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Current PhD Projects

Chinese Positions on the Use of Force by States

Andreas Lehrfeld

Project Associate, International Affairs Division, Stiftung Mercator, alehrfel(at)smail.uni-koeln.de

Abstract

In recent years, new and multifaceted challenges threatening regional and global security have emerged. The system of collective security with the UN Security Council at its core remains a permanent subject of criticism. Additionally, on-going violent breaches of regional and global peace by non-state actors not only means an immanent threat for the international community but also fuels the need for clarification by international law mechanisms. China’s state practice and theoretical positions of Chinese scholars on the use of force in international relations are the focus of this doctoral project. This includes topics such as the threat of using military force, the use of force by non-state actors and the issue of humanitarian intervention. Being a Permanent Member of the UN Security Council and one of the largest contributors to UN peacekeeping missions, the People’s Republic of China represents a major player in global security. Yet, while its economic outreach is high, China is far more cautious in allowing the use of force in international conflicts and rather refers to the pivotal pre-eminence of the principle of state sovereignty. Hence, as China’s rise affects the current US-led global order and poses a challenge for Western states, an in-depth understanding of Chinese positions on international law is vital. Facing an increasingly complex international security situation and China’s rising importance for global order, this doctoral project intends to close the academic void by contributing an analysis of Chinese positions on the use of force by states as an urgent issue in public international law.

 

Establishment of a Unified Property Management System in China – Possibilities and Limitations of Legal Transfers

Anna Sarah Malis

Project Manager, China Central Consultants GmbH, annamalis@gmx.de

Abstract

A specific feature of Chinese Law is the separation of land ownership and ownership in buildings and the registration of the rights relating to them at separate authorities. The missing connection of those authorities has led, for example, to multiple registrations of the same property or building, because the points of time of the registration often differ greatly. In order to implement an improved property protection, the real property law was adopted in 2007. The Chinese legislator heavily relied on the German legal systems while drafting this law. Furthermore English and US-American influences can be found. As the legislator chose to adopt rules and principles from different legal traditions, the real property law does not indicate clearly what kind of property registration system would be the most suitable one. By using the example of the unification of the register authorities in China, the study answers the question to what extent law from other jurisdictions can be transferred into Chinese law. Based on legal-historical observations, the German land registration system and thus the continental-European legal system may serve as a model of building a property registration system. However, the Chinese legislature could also use the Torrens-system for orientation, which is used, amongst others, in England and Australia. However, a more pluralistic approach to legal transfers could also lead to a model of its own kind.

 

Courts and the Public in China

Marco Otten

make.otten(at)googlemail.com

Abstract

Public participation in court trials acts as an important element of the justice system in many national legislations: Especially in the area of criminal law the public participates in the ruling of courts, for example as a jury. The courts on the other hand try to win the public over to their side, for example through public relations work. The description of the relationship of courts and public in China is the objective of this work. In a first step, the historical dimension of the topic will be examined: What was the role of the public in the justice system in the past, for example under the Qing dynasty, during the Republic of China or under Mao? Following this chapter, a closer look will be taken on the current situation of public participation in court trials, where different forms of participation are observable: The criminal procedure law requires witnesses to assist the authorities when enforcing the law. Other elements shaping the relationship between courts and public consist of participation in juvenile trials, where the principle of publicity generally does not apply due to the protection of minors. Local experiments with juries in court trials pose yet another research item in the dynamic field of public participation in the justice system. There are, however, other, arguably more informal channels the public can use to participate in court trials, e.g. petitions or pressure from the media. Lastly, the courts in China also take measures to influence the public opinion towards a more positive view when it comes to the justice system. By examining the relationship between courts and public the work aims to deliver another element to complete the picture of the environment Chinese courts exist in.

 

Judicial Control of Administrative Actions under the Revised Administrative Litigation Law in China

Nina Rotermund, M.A., LL.M., LL.M.

