Legal Doctrine and Judicial Review of Eminent Domain in China

2021 ◽  
pp. 1-34
Author(s):  
Wenzheng Mao ◽  
Shitong Qiao
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
Political Institutions ◽  
Local Governments ◽  
Due Process ◽  
Eminent Domain ◽  
Systematic Investigation ◽  
Legal Doctrine ◽  
Authoritarian State ◽  
Just Compensation

Which of the three legal doctrines of public use, just compensation, and due process is the most effective in constraining abuses of eminent domain power? This article addresses this question for the first time and presents the first-ever systematic investigation of the judicial review of eminent domain in China. Our empirical study reveals that Chinese courts focus on eminent domain procedures while rarely supporting claims based on public interest or just compensation. Procedural rules are determinate and therefore easier to enforce than substantial standards of public interest and just compensation. Chinese courts also choose to focus on eminent domain procedures to confine their own judicial review power for the purpose of self-preservation in an authoritarian state that empowers the courts to monitor and control local governments but does not want them to become too powerful. The study calls for a “due process revolution” in eminent domain law and introduces the “judicial politics of legal doctrine” approach to the study of Chinese law, an approach that takes both political institutions and legal doctrines seriously.

scholarly journals Discricionariedade e controle na tutela do patrimônio histórico e cultural: reserva da administração na escolha entre interesses públicos concorrentes e os limites da intervenção dos poderes judiciário e legislativo

2016 ◽  
Vol 1 (2) ◽  
Author(s):  
Patrícia Baptista Ferreira
Keyword(s):  
Public Administration ◽  
Public Interest ◽  
Judicial Review ◽  
Due Process ◽  
Primary Role ◽  
Administrative Discretion ◽  
Public And Private ◽  
The Public ◽  
National Heritage ◽  
Artistic Heritage

<p><strong>DISCRICIONARIEDADE E CONTROLE NA TUTELA DO PATRIMÔNIO HISTÓRICO E CULTURAL: RESERVA DA ADMINISTRAÇÃO NA ESCOLHA ENTRE INTERESSES PÚBLICOS CONCORRENTES E OS LIMITES DA INTERVENÇÃO DOS PODERES JUDICIÁRIO E LEGISLATIVO </strong></p><p><strong>Resumo:</strong> A proteção constitucional do patrimônio histórico e cultural como interesse difuso incrementou o contencioso sobre o tema. A decisão de preservar, ou não, um bem e a escolha do instrumento adequado para isso situam-se, porém, na esfera de discricionariedade do Executivo. O Judiciário, portanto, deve adotar postura deferente aos juízos de mérito da Administração, competindo-lhe zelar pela observância do devido processo legal. O Legislativo, por sua vez, tem papel restrito ao exercício da competência normativa.</p><p><strong>Palavras-chaves:</strong> Discricionariedade administrativa, patrimônio histórico, controle judicial, controle legislativo, tombamento, reserva da administração, devido processo legal, interesse público, responsabilidade.</p><p><strong>ADMINISTRATIVE DISCRETION AND JUDICIAL REVIEW REGARDING THE PROTECTION OF NATIONAL HERITAGE: THE PUBLIC ADMINISTRATION PRIMARY ROLE TO CHOOSE AMONG SEVERAL COMPETING PUBLIC INTEREST AND THE LIMITS OF JUDICIAL AND LEGISLATIVE INTERVENTION ON THIS SUBJECT</strong></p><p><strong>Abstract:</strong> Brazil´s 1988 Constitution qualifies national historic and artistic heritage as a diffuse interest worthy of protection of Public Administration. Since then, judicial disputes regarding this subject have significantly increased. The decisions about whether and how to protect a historical site belong to the administrative sphere of discretion. Thus, judicial review should defer to administrative decisions, unless the due process clause rests violated. Legislative role on the subject is limited on rulemaking.</p><p><strong>Keywords:</strong> Administrative discretion, national historical and artistic heritage, protection of historical and artistic sites, judicial review, legislative review, due process, public interest, public and private accountability.</p><p><strong>Data da submissão:</strong> 08/11/2016                   <strong>Data da aprovação:</strong> 08/12/2016</p>

Traditional and Customary Law: Adat

2018 ◽  
Author(s):  
Simon Butt ◽  
Tim Lindsey
Keyword(s):  
Judicial Review ◽  
Rural Areas ◽  
Small Proportion ◽  
Local Governments ◽  
The State ◽  
Customary Law ◽  
Constitutional Court ◽  
The Past ◽  
Statutory Protection ◽  
Traditional Communities

Many Indonesians—primarily those living in rural areas—still follow customary law (adat). The precise rules and processes of that adat differ significantly from place to place, even within short distances. This chapter shows that for many decades, adat has been subservient to national law. State-made law overrode it, leaving it applicable only in a very small proportion of cases where no national law applied, where judges could apply it as ‘living law’. Even in these cases, many judges ignored adat or distorted it when deciding cases. The 1945 Constitution was amended in 2000 to require the state to formally recognize and respect customary law, as practised in traditional communities. The Constitutional Court has given effect to this in various judicial review cases, as have some statutes enacted in the past decade or so. However, this constitutional and statutory ‘protection’ has been impeded in practice by requirements for traditional communities to be formally ‘recognized’ by their local governments, many of whom have been unresponsive to calls for recognition.

