PBLJ is the second oldest law journal at UCLA and focuses on a diverse range of legal and policy issues in the Pacific Rim, looking to both the Asia-Pacific and the Americas. In the past, PBLJ has featured articles on topics as varied as intellectual property regimes, climate change and migration in the Pacific, corporate governance, and affordable housing policy in China.
Volume 36, Issue 2, 2019
Pacific Basin Law Journal
Table of Contents
Under China’s current Marriage Law amended and enacted in 2001, its post–divorce financial relief system comprises three disparate component parts. The principal part and the one analogous to the American concept of “alimony” or “spousal support” is the “post–divorce financial assistance system,” as authorized under Article 42. The other two parts, “economic compensation at divorce” and “divorce damage claims system,” as authorized under Article 40 and Article 46, respectively, complement the principal part. After a brief historical overview of China’s alimony legislations, this Article offers a doctrinal analysis of the two more straightforward components as embodied by Article 40 and Article 46. Then it delves into an in-depth textual criticism of Article 42, and its concomitant 1984 SPC’s Judicial Opinions and Article 27 of the 2001 SPC’s Judicial Interpretations, the three constituents of the entire corpus of China’s “alimony laws.” Through the lenses of California’s divorce laws, focusing on the current judicial interpretations and practices, the author candidly critiques the Chinese sui generis body of “alimony laws.” The author arrives at such significant findings: (1) The statutes and judicial interpretations are too vague to be of much practical guidance when judges decide issues such as the eligibility prerequisites for invoking the law and the criteria for rendering financial assistance; (2) The law is fraught with loopholes; (3) The law is obsolete and does not suit the current socioeconomic reality of China. The author observes that such vague, defective and obsolete laws leave too many key issues to the judges’ vagaries. The author makes concrete recommendations and suggests specific remedies to close the loopholes and fill the gaps in the current post–divorce financial assistance system. The author advances the theory that the absence of an elaborate, systematic set of alimony laws and procedural rules is the direct result of the Party-state’s overemphasis on mediation and a diehard feature of the rule of man, to the detriment of the rule of law. The author describes this trait as the corollary of the triumph of Confucianism over Legalism as manifested in contemporary China. The author marks out the stumbling blocks to reforming China’s current alimony laws and cautions that the eventual reification of the proposed rules and legal remedies will hinge upon the outcome of the rivalry between the synthesists’ views of rule of law and the thin theories of rule of law.
This article focuses on two of the earliest Chinese law students in the United States who deployed their legal knowledge and advocacy skills to fight against the Chinese Exclusion Act and its related laws in the early 1900s. Ho Yow, the fourth Chinese national to ever attend law school in the United States, performed this courageous task as Chinese consul to the United States. His fellow countryman Yeung Fong joined in this battle by conducting a full-fledged systematic study of the racist laws, becoming the first Chinese national who wrote a master’s thesis on this controversial topic.
Between Choice and Tradition: Rethinking Remedial Grace Periods and Unconstitutionality Management in a Comparative Light
Recent experiences of constitutional review in the common law world have received increasing attention in comparative constitutional law scholarship. Looking beyond the common law jurisdictions, this Article investigates the influence of variations on unconstitutionality management and changing constitutional politics on the functional mutation of remedial grace periods. Through a case study of Taiwan in light of the comparison of the civilian-continental vs. common law models of constitutional review, it argues that legal tradition and the court’s role vis-à-vis the political branch in the dynamics of constitutional politics jointly contribute to the multifunctional role of remedial grace periods in unconstitutionality management. As part of unconstitutionality management across constitutional jurisdictions, the granting of remedial grace periods is not simply the manifestation of judicial strategy. The argument unfolds in three main Parts. Part I first compares the use of remedial grace periods in constitutional review under the civilian-continental and the common law models. After drawing out the different paths toward unconstitutionality management in comparative constitutional review, Part II conducts a functional analysis of remedial grace periods in the case law of the Taiwan Constitutional Court (TCC). It is observed that the three forms of remedial grace periods—bridging, nudging, and hedging—as indicated in the TCC case law are informed by the conceptual framework of graduated unconstitutionality borrowed from the civilian-continental model. Part III further analyzes how remedial grace periods have been instrumental to the TCC’s realization of its institutional potential. In conclusion, the TCC’s continuing and frequent prescription for remedial grace periods indicates its default position in constitutional remedies, which is both informed by the civilian-continental model and shaped by its formative experience at the dawn of democratization.