Fellow of the Konrad-Adenauer-Foundation

nina.rotermund@smail.uni-koeln.de

Abstract

The Administrative Litigation Law (ALL) in China was revised in 2015 to solve the problems with case registration, adjudication and enforcement. The ALL gives citizens a remedy to sue the state, but ever since its initial enactment in 1990, an effective implementation has been impeded due to a weak position of Chinese judges being dependent on local governments in terms of salary, promotion, and funding. However, the new administrative litigation law seems promising as it provides some means of control for judges to encounter noncompliance and resistance by local authorities and plaintiffs. These means can be differentiated in those that affect the pre-trial phase of case registration, the trial process with the hearing and the post-trial phase of the enforcement of the judgment. At pre-trial stage, basic people's courts face external interference from local authorities. That is why in the revised ALL, the jurisdiction of intermediate people's courts was considerably broadened in first instance trials. During the hearing, the new regulations now demand that the heads of the administrative departments are present and if they do not show up, the judge is free to publish the officials’ misbehaviour. This also applies if local authorities refuse to enforce the judgment. The judges' strategies to encounter noncompliance and resistance by local authorities and plaintiffs are the main focus of this project.

The Legal Conscience of a Rising Power – Chinese International Lawyers Between Post-Colonialism and Nationalism: 1979-Present

Lucas Brang

Research Assistant, Institute of East Asian Studies, University of Cologne

Abstract

Current accounts of China’s rise in international law seem to alternate between two sharply contradicting views: one of China as an apologetical objector to the post-Cold-War international legal order, constantly condemned for its allegedly negative human rights record, its supposedly ‘conservative’ and ‘formalistic’ stance on matters of international law-making and dispute resolution; or, more recently, for its expansive policy along its maritime borders – and one of an essentially peace-loving developing state and natural leader of the Third World. Both views, I claim, are one-sided if not analyzed in historical perspective. This thesis argues that one can only understand the current stance and professional identity of Chinese international lawyers if the two conflicting traditions of international law scholarship in post-Mao China and their inherent tension are accounted for: an affirmative, post-colonial internationalism on the one hand; and an inward-looking form of Chinese exceptionalism on the other. However, the origins of this chasm must not be sought after, as is the case in recent research, in a deep-historical fashion which claims a continuity of Chinese attitudes toward international law since the 19th century. Rather, it is the result of a fundamental shift of the international legal order itself since the watershed year of 1989. This change, as characterized by a turn from the centrality of state sovereignty to the criticism thereof, constituted a sharp break with the post-colonial legal order of the late Cold War era. An era, that is, which was formative for the current Chinese discipline of  international law both institutionally, personally, and conceptually – and an era which calls for a comprehensive re-appraisal as the constitutive phase of the Chinese discipline. A critical, non-Eurocentric account of China’s international law scholarship surely needs to appreciate the progressive and internationalist elements inherent in this ‘post-colonial legacy’. Insofar as China grows out of its acquired role as a developing Third World state, however, it becomes increasingly questionable if it still exhibits such internationalist sentiments. One must therefore further ask how far this post-colonial identity of Chinese international lawyers can serve as a ‘legal conscience’ to a rising China.

Developing Judicial Autonomy in Recent Chinese Court Reforms

Yu Haixu

haixuyu@hotmail.com

Abstract

The recent judicial reforms in China, beginning in 2013, is expected to radically change the way the courts are functioning. Specifically, the goal is that courts can protect the judicial integrity by adjudicating independently according to the law. The issue of judicial independence is then discussed by scholars repeatedly. However, in the PRC political environment, which has been fundamentally influenced by Soviet Leninism, judicial independence has lost the original meaning of “checks and balances”. It is then appropriate to use “judicial autonomy” to describe the goal of the judicial reform. In the PRC political environment, the judicial autonomy or the court autonomy is faced with certain institutional challenges, including the impending need for the reform of judicial budget and the de-administration in the whole court system. Theorists have revealed the major problems of the judicial budget faced by most lower level courts. More than half of the judicial resources come from local government, which means that the courts must rely on the local administration to survive. The bureaucratic system in the Chinese courts is another frequently discussed issue that challenges the judicial autonomy. Each judge belongs to a certain administrative ranking, which means judges are managed in the same way as the public servants. Since the PRC constitution emphasizes the “independent adjudication” of the court rather than the judges, the adjudication is then easily influenced by the higher-ranking judges.

