The Centre for Asian Legal Studies (CALS) hosts cutting-edge research on the laws and legal institutions in Asia. At this venue you will find a variety of voices, from Allard School of Law faculty to members of the CALS community—students, alumni, visiting scholars, practitioners, and other Asia observers. We will highlight our research, our talks and other scholarly activities, as well as offer commentaries arising from our community’s engagement, in all modes, with Asian legal systems.
Recent Entries:
“Trans Rights in Japan” Written By: Takashi Shirouzu
In Japan, the issue of transgender rights is relatively new and there is limited discussion in legal cases and academia. As a crucial starting point, it is essential to note that Japan lacks a general body of human rights law, resulting in a lack of legal mechanisms to protect transgender individuals[1]. Consequently, navigating this issue feels akin to being in a maze where one is unsure of the perspective from which to approach it. However, as discussed in the following chapter, this area of law is gaining public recognition with recent notable cases in Japan revolving around transgender rights concerning gender change and washroom usage. The Supreme Court of Japan has ruled one of the conditions for sex registry change unconstitutional[2] and the refusal to allow a transgender woman to use washrooms on the same floor of the workplace illegal.[3] These judgments have drawn wide attention from both society and the academic community.
“Sexual Minorities in the Japanese Criminal Justice System” Written By: Hideki Oshita
The treatment of sexual minorities is a significant issue in contemporary Japan. Although demonstrating a relatively tolerant attitude towards homosexuality, and, save for a few periods, rejecting punishment for same-sex relationships[1], the mishandling of sexual minorities, particularly transgender individuals, is insidious in Japanese society due to the long-standing tradition of following an individual’s registered sex in situations where gender is relevant.
“Sexual Minorities and the Constitution in Asia*” Written By: Shigenori Matsui
Historically, most nations in the world assumed that a sex is binary: a person is either a male or female, and the distinction in sex[1] is biological and predetermined. These nations also assumed that everyone has heterosexual orientation. As a result, little concern for transgender or homosexual people (“sexual minorities”) existed.[2] They are the people who are often referred to, more generally, as LGBTQ people. [3]
“Sex, Sexuality and the Constitution in Japan: Most Recent Updates” Written By: Shigenori Matsui
Barely one year has passed since I sent my final draft of Sex, Sexuality and the Constitution (UBC Press 2023) to the printer,[1] but there have been several significant changes during this very short period of time. These changes do not affect my overall argument in my book: there is an urgent need to consider all legal issues regarding sex, sexuality, and family as matters of constitutional law and it is most appropriate to view all these constitutional issues as an issue of the right to sexual autonomy. And, although I focused on Japan to examine these issues, they do not affect my argument that the lessons we can learn from Japan should be seriously considered in other countries as well.
“Vaccination Compensation System in Japan” Written By: Shigenori Matsui
COVID-19 vaccination drive is ramping up everywhere. It is proven that the vaccination is the most effective measure to prevent the spread of infectious virus. In order to curtail the number of infections in the population, it is vital to vaccinate large majority of the public. However, as with any vaccinations, there is a risk of possible side effects, making it impossible to prevent a small percentage of people who receive the vaccination from developing side-effects and in rare cases, even dying. In order to encourage people to get vaccinated, it is essential to alleviate concerns for any ramifications from serious side-effects. Japan has already established the government compensation system for the possible financial ramification to be caused by side effects from the vaccination.
“Student Research: Evaluating Policy Responses to COVID-19”
By mid-March, 2020, many Canadians had come to recognize the COVID-19 pandemic as a once-in-a-lifetime crisis that could cause permanent changes to their lives. Just as online classes immediately began to transform the experience of legal education, academics also shifted their attention to the enormity of the challenges brought by COVID. The Centre for Asian Legal Studies organized a COVID-19 Roundtable on March 5. In the ensuing months, faculty members and students together pursued multiple strands of research on COVID’s impact on law and governance in Asia.
