Recent Abstracts and Article Links

The complete collection of articles and abstracts for the Pacific Rim Law & Policy Journal is available in the Marian Gould Gallagher Law Library digital archives.

Volume 18  |  Issue 3  |  June 2009

Getting Property Right: "Informal" Mortgages in the Japanese Courts

Frank G. Bennett, Jr.
18 Pac. Rim L. & Pol'y J. 463

abstract   full article


Electronic Money and the Law: Legal Realities and Future Challenges

Nobuhiko Sugiura translated by Jean J. Luyat
18 Pac. Rim L. & Pol'y J. 511

abstract   full article


A Tale of Regulation in the European Union and Japan: Does Characterizing the Business of Stored-Value Cards as a Financial Activity Impact its Development?

Jean J. Luyat
18 Pac. Rim L. & Pol'y J. 525

abstract   full article


Australia's Heritage Protection Act: An Alternative to Copyright in the Struggle to Protect Communal Interests in Authored Works of Folklore

Jake Phillips
18 Pac. Rim L. & Pol'y J. 547

abstract   full article


Reaching Back to Move Forward: Using Adverse Possession to Resolve Land Conflicts in Timor-Leste

Charlotte C. Williams
18 Pac. Rim L. & Pol'y J. 575

abstract   full article


Volume 18  |  Issue 2  |  April 2009

A Study of Cyber Violence and Internet Service Providers' Liability: Lessons from China

Anne S.Y. Cheung
18 Pac. Rim L. & Pol'y J. 323

abstract   full article


Modernizing Charity Law in China

Rebecca E. Lee
18 Pac. Rim L. & Pol'y J. 347

abstract   full article


No Room for Dissent: China's Laws Against Disturbing Social Order Undermine its Commitments to Free Speech and Hamper the Rule of Law

Mindy K. Longanecker
18 Pac. Rim L. & Pol'y J. 373

abstract   full article


Safeguarding China's Cultural History: Proposed Amendments to the 2002 Law on the Protection of Cultural Relics

Amanda K. Maus
18 Pac. Rim L. & Pol'y J. 405

abstract   full article


Article 14 of China's New Labor Contract Law: Using Open-Term Contracts to Appropriately Balance Worker Protection and Employer Flexibility

Jovita T. Wang
18 Pac. Rim L. & Pol'y J. 433

abstract   full article


Volume 18  |  Issue 1  |  January 2009

Directors' Liability for Corporate Faults and Defaults - An International Comparison

Helen Anderson
18 Pac. Rim L. & Pol'y J. 1

abstract   full article


China's New Anti-Monopoly Law: A Perspective from the Untied States

Thomas R. Howell, Alan Wm. Woloff, Rachel Howe, and Diane Oh
18 Pac. Rim L. & Pol'y J. 53

abstract   full article


Comprehensive Strengthening of Intellectual Property Adjudication Will Provide Powerful Judicial Guarantees for Constructing an Innovation-Based Country and Harmonious Society

Written by Cao Jianming, Translation by Josef Rawert
18 Pac. Rim L. & Pol'y J. 97

Multinational corporations and other foreigners bringing foreign direct investment to China have been willing to operate at a loss and risk having their intellectual property rights ("IPR") infringed without recourse to effective legal protection, because they see a pay-off in the long run. As market reforms deepen and China's economy continues to develop, so too will the power of judicial protection of IPR strengthen, the argument goes. This long-term outlook expects acceptable levels of legal protections for IPR to emerge and that significant competitive advantage will be enjoyed by those firmly established in Chinese markets when that happens. But what is the current state of intellectual property ("IP") protection in China? How are political and social forces influencing judicial reform, and to what effect?

In the following article, former Vice-President of the Supreme People's Court of China, Can Jianming, addresses these questions, acknowledging problems while affirming the gradual progress that has been made. The article itself is an embodiment of one trend of gradual improvement of judicial enforcement of IPR--regular training for the judges across the country engaged in the specialized work of IP adjudication. His article is based on a speech he gave at a January 2007 symposium on IP adjudication in Wuxi, Jiangsu Province, China. Cao gave his remarks after the fifth anniversary of China's accession to the WTO, no doubt finding it an opportune time to reflect on China's progress. China's membership in the WTO brought with it reforms supporting increased IPR protection--a multitude of laws and regulations were repealed, reviewed, revised, and created to conform to the WTO's GATT-TRIPS requirements. Cao explains some specific improvements provided to IPR protection by Supreme People's Court ("SPC") "Interpretations"--regulatory documents issued by the SPC that have binding effect on the adjudicatory work of all courts. He also notes the significant improvement in transparency that results from the publication of IP cases across the country on a single website. Cao summarizes the key tasks ahead for the judiciary, though, significantly, he does not discuss reform of its fundamentally weak institutional structure.

