This article discusses the concepts of public order and good morals in the Chinese Civil Code. Under Article 153 of the Civil Code, a civil juristic act is rendered void if it violates these concepts. This article examines their substance, functions, and practical significance in determining the invalidity of civil juristic acts in Chinese civil law. Public order refers to interests relating to national security and matters fundamental to the social public order, and good morals refers to virtuous customs representing social morality, family ethics, and personal dignity. It is argued that the nuances of the concepts are purposeful, but they must be wielded by the judiciary with objectivity and precision. It shows, comparatively, that in Chinese jurisprudence, the concepts of public order and good morals are intended to be applied flexibly and are widely accepted as capable of addressing areas where the law remains underdeveloped. Chinese courts are therefore tasked with achieving justice for litigants in each case and social justice at the same time without compromising private autonomy. In the final analysis, these concepts can be viewed as part of a broader commitment to ensuring the law operates in line with social changes and continues to garner public support for the judicial system.

This article problematises traditionalist thinking in constitutional adjudication in relation to the rights of same-sex couples, especially those rights that are connected to family life. It identifies two approaches, represented respectively by the case law of the Italian Constitutional Court (ItCC) and the Court of Final Appeal (CFA) of the Hong Kong SAR of the People’s Republic of China. The ItCC has expressly stated that preserving traditional family forms is a reasonable objective per se for the legislature to pursue. The CFA, on the other hand, has challenged this approach to traditionalist thinking in relation to same-sex unions. Despite some contradictory signals within its case law, the CFA has stated that justifying differential treatment based on sexual orientation with reference to tradition is circular reasoning. Drawing on historical, anthropological, and philosophical sources, this article argues that invoking the preservation of tradition, despite its rhetorical force, is empirically and conceptually criticisable and, ultimately, unpersuasive.

This article examines Taiwan’s approach of using government-issued contractual templates to regulate unfair terms in standard forms for consumer transactions. This article studies user agreements from a sample of two different types of electronic payment service providers (PSPs) in Taiwan, one operating under a more stringent regulatory framework and the other subject to lighter regulation. This article finds that PSPs largely adhere to the templates even when they are not obliged to do so, indicating the effectiveness of the template approach for PSPs. However, PSPs often adopt or adapt template terms in ways that maximise flexibility. This is in line with the behavioural assumption that businesses modify template terms that do not meet their business interests. Moreover, where government-issued templates are widely adopted by firms in an industry, templates begin to function like regulatory rules. In these cases, greater transparency in the creation of contractual templates is required to legitimise their role in regulating unfair terms in consumer contracts.

Since the early 1980s, the Supreme Court of India has recognised a wide catalogue of unenumerated rights as functional extensions of the right to life stipulated in Article 21 of the Constitution of India, including a right to shelter. For the most part, the right has meant unenforceable state duties and access to Francesco administrative justice under Article 32 of the Constitution, in ways that substantively deviate from the standards envisaged under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, and which find a paradigmatic example of constitutionalisation in Section 26 of the Constitution of South Africa. This relatively uncontested understanding of the right is, however, complicated by a line of High Court decisions, most notably Sudama Singh and Ajay Maken, which heavily rely on international human rights standards and South African constitutional jurisprudence to expand the procedural guarantees afforded in forced evictions. Far from being a general trend, this interpretative approach has the merit of exposing key deficiencies in the traditional right to shelter approach and creatively counterweighing the otherwise constitutionally pre-eminent unconditional prohibition of encroachments on public land.

The global proliferation of Chinese investments has raised national security concerns among many host States. Western economies such as the United States and Australia have strengthened their foreign investment screening (FIS) regimes partially in response to these concerns. Korea and Japan, as representative East Asian economies, have also joined the trend of strengthening FIS regimes to manage security risks associated with foreign investments. This article investigates whether national security has also emerged as a focal point of confrontation between developed East Asian countries and China in international investment landscape. It investigates China’s legal concept of national security and its growing importance in the country’s foreign investment policy. It then examines the FIS regimes in Korea and Japan as well as their practical operations in relation to Chinese investments, with a focus on how national security concerns have shaped their approaches to Chinese investments. This article argues that a national security-focused confrontation has emerged between developed East Asian countries and China in the international investment landscape as a result of their shared national security concerns. Korea and Japan should avoid politicising their FIS regimes in order to prevent potential violations of international investment law and contribute to East Asian economic harmony.