“Optimize Tax Administration, President Xi Says” Written By: Wei Cui
On December 30, 2020, Chinese President Xi Jinping convened a meeting of one of the most important decision-making bodies currently in the Chinese Communist Party: the Central Committee for Comprehensively Deepening Reforms. Xi gave a strongly ideological speech: in summarizing a report that offered a comprehensive evaluation of the Party’s measures for “deepening comprehensive reforms” since 2013, he claimed “historical” and “revolutionary” accomplishments for his leadership. The meeting also approved a slate of new policy directives, covering many high-salience topics ranging from strengthening Party leadership in state-owned enterprises to building a green, low-carbon economy. Among the new directives approved was a document named “Opinions regarding Further Optimizing Tax Enforcement Methods.” This new edict about tax administration—a topic that normally does not grab media attention—was immediately lauded as the most newsworthy item in Chinese taxation in 2020.
The tax that citizens in many modern economies are most familiar with is probably the personal income tax (PIT). The salience of the PIT, compared to other major taxes such as the corporate income tax and value added tax, is often, but not always, matched by the PIT’s significance as a source of revenue. In Canada, PIT revenue represented 49% of total federal government revenues in 2017-2018. In many developing countries, however, the PIT is a much less important revenue source. There are two standard explanations for this. First, the PIT, since its adoption in industrialized countries in the early 20th century, tends to generate the most revenue from the taxation of wage income. That is, most PIT revenue comes from employers’ withholding of the tax from paychecks written to employees. In many developing countries, however, the formal employment sector is small, and therefore the tax base of wages of formally employed workers may be too small to sustain the PIT. Second, it is often believed that the PIT must possess certain features—e.g. there must be progressive tax rates, certain types of deductions must be allowed, etc.—that make the tax administratively complex. Low administrative capacities in developing countries further handicap them in raising revenue through the PIT.
“Improving Taxpayer Return Filing through Email Reminders” Written By: Wei Cui
My post last week described a recent study of how information-sharing among South African government agencies succeeded to improve taxpayer registration. Such information-sharing involves minimal costs, and when, as in the South African case, no additional action on the part of taxpayers is required, mechanically raises the level of taxpayer registration. This technique for bringing more firms into the “tax net” is well-known and adopted in many countries. Indeed, one might ask why the technique is not used more often. Another interesting—and related—question is whether picking such low-hanging fruits actually gains anything for the government. If it does not (the South African registration success did not raise any significant revenue, at least as far as the corporate income tax is concerned), we have a potential explanation for its non-adoption.
“Intra-Governmental Data Sharing to Enhance Taxpayer Registration” Written By: Wei Cui
Earlier this month, in a widely-followed online public finance seminar series, the German economist Nadine Riedel presented a paper titled “What You Do (and What You Don’t) Get When Expanding the Net – Evidence from Forced Taxpayer Registrations in South Africa”. Notwithstanding the specific setting of Professor Riedel’s study, the topic is of wide relevance to low- and middle-income countries: how can the government locate and register more operating businesses for purposes of taxation—and what can the government expect when it succeeds in doing so?
“How to promote rule of law in China” Written by: Jiang Wan, translated by Yan Wang
(The following is a translation of a shorten version of Professor Wan’s longer blog entry in Chinese.)
In December 2016, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council jointly issued the Regulations on the Principal Officials in Charge of the Party and the Government to Fulfill the Responsibility to Promote Rule of Law (hereinafter referred to as the Regulations). The Regulations set out the main responsibilities of the principal officials in charge of the party committee and the government in promoting rule of law, and require that the principal officials should include their performance in promoting rule of law in their year-end reports. The higher-level party committee should consider lower officials’ performance during evaluation. If a principal official fails to fulfill their duties, they shall be held accountable in accordance with the relevant Party regulations such as the CCP Accountability Regulations, as well as national laws and regulations.
