Volume 9, Number 1 (February 2000)

ARTICLES

ANTITRUST IN JAPAN:  THE ORIGINAL INTENT, Harry First

 

ONE COUNTRY, TWO (TAXATION) SYSTEMS: A TREATY IN ALL BUT NAME,  Andrew Halkyard

 

COMMENTS

WATCHING THE WATCHDOG: CHINA’S STATE COMPENSATION LAW AS A REMEDY FOR PROCURATORIAL MISCONDUCT, Keith Hand

 

THE PROPOSED REVISIONS TO JAPAN’S JUVENILE LAW—IF PUNISHMENT IS THEIR ANSWER, THEY ARE ASKING THE WRONG QUESTION, by Jessica Hardung

TRANSLATION

THE JAPANESE FIREARM AND SWORD POSSESSION CONTROL LAW:  TRANSLATOR'S INTRODUCTION, Mark Alleman

 

 

ANTITRUST IN JAPAN:  THE ORIGINAL INTENT

Harry First

     Abstract:     This Article examines the “original intent” of those involved in drafting Japan’s Antimonopoly Act, passed in 1947.  Japanese sources generally assume this legislation to be pure American invention, a foreign transplant that the Japanese did not understand and that was improperly imposed on a country in which antitrust was, and continues to be, irrelevant.  Drawing on original Occupation documents, however, this Article shows that negotiators from Japan’s government understood perfectly well what the legislation was about.  More than understanding, the government of Japan in fact drafted the statute that was finally enacted, and its provisions reflect the success Japan’s negotiators had in achieving many of their goals.  Significantly, a major goal on the Japan side (and one quite consistent with traditional antitrust concerns) was to prohibit exclusionary practices that restricted market access and to “democratize” markets so that entrepreneurs would be provided with a fair opportunity to compete.  This Article sets the statute in its economic context in Japan and traces the drafting process through the numerous revisions of the Act.  This Article also suggests that the story of this process and its outcome holds some lessons for those now interested in drafting some type of international antitrust agreement.  In particular, the story of the adoption of Japan’s antitrust statute demonstrates that the critical difference among antitrust regimes lies less in the substantive law provisions of the statutes than in the institutions of antitrust enforcement that are adopted.  Thus, the substantive provisions of an international antitrust code or agreement are likely to prove less critical than any institutions which will carry out such a code or agreement.

 

ONE COUNTRY, TWO (TAXATION) SYSTEMS: A TREATY IN ALL BUT NAME

Andrew Halkyard

     Abstract:     It came as no small surprise when it was announced in February 1998 that the Chinese mainland (“the Mainland”) and Hong Kong had agreed to enter into an arrangement for the avoidance of double taxation of income.  Although concerns of double taxation between the Mainland and Hong Kong tended to be more academic than practical, this arrangement helps establish a firm foundation for future co-operation by the Mainland and Hong Kong on trade and other economic matters.  From a Hong Kong taxation perspective, it is one of the most significant developments to have occurred for a very long time.  From a broader perspective, the Mainland has adopted a flexible and innovative approach to taxation issues related to Hong Kong.  A standard treaty template, based upon the OECD Model Double Taxation Convention, has been used to regulate jurisdiction to tax within different parts of the People’s Republic of China.  This augurs well for China’s effort to effectively implement the autonomy promised to Hong Kong under the challenging rubric of “one country, two systems.”

 

WATCHING THE WATCHDOG: CHINA’S STATE COMPENSATION LAW AS A REMEDY FOR PROCURATORIAL MISCONDUCT

Keith Hand

     Abstract:     In 1994, China enacted a comprehensive State Compensation Law (“SCL”).  The SCL provides individuals and legal entities with the right to compensation in a limited number of situations in which they are harmed by illegal government acts.  The purpose of the law is twofold:  (1) to guarantee the rights of individuals and legal entities to obtain compensation and (2) to encourage state officials to exercise their powers lawfully.  In theory, the SCL provides an important check on the conduct of procurators and other government officials.  China’s procurators serve dual roles as criminal prosecutors and as supervisors of the legal process.  As supervisors of the legal process, procurators are largely responsible for policing themselves and preventing procuratorial misconduct.  There are few external controls on procurators, and the controls that exist are weak and seldom applied in practice.  This Comment examines the issue of whether the SCL will provide an adequate citizen-based check on procuratorial power.  It argues that while the SCL should be considered a positive step towards promoting greater official accountability and protecting individual rights in China, limitations on the scope of the law, flaws in the procedures for state compensation, the limited liability of individual procurators for compensation expenses, and official resistance to the SCL’s implementation severely limit the utility of the law as a remedy for procuratorial and other official misconduct.

 

 

THE PROPOSED REVISIONS TO JAPAN’S JUVENILE LAW—IF PUNISHMENT IS THEIR ANSWER, THEY ARE ASKING THE WRONG QUESTION

Jessica Hardung

     Abstract:  The Juvenile Law in Japan turned fifty years old on January 1, 1999.  Japan enjoys one of the lowest overall crime rates of any industrialized nation, but its juvenile crime rate is on the rise.  The rise in juvenile crime has prompted Japanese legislators to propose changes to the Juvenile Law.  This Comment argues that the majority of the proposed revisions, which do not focus on rehabilitation, should not be adopted and that social controls already in place are sufficient to combat any increase in juvenile delinquency.  Japanese culture has unique characteristics that contribute to its low crime rate.  In the United States, the adoption of retributive juvenile justice laws has not stemmed increases in the juvenile crime rate.  Japan should not resort to the U.S. model of juvenile justice to solve the problem of juvenile crime.

 

THE JAPANESE FIREARM AND SWORD POSSESSION CONTROL LAW:  TRANSLATOR'S INTRODUCTION

Mark Allenman

     Abstract:     Japan’s Firearm and Sword Possession Control Law was amended in 1993 and again in 1995, partially in response to changing firearms confiscation demographics.  In the past, most firearms were confiscated from members of organized crime groups, and the Japanese viewed firearms largely as a danger related to organized crime.  However, confiscation statistics suggest that firearms are moving into the hands of the general population, increasing the risk firearms pose to public safety in Japan.  In response to this trend, Japan amended the Firearm and Sword Possession Control Law in 1993 and 1995 by adding add new crimes, more severe punishments, provisions on the mitigation of sentences for the surrender and submission of contraband, and provisions on new investigative techniques.