Showing papers in "National Taiwan University Law Review in 2011"

Reflections on the Rule of Law in China

Abstract: The conventional approach to legal reform in China is to stress the need for the judiciary to attain the professional competence and institutional autonomy to enforce legal doctrine. This essay argues that developing judicial capacity to handle political, as opposed to legal, conflict may be equally important to Chinese legal and political development. The article acknowledges the legitimacy of CCP oversight of the legal system but argues that the very omnipresence of the Party means that it is usually on all sides in instances of major social conflict. The article draws on examples from the United States and Japan to illustrate this possible role

Consolidation and Reform of Financial Market Regulation in Korea

Abstract: Korea undertook a reform of its financial regulations through the enactment of new legislation – the Financial Investment Services and Capital Markets Act, which became effective on February 4, 2009. The new legislation is intended to improve the regulation of Korean capital markets by consolidating various statutes which used to govern the financial industry by type and improving their regulation. It established a system which can regulate all financial investment products traded in the capital markets and introduced regulations classifying financial investment services, financial investment products and investors based on functions. The new legislation expanded the business scope of financial investment service companies and at the same time reinforced investor protection mechanisms. It improved the structures for maintaining the market’s integrity by reinforcing regulations against unlawful transactions. It also introduced new regulations on cross-border capital market transactions and business activities. Although some controversial issues remain in connection with the new concepts introduced in the legislation, it is expected to be a foundation for the development of the Korean capital markets.

Financial Mechanisms for Climate Change: Lessons from the Reform Experiences of the IMF

Abstract: The “Copenhagen Accord” issued after the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC), while not unanimously adopted, was nevertheless an important decision relating to further development of the climate change regime. In this twelve-paragraph document, there are seven paragraphs that touch upon issues relating to financial resources and financial mechanisms. Furthermore, COP 16 to the UNFCCC adopted the Cancun Agreements, which also lay down various significant provisions for financial mechanisms, including the newly created Green Climate Fund. This illustrates the importance of financial mechanisms in the adoption and implementation of policies related to climate change mitigation and adaptation. The design and effectiveness of such financial mechanisms—especially the role governance structure plays in ensuring the democratic outcome of producing fair and equitable resources generation and allocation processes—will determine whether any financial mechanism can achieve its goal of assisting developing countries to implement climate change mitigation and adaptation

Legal Interpretation and the Vietnamese Version of the Rule of Law

Abstract: This paper aims to present a picture of legal interpretation in Vietnam and its implications for the reform process. As Vietnam integrates itself fully into the global economy, the international community continually urges Vietnam to change its system to adhere to the rule of law. Although the definition of ‘rule of law’ is still subject to debate, it is widely agreed that a rule-of-law society is one in which law is transparent, coherent, consistent, and understandable. In these systems, legal interpretation is important in ensuring that law is applied equally to everyone. Efficient legal interpretation, in turn, requires certain institutional settings and principles. I will examine these issues in the context of the Vietnamese transitional legal system where law is not necessarily associated with enforceability and legal interpretation and explanation are still treated as processes supplementary to

Charting the Course for Shareholders' Recourse: Observations on the Malaysian Response

Abstract: This article aims to examine the nature and enforcement of members’ rights under the corporate law regime in Malaysian company law. First, the rights of Malaysian shareholders to bring an action on behalf of the company will be examined. The focal point in this regard is the common law derivative action. The new statutory derivative action introduced in 2007 by the Malaysian Companies (Amendment) Act 2007 will also be considered. This article will then discuss and comment on the law relating to a legal avenue available to shareholders to bring personal actions for the enforcement of their rights. The spotlight here will be turned on Malaysia’s “oppression” provision, namely section 181 of the Companies Act 1965. Finally, this article will discuss the availability of the commencement of a class action or representative action by members or shareholders in the sphere of company law. The discussion in this article will centre upon the viability and accessibility of the above-mentioned mechanisms and whether or not they promote adequate protection for the interests of companies’ members and shareholders in

The rule of law in the Republic of Korea

Abstract: Park,Eun-Young.March, 2011.The rule of law in the Republic of Korea,Article,[Taiwan],[Tapei]National Taiwan University,19

Regulating Market Manipulation through an Understanding of Price Creation

Abstract: Current rules on market manipulation ignore the existing and rapidly growing body of scholarship on how securities prices are formed in markets. These rules are primarily reactive, and depend on vague and difficult measures such as the “artificiality” of a resulting market price or the trader’s intention. Some trades, like matched and wash sales, have indeed been singled out since the 1930’s for special scrutiny, but this list has never been updated. Through even a cursory review of existing literature in financial economics and market microstructure, lawmakers and regulators would be able to know the times, the market conditions, and the types of securities that facilitate and give greatest incentive for trade-based market manipulation, as well as the manipulative techniques best adapted to each, specific situation. Rapid advance in the technological prowess of some institutional traders has lent urgency to the task of updating rules on market manipulation. The playing field between high-powered and retail traders has become so uneven that soon our original understanding of securities markets will be eclipsed. Lawmakers and regulators should take market manipulation seriously and develop presumptions triggered by behavior that is shown to display a very high probability of manipulative intent. This article presents the parameters along which such presumptions can be formulated. * Professor, Faculty of Law, The Chinese University of Hong Kong. E-mail: dcdonald@cuhk. edu.hk. I would like to thank Patricia Teixeira for discussions that led to the concept of this article. I would like to thank Larry Ribstein, Chuck Yablon, Ben Geva, Huang Hui, Eric Pan, Douglas Arner, Xi Chao, and Wang Wenyeu for their comments on earlier drafts. David Chan, while a JD student at CUHK, supported this article with excellent research. I also thank the CUHK Faculty of Law for providing the funds to undertake this research.

A Socio-Legal Analysis on the Regulations of Foreign Spouses in Taiwan

Abstract: This paper focuses on legal discourse to analyze how legal regulations have been altered to respond to the foreign spouses phenomenon. In particular, it employs a socio-legal analytical perspective to discuss how amending, executing, and manipulating the legal regulations on foreign spouses reflects an ideology of gender, patriarchy, social stability, and national security in Taiwan. The issue of the high rate of marriage with Mainland Chinese spouses involves unique complexities of nationality identity, terrain threats, and political-social climate changes between Taiwan and Mainland China. This paper explores how the intimacy regulation is different between Southeast Asian foreign spouses and Mainland Chinese spouses (with a primary focus on the former rather than the latter). It concludes by summarizing that, from a social perspective, cross-border marriages are promoted by multiple hierarchies (e.g., class, gender, culture, etc.) and are casting the female foreign spouse as an obedient wife, qualified mother, and dutiful daughter-in-law in order to profit the family/state. From a regulatory/legal perspective, the enforcement of various acts, rules, laws, and regulations may create a backlash originating from the nostalgia of patriarchy and stereotypical gender roles in marriage.