This article investigates the law of public consultation in Hong Kong administrative law. The Hong Kong cases in this area have consistently followed, without question, the corresponding English authorities, and seem to have simply assumed the appropriacy of this approach. But given that it seems open to academic argument whether the Hong Kong legal system shares the same liberal democratic political theory which the English legal system endorses – and given that the English law of public consultation is commonly regarded as, inter alia, pursuing a liberal democracy-based rationale – two questions arise: (i) what is, or what are, the underlying rationale(s) for the Hong Kong law of public consultation; and (ii) to what extent is it appropriate for the Hong Kong courts to adopt the English case law on public consultation? This article contends that even assuming the Hong Kong legal system is not underpinned by a liberal democratic political theory, (i) the Hong Kong law of public consultation is underpinned by the informational rationale and a specific strand of the respect rationale; and (ii) English case law on public consultation can be implemented into Hong Kong law, insofar as its reasoning can be completed without affirming a liberal democratic premise.

The dynamics surrounding the legislative process of the Indonesian Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana, KUHAP) from 1979 to 1981 were shaped by a clash between two opposing ideologies. On one side stood proponents of a rights-based approach, advocating for legal protections for the accused; on the other, supporters of an authoritarian approach emphasised the primacy of state authority in maintaining security and public order. In the end, Indonesian lawmakers were able to strike a balance by establishing several procedural safeguards that purported to protect the rights of the accused. This article offers a detailed account and analysis of this debate, illuminating how resistance and compromise emerged from the struggle. Drawing on these historical insights, the article explores the potential for reform in the contemporary Indonesian legal and political landscape, highlighting current challenges. The main dataset for this article was collected from official records of the meetings that took place during the legislative process of the KUHAP, as well as public opinion at the time. Although this debate took place more than four decades ago, revisiting the historical context of the KUHAP remains crucial to understanding its ongoing relevance and potential future for reform.

In recent times, Malaysian courts have resorted to a ritual incantation of unconscionability and the notion of a remedial constructive trust to justify a declaration of a constructive trust. This methodology is unhelpful for approaching constructive trusts and has led the law to develop in an unprincipled and unpredictable fashion. Our central thesis is that the key Malaysian decisions could have been decided on the basis of pre-existing legal principles upon which English and Commonwealth courts have declared a constructive trust. We argue that future courts ought to realign their methodology with the orthodox tradition of incremental development of the law in this area instead of resorting to broad notions of unconscionability and the remedial constructive trust.

In Hong Kong, the basic joint enterprise principle is recognised as an independent basis for attributing criminal liability. Although the principle has been recognised by the highest courts of the United Kingdom, Australia, and Hong Kong at different times, this article suggests that it does not have a historical foundation in common law. This article further argues that the basic joint enterprise principle (i) has no practical utility as it completely overlaps with traditional accessorial liability and the inchoate offence of conspiracy; (ii) necessarily requires the court to engage in circular reasoning; (iii) is unable to deal with situations of evidential uncertainty; and (iv) unjustifiably disrupts the principal-accessory distinction under common law. It is therefore recommended that the basic joint enterprise principle be abolished.

Countries across Asia have attempted to expand the involvement of fathers in childcare, motivated by declining birth rates, growing elderly populations, notable gender inequality gaps, and the demand of fathers for paid leave. This article assesses the efforts of twenty-one Asian nations to achieve a more equal distribution of the responsibility for child-rearing by comparing legal entitlements to paid maternity leave, paternity leave, and parental leave. Twenty-one jurisdictions are classified according to three models. Model A is a ‘gender equality’ model where non-transferable paid leave is provided in more equal share to parents, with an additional post-birth period exclusively for birth mothers. Model B is a ‘quota for fathers’ approach where a number of days or weeks are provided in amounts that fall far short of the amount of paid leave exclusively offered to mothers. Model C captures countries that offer no legal entitlements for paid leave for fathers. The data reveals the extent to which Asia lags behind global good practice in the provision of leave to different-sex and same-sex parents, with regional laws reflecting the view that caregiving primarily or exclusively falls upon women. Generous, paid and non-transferable leave for fathers is needed to increase leave-taking.