on the U.S. experience, the author puts forward some suggestions on improvement in this area.

The Doctrine of the Most Significant Relationship in American Conflict of Laws……………… Xu Qingkun

［Abstract］The establishment of the doctrine of "the most significant relationship" in the U.S. cases law is the result of breaking the barriers of traditional conflict of laws and of achieving justice in individual cases. It is the common practice to determine "the most significant relationship" by evaluating "governmental interests" in relevant jurisdictions on the base of dépecge. The doctrine has evolved into rules in recent tort cases with foreign elements. It is just a transitional approach in the Second Restatement of Conflict of Laws and in Professor Reese's theory on conflict of laws. In fact, Reese lays more emphasis on policy analysis and development of detailed rules. The doctrine has drawn criticisms from the majority of authoritative scholars in the U.S.

The Advantages and Disadvantages of the Principle of Only Indictment in Japan…………… Zhang Liming

［Abstract］In modern history of the development of criminal prosecution, Japan has adopted the principle of only indictment while abolishing the principle of removal of evidence. In achieving the expected objectives, such as elimination of prejudgment, prevention of bias and the establishment of adversary system, the principle of only indictment does play a positive role. However, it has its limitations. For example, the cost of encroachment on substantive truth and lack of lawsuit efficiency. The reform carried out in this respect is still facing dilemma in Japan. The Japanese experience and lessons learned in transplanting the principle of only indictment is of reference value to China in our reform of criminal prosecution mode.

American Regulations on Private Equity Fund: Development and Reflections……………………… Guo Li

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［Abstract］Private equity funds have long been largely exempted from registration under the U.S. securities law framework in terms of issuance, vehicle and adviser. In recent years, in response to their enormous expansion in scale, risk exposure and retailization tendency, SEC has strengthened its supervision on PEFs by implementing or proposing new rules on adviser registration, anti-fraud, and investor qualifications. Such tightening on exemption brought in different results and hassles. Shadowed in the ongoing severe financial crisis, the newly proposed Congressional legislation may regulate the private equity funds into a new registration regime.

Constitutive Elements of Tort of Negligence for Violation of "Informed Consent"

in Anglo-American Law…………………………………………………………………Wang Zhanming

［Abstract］Professional malpractice in violation of "informed consent", in situation of physician and patient, has three constitutive elements: physician's failure to inform, injury suffered by patient, and causation between the failure and injury. A physician is exempted from the duty to inform under three circumstances: the patient's in-the-known fact, emergency, and therapeutic privilege. Injury refers to specific injury of personal legal interests, rather than patient's right to independent determination. Causation should be determined by reasonable patient doctrine, rather than particular patient doctrine, because the latter weakens the necessity of tort of negligence in medical disputes.

Civil Society Organizations in Hungary………………………………………………………Jiang Xiaohong

［Abstract］In the past two decades, Hungary has developed legal and institutional mechanisms to safeguard the rights to association and to promote the sound development of civil society organizations. This article introduces the development of civil society organizations (CSOs) in Hungary from the perspectives of the number, the type of organization, the field of activities, geographical allocation, revenue resource and human resources. The emphasis is put on the analyses of the regulatory environment of CSOs in Hungary. The author thereby explores the helpful experience for the development of CSOs in China.

The Vote Distribution System of IMF and Its Reform：From the Perspective of

Developing Countries……………………………………………………………………………Yu Feng

［Abstract］The way votes are distributed at IMF is directly related to the voice of IMF members. The vote distribution system of IMF has not kept up with the changing international economic realities, and has not provided an effective safeguard for developing countries to participate in decision making. From the perspective of developing countries, analyzing the vote distribution system of IMF by historical method, and reviewing the relevant reform suggestions made by both developed and developing countries, have great significance to laying a social foundation of cooperation for the construction of a stable and harmonious international monetary and financial order.

The EU Income Tax Coordination Mechanism and Its Implication for China ……………… Zhang Zhiyong

［Abstract］Double taxation and tax discrimination caused by income tax systems of Member States of the EU have resulted in the barriers on the free movement in the internal market. Consequently, EU has coordinated the income tax systems of its Member States and extended the scope of application of non-discrimination principle in the field of taxation. However, the current coordination mechanism still can not thoroughly solve the problems of double taxation and tax discrimination because of tax sovereignty enjoyed by Member States. Nevertheless, the practice of EU may be of reference value to China in eliminating income tax barriers in regional economic cooperation.

Anti-terrorist Campaign and Minimum Standards of International Criminal Justice

……………………………………………………………………… Xie Youping and Song Yuansheng

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［Abstract］Terrorism is a difficult problem faced by mankind today. It poses, by violent or cruel means, serious threat to the world peace, economic development, social life, even to the human civilization as a whole. It is a serious violation of law and does not have any moral basis. Nevertheless, it has deep-rooted causes. Consequently, China should clarify the nature of terrorism and anti-terrorism, correctly understand the conflict between anti-terrorist campaign and the value and effect of the principles of international criminal justice, draw experience from the counter-terrorist legislation and judicial practice of other countries, so as to correctly handle the relationships between terrorism and anti-terrorism and between anti-terrorism and principles of international criminal justice, thereby finding a practicable way to resolve the difficult problem of terrorism.