“Litigating the Party’s Internal Rules” Written By: Yan Wang
A 2016 document jointly issued by the Chinese Communist Party (CCP) and China’s central government put principal government and party officials in the drivers’ seat for the promotion of rule of law (法治) in the country. The document set out these officials’ obligations to ensure the country’s rule of law system and possible consequences if the officials fail to fulfill their duties. A few attempts to invoke the document in lawsuits that challenge administrative decisions in China, however, have been unsuccessful.
“Rule of Law and Performance Metrics (I)” Written By: Wan Jiang
万江: 在中国如何推动法治建设:
兼评《党政主要负责人履行推进法治建设第一责任人职责规定》？
2016 年12月底，中共中央办公厅和国务院办公厅联合印发了《党政主要负责人履行推进法治建设第一责任人职责规定》（以下简称《规定》）。《规定》第五条、第六条分别明确了党委主要负责人、政府主要负责人在推进法治建设中应当履行的主要职责，包括将法治建设纳入地区发展总体规划和年度工作计划、严格依法依规决策、推进行政执法责任制落实、督促领导班子其他成员和政府部门主要负责人依法行政、推动落实“谁执法谁普法”责任等。《规定》第七条至第九条进一步指出，党政主要负责人应当将履行推进法治建设第一责任人职责情况列入年终述职内容，上级党委应当将下级党政主要负责人履行推进法治建设第一责任人职责情况纳入政绩考核指标体系，党政主要负责人不履行或者不正确履行推进法治建设第一责任人职责的应当依照《中国共产党问责条例》等有关党内法规和国家法律法规予以问责。
“Rule of Law and Performance Metrics (II)” Written By: Wan Jiang
万江: 在中国如何推动法治建设:
兼评《党政主要负责人履行推进法治建设第一责任人职责规定》？
三、双重治理模式之运作
由于指标考核和法治建设各自存在着优势与短板，且能够相互补充，因此《规定》试图通过强化党政领导在法治建设中的第一责任人职责具有坚实的理论基础。这也使得我国目前有关地方政府的治理机制，既有传统的指标式治理，又有近几年得以强化的法律治理，逐渐形成了治理地方政府的双重机制。
（一）指标考核与法治建设的几种关系
1.互补的指标考核与法治建设
指标考核和法治建设都可以规范地方政府行为，指标考核可以弥补依法行政的激励不足，而依法行政则可以强化指标考核的程序合法性。若能发挥各自的治理优势，可以更好地规范地方行政。
“以身传道的柯恩教授二三事 Jerry Cohen and Preaching by Example” Written By:程洁 (Jie Cheng)
我与柯恩教授认识已经超过20年了。研究生时代曾听陈小平老师讲柯恩帮助六四学运人物的故事。入职清华后不久，我就见到了柯恩，听他回顾70年代与周恩来、邓小平会面的经历以及中国早期社会和法制状况，感觉像在阅读一本活的历史书。但我们真正有交集，源于对法律援助和政府信息公开的共同旨趣。
I have known Professor Jerome Cohen for more than 20 years. When I was in graduate school, Professor Chen Xiaoping told me the story of Jerry helping the June 4th dissidents. Shortly after joining Tsinghua University, I got to meet Jerry in person. When he recounted his experience of meeting with Zhou Enlai and Deng Xiaoping in the 1970s and the early social and legal conditions in China, it was like reading a living history book. Later our paths crossed because of our common interest in legal aid and government information disclosure.
Since the COVID-19 epidemic broke out in Wuhan in January 2020, sub-national People’s Congresses (PCs) in many Chinese provinces and cities have announced policies regarding the control and prevention of the disease and economic recovery. Many of the policy documents promulgated have the same function and effect as local statutes (difang fagui), and have been pronounced as having the effect of law. But they often came with the title of “decisions” or “resolutions” (jueding). Both in name and in the procedure of adoption, this particular parliamentary instrument is to some extent distinguishable from the adoption of local statutes under the Law on Legislation. In previous decades, it was seldom used independently in providing for individual’s legal rights and obligations.
