Volume 8, Number 3 (September 1999)

ARTICLES

CHINESE REAL ESTATE MORTGAGE LAW, Patrick A. Randolph, Jr. and Lou Jianbo

 

LAW AND DISCRETION IN THE CONTEMPORARY CHINESE COURTS, Margaret Y. K. Woo

 

COMMENTS

CRIMINALIZING MONEY LAUNDERING AS A METHOD AND MEANS OF CURBING CORRUPTION, ORGANIZED CRIME, AND CAPITAL FLIGHT IN RUSSIA, Sam Chung

 

THE EROSION OF REFUGEE RIGHTS IN AUSTRALIA:  TWO PROPOSED AMENDMENTS TO THE MIGRATION ACT, Andrew N. Langham

 

LEGALIZATION OF THE BIRTH CONTROL PILL IN JAPAN WILL REDUCE RELIANCE ON ABORTION AS THE PRIMARY METHOD OF BIRTH CONTROL, Evy F. McElmeel

 

THE DUMPING OF THE NEW CARISSA:  AN ANALYSIS OF THE EMERGENCY PROVISIONS OF THE LONDON CONVENTION, Jill S. Murakami

 

CHINESE REAL ESTATE MORTGAGE LAW

Patrick A. Randolph, Jr.

Lou Jianbo

 

        Abstract:  This Article reviews the developing Chinese law pertaining to real estate mortgage loans with a focus on the questions that an American practitioner might have about the Chinese system.  It identifies those areas of difference between the American and Chinese systems that might raise concerns for an American practitioner.  Attention is given to issues of concern both to parties functioning as lenders and to parties functioning as borrowers or investors in mortgaged property.

        Although Chinese lawmakers have made major steps in recent years to provide clarity and predictability in the laws pertaining to mortgages, some of these laws have minor internal conflicts.  In addition, these laws establish protected interests for mortgagees or for lessees that would be viewed in the American legal system as impediments to open market operation.  One area of acute concern is the uncertainty as to the parties’ ability to alter through contract the operation of Chinese laws affecting the mortgage relationship.  Despite the provisions of the new Contract Law promoting freedom of contract, other specific provisions in mortgage-related laws lead to uncertainty as to the flexibility of Chinese law for parties to a mortgage contract.

        Also examined is the tendency of Chinese mortgagees to rely less heavily on their security interest mortgages than Western lenders.  This is due in part to uncertainty regarding the value of Chinese real estate in general, but also because of uncertainty regarding the enforcement of Chinese mortgage and foreclosure laws.  Greater adherence to the rule of law will lead to greater reliability of mortgages, which in turn will make capital more available to Chinese real estate investors.

        The conclusion addresses the major areas of concern remaining in the Chinese legal framework.  These include the mortgagee’s rights to control transfer of the mortgaged property and to collect rents prior to default, an apparent inhibition on lending funds for construction purposes, the special protections against the mortgagee given to lessees, and the mortgageability of leaseholds in general.

 

LAW AND DISCRETION IN THE CONTEMPORARY CHINESE COURTS

Margaret Y. K. Woo

        Abstract:  The last twenty years of Chinese legal reforms have been particularly interesting to scholars and activists alike.  During this period, Chinese legal reforms have moved from purely substantive changes in economic laws to the realm of domestic structural reforms of the court system.  Today, legal reformers are discussing the use of open trials, adversarial advocacy, and even judicial independence.  This Article explores how far some of these reforms may go by considering the path of structural and procedural changes adopted by the Chinese courts in the past twenty years.  It includes an analysis of the tension faced by all legal systems in balancing law and predictability with equity and discretion.  It focuses on how the Chinese have utilized an ideology of supervision in maintaining this balance, and predicts the future course of legal reforms in China.