The overall objective of the dissertation project is to find out the possible way of developing judicial autonomy in the recent judicial reform. The study intends to clarify the concept of judicial autonomy in the PRC context. The way of developing both the court autonomy and the adjudication autonomy is expected to be found out through the analysis of the institutional factors of the judicial system.

 

The Development of Smart Courts in China

YANG Fan

the.yangfanSpamProtectiongmail.com

Abstract 

Smart courts are courts where at least part of the litigation activities can be carried out online or courts that apply big data, cloud computing, artificial intelligence and high-tech equipment to conduct or prepare adjudication or to facilitate enforcement. They are built for promoting access to justice, improving judicial transparency and facilitating just outcomes of legal disputes, according to SPC. Building smart courts has been regarded as highly important as judicial reform measure in China. The overall objective of the study is to present an account where the smart courts development currently stands in China, which includes the image on how smart courts are developed and formed as well as how they work. The study also intends to clarify the concept of smart courts in the PRC context, especially the roles of smart courts in PRC’s judicial reform and governance. Implications smart courts bring will also be discussed.
 

The Principle of Proportionality in Chinese Administrative Law

Hannah Klöber

Research Assistant, Institute of East Asian Studies, University of Cologne

hkloeber(at)smail.uni-koeln.de

Abstract

Balancing and adjusting different interests is a fundamental function of law and its claim to legitimacy and justice. To achieve this, several approaches have emerged in different legal systems, among them the principle of proportionality. This principle provides a doctrinal method of review to guarantee that the use of public power causes minimal possible damage to conflicting interests. 

This thesis examines the current state of the proportionality principle in Chinese administrative law from a comparative perspective. It starts out from the well-established principle in German law, shedding light on its roots and defining its function in the legal system. Building on this foundation, it analyses the principle in Chinese law, with regard to its role and content in administrative law theory and how it affects court practice. The former is done via an analysis of the discourse of legal scholars, to discover where and when the principle was introduced into the Chinese legal culture and what relevance it has gained. The latter consists of an analysis of court decisions employing the term, to see if court practice corresponds to the theoretical foundation. Through this the thesis seeks to glean a broader insight into the value of the proportionality principle. It searches for the reasons for the principle’s transplantation and intends to assess if its purpose and function remain in line with its original conception. In a final step the thesis plans to evaluate the potential benefits for Chinese actors in employing the principle, as well as the limitations set by the Chinese legal system.

The AI-assisted Sentencing System in Chinese Courts

Cui Jingzi

jcui4SpamProtectionsmail.uni-koeln.de

Abstract

AI-assisted sentencing system is emerging in China’s judicial system, providing judges with guidance and support when it comes to criminal sentencing. This system could draw a knowledge graph with the technical support of big data and cloud computing, and then perform similar cases identification and model training by extracting the elements of legal documents, after which it would provide judges with sentencing suggestions and deviation warnings to assist judges to make decisions. This research aims at providing a closer look into the AI-assisted sentencing system by clarifying its applications in courts and operation mechanisms. Furthermore, issues involved with this system concerning either the judicial power or individual rights will be presented, given the goal of this research is to explore how to ensure the evolution of this system is compatible with criminal justice and to establish a futureproofing legal framework.

Undermining, Strengthening, or Transforming Law in the Data Era: China’s Social Credit System

Marianne von Blomberg

m.vonblomberg[at]uni-koeln.de

Abstract 

This dissertation explores the relationship between data-driven regulation and the law. To this end it investigates the case of the Social Credit System (SCS) in China. Centred around a rhetoric of trustworthiness, the SCS introduces data-driven forms of public regulation that combine traditional regulatory tools with trust assessments and reputation instruments. On the one hand, the SCS helps strengthen the law by solving long-standing enforcement problems and improving corporate and government information transparency. On the other hand, SCS mechanisms also violate fundamental principles of Chinese public law, and blurs the boundaries between private and public law itself. Finally, the SCS transforms the current legal order as its instruments reshape the spaces for administrative and judicial discretion. In sum, the SCS may be conducive to realizing the vision of a socialist legality with Chinese characteristics with the Communist Party at its centre.