“Lawmaking in the Time of the Pandemic” Written by Wei Cui
On February 5, 2020, two weeks into the national lockdown to stop the spread of the novel coronavirus epidemic that had broken out in Wuhan, President Xi Jinping convened a meeting in Beijing of the Comprehensively Governing the Country by Law Committee (CGCLC) of the Central Committee of the Chinese Communist Party (CCP). The publicized agenda of the meeting contained disparate items, ranging from reforming judicial accountability, further entrenching the rule of law in China’s countryside, to using rule of law to enhance the business environment in Shanghai. The first item on the meeting agenda, however, was the approval of a CGCLC Opinion with the lengthy title, “CGCLC Opinion regarding Preventing and Controlling COVID-19 by Law, and Tangibly Protecting the Lives, Health and Safety of the People” (《中央全面依法治国委员会关于依法防控新型冠状病毒感染肺炎疫情、切实保障人民群众生命健康安全的意见》). This Opinion was not made public and presumably, like many other CCP documents, was intended to be read only by the relevant members of the high Party ranks. At least according to the official summary of the meeting offered by the Xinhua News Agency, Xi Jinping only argued that the government response to COVID-19 should make good use of law: he gave particular emphasis to strictly enforcing existing law to preserve social order, without explaining why the law was particularly relevant at this moment in an evolving crisis.
“China’s in the race to build a COVID-19 vaccine” Written by Michael Wong
The COVID-19 pandemic has thus far spread to all six inhabited continents, infected at least 5.4 million people and caused at least 340,000 deaths. Governments the world over have, to various degrees, closed their borders and shut down their economies. Countries that have successfully controlled the spread of the virus, such as China and South Korea, are weary of a second or third wave of new infections. The 1918 Influenza Pandemic has given a glimpse of the potential devastation that can occur with a virulent transmissive disease and an unvaccinated populace. The race to create an effective vaccine has become one of the most important priorities for the world’s advanced economies—and for China.
Collective wage consultation, similar to but different from collective bargaining, is a strategy in China for preventing and resolving collective labour disputes relevant to remuneration. Under this process, employers and a labour union, or representatives of employees, consult about labour compensation, working hours, rest days and leaves, labour safety and hygiene, vocational training, insurance, welfare benefits, and conclude a collective contract draft, which must then be approved by the workers’ congress or a general meeting of workers of the enterprise, signed by the two of the consultation representatives, and confirmed by local government.
“Why is China’s Underground Economy So Small?
A rarely discussed aspect of China’s economic growth is the apparent small size of its underground economy. Until the last decade, at least, there was little controversy that China was a developing country. Even now, China belongs at best to the world’s cohort of “middle income” countries. Yet some studies show that as early as in the 1990s, China enjoyed a small underground economy comparable to much more developed countries.
“Take-Up of a Corporate Tax Cut among Vietnamese Firms”
Since 2010, an ever-increasing population of Chinese firms has come to enjoy a 10% or even 5% preferential corporate income tax rate. In an earlier blog, I discussed some legal nuances that explain how these rate cuts for “small and micro-profit enterprises” became available, even though the statutory rates under the Enterprise Income Tax Law remain unchanged. It turns out that the Vietnamese government adopted some similar, temporary corporate income tax rate cuts in 2009 and 2011-12 (initially, also in response to the Global Financial Crisis). For smaller Vietnamese firms, the tax rate was reduced from 25% to 17.5%. In a paperpublished in the National Tax Journal last year, Professor Anh Pham from George Mason University presented interesting evidence that about half of Vietnamese firms failed to claim the reduced tax rate during the relevant period.
Last year, two economists in China—Professor FAN Ziying from Shanghai University of Finance and Economics and Professor LIU Yu from Fudan—posted an interesting paper on SSRN. The paper studies the impact of a 2014 tax incentive on investment decisions by Chinese firms. Unlike many other studies of this kind (e.g. the analysis of firm investment response to VAT reform I blogged about here), Fan and Liu explicitly focus on how tax administration and compliance affect firm response to investment incentives. They offer preliminary empirical evidence for an idea that many of us have intuited.
