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Legal Transplants - Essay Example

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This paper talks that legal transplant signifies the borrowing of a law or a rule by one nation from another. The market economy and civil society have created demands for foreign laws that fit well with China’s customary civil law and other customs…
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Download file to see previous pages The establishment of a market economy and the introduction of an ‘open door’ policy in China have necessitated the need for internationalising Chinese law and there is an increased stress on legal assimilation or transplant, which is to be based on market-associated legal mechanisms. There is a fear in some corners that legal transplantation may end up westernising Chinese law, but to be an economic super power, there is a necessity for China to modernise its law. Much Chinese literature has stressed the need for harmonising or assimilating China’s law with that of international conventions and practices and transplanting into China western laws on market-associated mechanisms. The main objectives of economic and structural reforms and the freedom of productive forces are the main criteria for internationalisation of Chinese law6. Legal transfusions have been carried out around the globe. The rest of Asia has benefitted from the import of laws from China and many South–East Asian nations have imported Islamic laws into their legal systems. There exists corroborative evidence that East African nations have benefited from the transplantation of Indian legal rules. The latest legal developments in Mozambique and Namibia have an influence from South African laws. And today, the close relationship between Africa and China could trigger a new transmission of legal models to support business transactions7. Laws that are consistent with the pre-existing social order or with the local atmosphere are more probable to be successfully transplanted and implemented. A nation is likely to derive economic advantage from a successful legal transplant, but this does not depend the legal rule’s country of origin but whether it is the most apt to resolve a given...
This paper stresses that the PRC government does not refer the international human rights accords as an instant legal source but rather as a reference point of legislation. This connotes that PRC does not want to imitate the exact treaty provisions in its national human rights law but may prefer to fine-tune the substance of international human rights provisions to suit with the Chinese or local scenarios. The author of the paper talks that other human rights deficiencies include, as discussed above, included coerced confessions, restriction of the right to be promptly charged or released and lack of client-lawyer privilege. Freedom to assemble and establish trade unions falls short of ICESCR provisions. It is suggested that a radical change within the Chinese political system is needed to introduce the Human Rights Law in tune with international human rights treaties. Legal adoption of international human rights laws in China should be tailored to the needs of the Chinese one-party system with enhanced safeguards for the ordinary citizen within an authoritarian rule-of-law government is the current need.
This report makes a conclusion that if China really wants a total legal transplant of the international human treaty provisions into its HRL, it should endeavour to implement the following: it should fine tune some chosen laws to the prerequisites of the ICCPR; produce a reliable understanding of the Constitution that is unfailing with the ICCPR; introduce a constitutional amendment to include the norms of the ICCPR; and insert a rule in its ordinary statutes or in its Constitution that requires a prior application of the ICCPR. ...Download file to see next pagesRead More
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