The title of Cao's article reflects two forces that are shaping Chinese society and the work of the judiciary. First, the title refers to China becoming an "innovation-based" country. Independent innovation is a fundamental developmental goal China has set for itself as a means to climb up the value chain in the global economy. China seeks to reduce the patent licensing fees it must pay to foreign IPR holders by providing its factories with indigenous IPR. Second, the title refers to China becoming a "harmonious society." This reflects President Hu Jintao's guiding doctrine, a response to the widening gap between the rich and the poor that accompanied the Communist Party's previous focus on "promoting all-out economic growth."

On January 26, 2006, China's Communist Party Central Committee and its State Council issued the "Decision about Implementing the Outline of the Scientific and Technological Plan and Enhancing Independent Innovation Capacity." On February 9, 2006, China's State Council officially published the referenced "Outline," which explains China's strategy to develop its science and technology through the year 2020.

These documents emphasize a multi-pronged approach to encouraging independent innovation capabilities. One aspect of this approach is proper IP management, which includes strong enforcement of IP rights connected to such independent innovations.

Shortly before Cao wrote this article, the Communist Party, at the last of its plenary sessions of its 16th Central Committee, officially endorsed the doctrine of "harmonious development." Cao explains that as society enters the information age, IP plays an increasingly important role in economic and social interaction. Disputes, sure to arise, must be dealt with fairly and effectively to promote trust in social and economic relationships. It stands to reason that as IP takes on a central role in society, many disputes will concern IP rights.

Foreign and domestic businesses alike will be glad to see Cao addressing some key problems in IPR enforcement head on. Such problems include a plaintiff's inability to attain full compensation, to secure temporary injunctions even when he has a likelihood of succeeding on the merits, and to seek further judicial relief when infringement continues after a trial. Cao also addresses the problem of effectively presenting complex technology-laden facts to a judge with no technical training and suggests methods for judges to increase the efficiency of their trials.

One tool the SPC has at its disposal for improving IPR protection is the SPC Interpretation ("jie shi"). The SPC is not allowed to "interpret" laws--that function is constitutionally reserved for the National People's Congress Standing Committee--but it is allowed to "explain" to the lower courts how the law should be applied. In reality, these interpretations often have substantive legal effect, shaping actors' behavior outside of the court. (5) Cao explains some improvements in IP law embodied in recent Interpretations on unfair competition and trade secrets, trademarks, new plant varieties, and internet-based copyright.

Cao's article presents an overview of IP enforcement issues currently in play in China. While it contains much typical praise for current Party policies, it also reflects the judiciary's earnest response to fundamental political and social trends. The policy of independent innovation provides new incentives for the judiciary to strengthen IPR enforcement. On the other hand, judges' pay, promotion and benefits are still linked to local governments focused on local economic interests. Local governments are thus often tempted to encourage judicial outcomes in conflict with national laws, such as labor or environmental laws. Without fundamental structural reform addressing this local protectionism, improvement in enforcement is likely to continue to take place only incrementally.

full article


Disability Rights in Cambodia: Using the Convention on the Rights of People with Disabilities to Expose Human Rights Violations

Ulrike Bushbacher Connelly
18 Pac. Rim L. & Pol'y J. 123

abstract   full article


China's Environmental Problems: Is a Specialized Court the Solution?

Darcey J. Goelz
18 Pac. Rim L. & Pol'y J. 155

abstract   full article


Redefining Motherhood: Discrimination in Legal Parenthood in Japan

Rachel Brehm King
18 Pac. Rim L. & Pol'y J. 189

abstract   full article


Thin Shields Pierce Easily: A Case for Fortifying the Journalists' Privilege in New Zealand

Devin M. Smith
18 Pac. Rim L. & Pol'y J. 217

abstract   full article


Entitled as Against None: How the Wrongly Decided Croker Island Case Perpetuates Aboriginal Dispossession

Siiri Aileen Wilson
18 Pac. Rim L. & Pol'y J. 249

abstract   full article


Expanding Human Rights to Persons with Disabilities: Laying the Groundwork for a Twenty-First Century Movement

Yanghee Lee
18 Pac. Rim L. & Pol'y J. 283

abstract   full article


Mining the Intersections: Advancing the Rights of Women and Children with Disabilities Within an Interrelated Web of Human Rights

Rangita de Silva de Alwis
18 Pac. Rim L. & Pol'y J. 293

abstract   full article


Digital archive link

Visit the Marian Gould Gallagher Law Library digital archives. for the complete collection of articles and abstracts for the Pacific Rim Law & Policy Journal

Recent Journal Volumes (past 5 years)