updrade 国际商法.ppt

1、UPGRADEPROJECT 6,091591117 Nico 091591118 Amy 091591119 Sunny 091591120 Jean,overview,Definition of the Codified Law Effect of Codification Up-grade of History Importance of Codification In Common Law And In Civil Law Up-grade of Codification In International Law Upgrade Of The Emergence Of Global A

2、dministrative Law The Normative Bases Of Global Administrative Law,Codified Law,Adminis-trative Law,Definition of the Codified Law,In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code. As a rule, codifica

3、tion is concluded by the creation of a new consolidated act built on uniform principles (most often in the form of a code).,Effect of Codification,Codification is an efficient form of systematization: through codification the laws in force are separated from those that are no longer binding, and com

4、pletely new norms in the given branch are created.,Up-grade of History (In Asia),The first permanent system of codified laws could be found in China, with the compilation of the Tang Code in CE 624. It formed the basis of the Chinese criminal code, which was then replaced by the Great Qing Legal Cod

5、e, which was in turn abolished in 1912 following the Xinhai Revolution and the establishment of the Republic of China. The new laws of the Republic of China were inspired by the German codified work (the Brgerliches Gesetzbuch).,Codification in Capitalist State (the United States),In the United Stat

6、es, acts of Congress, such as federal statutes, are published chronologically in the order in which they become law often by being signed by the President, on an individual basis in official pamphlets called “slip laws,” and are grouped together in official bound book form, as “session laws”. Becaus

7、e each Congressional act may contain laws on a variety of topics, many acts, or portions therefore are also rearranged and published in a topical, subject matter codification. The official codification of Federal statutes is called the United States Code. Generally, only Public Laws are codified.,Co

8、dification in Socialist State(Union of Soviet Socialist Republics),In the USSR, the 1960s and the early 1970s saw the comprehensive codification of legislation in various fields of social relations. During these years the Basic Principles of the Legislation of the USSR and the Union Republics were a

9、dopted in civil law and judicial proceedings, criminal law and judicial proceedings, and judicial administration. Also adopted were basic codes in such areas as family law, labor legislation, land law, and water use legislation, codes on marriage, etc.,Importance of Codification In Common Law,Civil

10、law may be defined as that legal tradition which has its origin in Roman law, as codified in the Corpus Juris Civilis of Justinian, and as subsequently developed in Continental Europe and around the world. Civil law eventually divided into two streams: the codified Roman law (as seen in the French C

11、ivil Code of 1804 and its progeny and imitators - Continental Europe, Qubec and Louisiana); and uncodified Roman law (as seen in Scotland and South Africa). Civil law is highly systematised and structured and relies on declarations of broad, general principles, often ignoring the details.,Importance

12、 of Codification In Civil Law,Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific fact situations arising in disputes which courts have adjudicated. Common law is the foundation of private law, not only for England, Wales and Ireland,

13、but also in forty-nine U.S. states, nine Canadian provinces and in most countries which first received that law as colonies of the British Empire and which, in many cases, have preserved it as independent States of the British Commonwealth. In addition to England and its former colonies, some legal

14、systems were converted to the common law tradition: Guyana, the Panama Canal Zone, Florida, California, New Mexico, Arizona, Texas and other former Spanish possessions.,Up-grade of Codification In International Law,A general codification of all branches of international law has not yet been implemen

15、ted. After World War II, intensive work was done on a partial codification of individual institutes of international law. In 1930 the Hague Conventions were such a codification with little progress being made. Following the Second World War, the International Law Commission was established within th

16、e United Nations as a permanent body for the formulation of principles in international law.,Importance of Codification In International Law,The systematization of international legal rules in force allows for more precise definitions and for the correction and removal of all existing contradictions

17、. A distinction is made between an official codification, which is conducted jointly by all or several states, and an unofficial or scientific codification, conducted by international and national social organizations or individual jurists.,Upgrade Of The Emergence Of Global Administrative LawThe No

18、rmative Bases Of Global Administrative Law,Definition Of Global Administrative Law,Global Administrative Law may be defined as comprising the Mechanisms, principles, practices and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in

19、 particular by ensuring they meet adequate standards of transparency, participation, reasoned decisions and legality and by providing effective review of the rules and decisions they make.,Definition Of Global Administrative Law,In essence GAL is nothing but the application of some administrative la

20、w principles to global governance. Therefore GAL must of course, draw on legal principles and practices from many domestic and regional legal systems and traditions, as well as from sources in international Law.,Upgrade of Sources of Global Administrative Law,The sources of GAL include apart from th

21、e rules and regulations of International organizations, the classical sources of public international law, which includes : Treaties Custom General principles Domestic law Global Institutions Intergovernmental agencies,Upgrade of Sources of Global Administrative Law,Domestic law may also be a source

22、 of GAL. Domestic law is a controlling source of law for domestic administration and thus for national administrative agencies either implementing global law or acting as a part of global administrative structures or both. Domestic Courts may also provide a forum for redress when global administrati

23、ve bodies act directly on private parties.,Upgrade of Sources of Global Administrative Law,Global Institutions are also one of the sources of GAL when they adopted internal mechanisms for participation and Accountability. Intergovernmental agencies have also worked as source of GAL. The WTO Appellat

24、e Bodys first ruling in the Shrimp Turtle case is fine example.,Upgrade of Global Public PolicyNetworks,Global Public Policy Networks are characterized by collaboration between governments, representatives of civil society and of the for-profit private sector. These networks are the response to an e

25、ver more complex social environment where traditional intergovernmental cooperation fails to find the right answer to intersectional problems.,Upgrade of Global Public PolicyNetworks,GPPNs are most likely to emerge in a situation of political deadlock. They can help to put issues on the internationa

26、l agenda and then kick off a discourse in which to debate that agenda. They include actors of different sectors and are typically organized in an informal or loosely structured framework that allows the network to learn and to adapt to a changing environment.,The emergence of GAL is to be welcomed.

27、It inter alia draws attention to a range of rules adopted, and decisions taken, by international bodies and non-state organizations that affect the rights of private actors, often without adhering to the basic principles and procedures of administrative law. The GAL project needs to be pursued. It m

28、ust however be embedded in international human rights law, the foundation on which to establish a human right to administrative justice.,The Normative Bases Of Global Administrative Law,The Normative Bases Of Global Administrative Law,Global administrative law are normative projects, and not simply

29、a taxonomical exercise or the promulgation of practical technical solutions to well-defined and accepted problems posed by global regulatory administration.,Different Patterns of International Ordering Different normative frameworks for global administrative law,3 different patterns of international

30、 ordering (simplified ideal types),Pluralism Inter-state pluralism is the typical pattern of traditional international law, with treaties, international institutions, and international administration limited to areas of agreement between states. Solidarism Inter-state solidarism envisages deepening

31、powers for international institutions and global administration based on shared values.,cosmopolitanism Cosmopolitanism envisages global governance that is not essentially the result of inter-state bargaining, but draws also from cross-border networks of civil society actors, private regulatory and

32、media institutions, and markets.,Different Patterns of International Ordering Different Normative Conceptions of Global Administrative Law,Intra-Regime Accountability,Protecting Rights,Implementing Democracy,Focusing on securing the accountability of the subordinate or peripheral components of an ad

33、ministrative regime to the legitimating center (whether legislative or executive), especially through ensuring the legality of administrative action. This conception emphasizes organizational and political functions and regime integrity rather than any specific substantive normatively, making it a potential model for an international order, particularly a plura