Bargaining, Networks, and Management of Municipal Development Subsidies

2011 ◽  
Vol 42 (4) ◽  
pp. 481-497 ◽  
Author(s):  
Hyunsang Ha ◽  
Richard C. Feiock
Keyword(s):  
Economic Development ◽  
Political Institutions ◽  
Local Governments ◽  
Bargaining Power ◽  
Impact Analysis ◽  
Cost Benefit Analysis ◽  
Cost Benefit ◽  
Organizational Networks ◽  
Control Mechanisms ◽  
Fiscal Impact

This article investigates why cities use fiscal analyses such as cost–benefit analysis and/or fiscal impact analysis to manage offers of economic development incentives to business. We advance an approach to understanding economic development subsidies and control mechanisms that integrate political bargaining and network theories. Municipal bargaining power, institutional incentives, and organizational networks are hypothesized to influence development subsidy decisions. The results confirm that local governments’ bargaining power and political institutions influence the degree to which cities use fiscal analyses. In addition, public/private organizational networks that bridge public and private sectors by linking quasigovernmental organizations and local governments increase information and credibility thus leading to greater use of fiscal analyses.

The Making of a Revolution in Tunisia

2011 ◽  
Vol 3 (1-2) ◽  
pp. 68-83 ◽  
Author(s):  
Laryssa Chomiak
Keyword(s):  
North Africa ◽  
Political Institutions ◽  
Political Repression ◽  
Political Liberalization ◽  
Political Activities ◽  
Authoritarian State ◽  
Short And Long Term ◽  
The Subject ◽  
Tunisian Revolution

In their search for explanations for the so-called Tunisian paradox under Ben Ali –a country with comparatively high levels of socio-economic development, yet plagued by the absence of a civil society that could push for political liberalization–analysts primarily investigated the gradual co-optation of political institutions and actors. As research and analytical agendas were consumed by the robustness of Ben Ali’s authoritarian state, little attention was paid to the development of informal and extra-institutional political activities that existed even under deepening political repression. In hindsight, many of these informal activities clearly contributed to the December 2010-January 2011 nation-wide campaign, which eventually led to the Arab World’s fi rst bottom-up revolution ousting an unpopular and illegitimate ruler. Th is article will engage two stories about the Tunisian Revolution that later inspired protests and contentious activities across the Middle East and North Africa. First, it will tell a back-story of contentious activities preceding the January 2011 events that surprised observers, scholars and analysts–even those familiar with the Tunisian case. Second, this article will discuss some of most pressing political dynamics that have emerged in the post-revolutionary (and pre-October 2011 election) environment. The concluding section will subsequently identify avenues for short and long-term research on the subject of contestation, resistance, and the construction of a new political order.

Investor-State dispute settlement (ISDS) cases and India: affronting regulatory autonomy or indicting capricious state behaviour?

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Public Interest ◽  
Dispute Settlement ◽  
Due Process ◽  
International Investment ◽  
Public Power ◽  
Foreign Investors ◽  
Content Type ◽  
International Investment Law ◽  
Global Context ◽  
State Behaviour

Purpose The dominant narrative in the investor-State dispute settlement (ISDS) system is that it enables powerful corporations to encroach upon the regulatory power of developing countries aimed at pursuing compelling public interest objectives. The example of Phillip Morris, the tobacco giant, suing Uruguay’s public health measures is cited as the most significant example to prove this thesis. The other side of the story that States abuse their public power to undermine the protected rights of foreign investors does not get much attention. Design/methodology/approach This paper reviews all the ISDS cases that India has lost to ascertain the reason why these claims were brought against India in the first place. The approach of the paper is to study these ISDS cases to find out whether these cases arose due to abuse of the State’s public power or affronted India’s regulatory autonomy. Findings Against this global context, this paper studies the ISDS claims brought against India, one of the highest respondent-State in ISDS, to show that they arose due to India’s capricious behaviour. Analysis of these cases reveals that India acted in bad faith and abused its public power by either amending laws retroactively or by scrapping licences without following due process or going back on specific and written assurances that induced investors to invest. In none of these cases, the foreign investors challenged India’s regulatory measures aimed at advancing the genuine public interest. The absence of a “Phillip Morris moment” in India’s ISDS story is a stark reminder that one should give due weight to the equally compelling narrative that ISDS claims are also a result of abuse of public power by States. Originality/value The originality value of this paper arises from the fact that this is the first comprehensive study of ISDS cases brought against India and provides full documentation within the larger global context of rising ISDS cases. The paper contributes to the debate on international investment law by showing that in the case of India most of the ISDS cases brought were due to India abusing its public power and was not an affront on India’s regulatory autonomy.

The rights of the defendant and public interest in proving insanity under the law of New York

2021 ◽  
Vol 30 (3) ◽  
pp. 108-124
Author(s):  
Aleksey Grin'ko
Keyword(s):  
New York ◽  
Law Enforcement ◽  
Public Interest ◽  
Due Process ◽  
Burden Of Proof ◽  
Public And Private ◽  
Whole Process ◽  
History Of ◽  
The Law ◽  
Legislative Changes

Allocation of the burden of proof is a key issue of criminal procedure that is affected by multiple legal and social factors. Under due process principles, the defendant’s right to a fair and impartial trial is deemed to be the epicenter of the whole structure. However, efficient law enforcement is a prominent public interest that must be considered. This article explores the correlation between public and private interest in proving insanity under the law of New York, which provides great empirical background due to its long history of legal disputes and legislative changes. Considering the nature and structure of the burden of proof, the author concludes that there are several principles for its fair allocation: the due party that bears both the burden and the risk of its nonperformance; the feasibility of the burden; the adequate opportunity for the other party to rebut; the concentration of resources upon needs that are not presumed but in fact exist. All the mentioned principles lay the ground for the harmonization of constitutional guaranties for the defendant as well as the successful enforcement of criminal law. The current New York approach to insanity defense as an affirmative one along with the history of its implementation tends to prove its compliance with such requirements. This finding suggests that bearing the burden shall not be treated as impairment by default, but can protect both the interest of this party and the integrity of the whole process.

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