CRIMINALIZING MONEY LAUNDERING AS A METHOD AND MEANS OF CURBING CORRUPTION, ORGANIZED CRIME, AND CAPITAL FLIGHT IN RUSSIA

Sam Chung

        Abstract:  In the wake of the post-Soviet privatization in the Russian Federation, corruption and organized crime have flourished, contributing to capital flight, economic instability, and the collapse of Russia’s financial system.  Over the same period, Russian legislators have worked to reform the legal system in order to facilitate their country’s transition to democracy and the rule of law.  In 1997, legislative efforts led to the enactment of a new criminal code that emphasizes the rights of the individual as opposed to the power of the government.  More recently, several draft bills targeting money laundering activities and banking reform have been introduced in the Russian Parliament in an effort to confront Russia’s economic crisis.  Government corruption and the close connection between organized crime and the banking industry, however, have led to fierce opposition to the enactment of such reform measures.  Consequently, these measures have been stalled.  To confront the problems of crime and economic crisis, Russia should enact a comprehensive anti-money laundering system that incorporates provisions similar to those contained in the recent draft bills.  In light of the success of the U.S. anti-money laundering regime, the enactment of a similar system in Russia would be a significant step towards confronting organized crime, government corruption, and an ailing economy.

THE EROSION OF REFUGEE RIGHTS IN AUSTRALIA: TWO PROPOSED AMENDMENTS TO THE MIGRATION ACT

Andrew N. Langham

        Abstract:  The Australian government has proposed two amendments to the Migration Act.  The first excludes judicial review of administrative determinations in the immigration context.  The second severely limits how and when detained refugees can access information regarding their rights as asylum seekers.  Refugees arrive in Australia vulnerable and wholly ignorant of the legal system, and must make their claims for asylum in a politically hostile atmosphere.  Current immigration laws protect the integrity of the system by making judicial review of immigration determinations possible in some cases and by giving refugees access to information on the refugee determination process.  The proposed amendments will undermine the accuracy and effectiveness of Australia’s system for determining refugee status, which will inevitably lead to mistakes.  Such mistakes will result in a violation of the refoulement principle, under which no refugee may be returned to any country where he or she is likely to face persecution or torture.  The proposed amendments will weaken Australia’s refugee determination system and should be rejected.

LEGALIZATION OF THE BIRTH CONTROL PILL IN JAPAN WILL REDUCE RELIANCE ON ABORTION AS THE PRIMARY METHOD OF BIRTH CONTROL

  Evy F. McElmeel

        Abstract:  The United Nations has decreed that access to a variety of methods of birth control is a basic human right, that prevention of pregnancy, not termination, is the goal of birth control, and that abortion is an unacceptable method of birth control.  Until recently, condoms and the rhythm method were the only legal forms of contraception in Japan.  The high failure rates of these methods, coupled with access to abortion on demand, made abortion the de facto primary method of birth control in Japan.  The Japanese government’s recent decision to end the ban on oral contraceptives will reduce the number of abortions in Japan.

THE DUMPING OF THE NEW CARISSA: AN ANALYSIS OF THE EMERGENCY PROVISIONS OF THE LONDON CONVENTION

Jill S. Murakami

        Abstract:  The London Convention prohibits the dumping of hazardous materials into the ocean.  This prohibition may, however, be suspended in emergencies.  The bow of the M/V New Carissa (“New Carissa”), which contained approximately 135,000 gallons of oil, was dumped into the Pacific Ocean under the emergency provisions of the London Convention.  An analysis of the dumping of the New Carissa illustrates the weaknesses of these provisions.  As written, the provisions are ambiguous and open to varying interpretations.  As a result, nations may use the emergency provisions as loopholes to dump substances that they would otherwise be prohibited from dumping, thereby undermining the purpose of the Convention.  Furthermore, because the London Convention does not provide for international monitoring and enforcement, there is less incentive for nations to comply with the Convention’s dumping prohibitions and a greater likelihood that the emergency provisions will be loosely interpreted.  Left unresolved, such weaknesses could have severe international implications.  The emergency provisions should be read restrictively in light of the precautionary policy and purpose of the London Convention and should be clarified to ensure they are uniformly applied by Contracting Parties.