“Training Session for Tax and Public Finance Officials from India”
On March 3, 2020, Professor Wei Cui (Director of CALS) gave a one-hour lecture on the digital services tax (DST) to national and subnational officials from India’s indirect tax and customs administration. The training session was organized by India’s National Academy of Customs, Indirect Taxes & Narcotics (NACIN) and the Goldman School of Public Policy at UC Berkeley.
“COVID-19 Roundtable at Allard Law” written by Christina Ma
At a recent roundtable discussion at the Centre for Asian Legal Studies, three Allard law professors examined the Chinese and Japanese response to COVID-19, and the implication of the virus on international trade law.
“Entrepreneurial Reluctance: Academic Talent and Firm Creation in China” written by Xin Mu
Much economic research suggests that the talent of entrepreneurs has consequences both for the productivity of individual firms at the micro-level and for macro-economic growth. However, according to Prof. Ruixue Jia, School of Policy and Strategy, University of California, San Diego, academic talents are less likely to create firms in China.
“Intended and Unintended Consequences of Transparency Reforms in China” written by Christina Ma
In a recent talk for the Centre for Asian Legal Studies, Professor Sarah Biddulph explored the intended and unintended consequences of transparency reforms on government administration in China. Her new book, Good Governance in Economic Development: International Norms and Chinese Perspectives, is co-edited with UBC Law Professor Ljiljana Biukovic.
Patriarchy and Paradigms in the Study of Chinese Law (Part II) Written by: Jie Cheng
Some neo-Confucian scholars claim the Chinese tradition displays characteristics of meritocracy, as the government selects the virtuous and capable through imperial examinations, securing talents for government positions. This is another effective flat organizational structure besides democracy. Indeed, the imperial examination system is a significant institution for changing one’s class status in traditional Chinese society. But its most important function is to make status no longer depend on kinship. It does not eliminate differences in status. The process of the imperial examination even created a new quasi-kinship relationship: teacher-student friendship was generated between candidates and examiners, and between candidates and emperors. As the adage goes: even if someone is your teacher for only one day, you should regard him as your father for the rest of your life.
一些当代新儒家论者认为中国传统具有贤人政治的特点，通过科举制度选贤与能，为国家输送人才，是民主制之外另一种平面化的有效治理方式。科举制确实是中国传统社会中改变身份的重要制度安排。但其最重要的功能是使身份不再依赖于血缘关系，而非消除了身份等差。事实上，科举制的过程产生了新的拟亲属关系：考生与考官之间、考生与皇帝之间有“师生之谊”，而“一日为师终身为父”。
Patriarchy and Paradigms in the Study of Chinese Law (Part I)
“Litigation-free” is a significant feature of the Chinese legal system. Scholars of Chinese legal history recognize it as a manifestation of the Confucianization of law in China. Scholars of contemporary legal systems also note that China’s legal system favors mediation and petitioning, but takes a skeptical or even negative attitude toward judicial independence. However, though legal historians classify the absence of litigation as a part of the Confucian tradition, there are different explanations of this absence in contemporary times. A typical view attributes it to the lacking of authority, independence, and professionalism of the judiciary under the Chinese Party-State or Authoritarianism. Another typical view characterizes it as an indigenous cultural heritage and resource, which must be integrated in the modernization of Chinese law. Although the assessments diverge, these two standpoints tend to view “freedom from litigation” as traceable to China’s unique tradition, and hope to achieve the modernization of the Chinese legal system through either transforming or utilizing this feature.
“非讼”是中国法律制度的重要特征。研究中国法律史的学者认为“非讼”是中国法律儒家化的表现之一；研究当代法律制度的学者也往往注意到中国强调调解和信访而对司法独立持怀疑甚至否定态度的问题。不过，虽然法史研究通常将“非讼”归为儒家传统，对当代“非讼”现象则有不同的认识。
Follow