Lu Xu

Over the past decade, Chinese law has undergone a considerable number of major
reforms, ranging from the high-profile constitutional amendments to the implementation of multiple online platforms, which have significantly altered legal practice and the judicial process. While scholarly debate remains split over whether China is turning away from law or is becoming more legalistic, there is little empirical understanding of how Chinese law and the legal system are perceived by those most affected by it, namely the Chinese citizens. This article fills the critical gap by leveraging an original public opinion survey of more than 5,000 Chinese adults to examine their views on issues such as the importance of law and the status of legal development in relation to economic growth. The findings suggest that Chinese citizens with actual experience of the legal system—whether from study, practice or personal involvement in litigation—hold vastly different views on many of these issues from those without such experience. The findings also suggest that important policy initiatives introduced by the Chinese leadership and the judiciary, such as the emphasis on constructing a socialist rule of law and the potential introduction of some system of case law, may enjoy popular support.

This study aims to identify and examine the different perception of benefit sharing in the sharing of international rivers in China, South Asia and Southeast Asia. Using the Q-Method, this study undertakes an in-depth analysis of the views of 35 experts of the field on hydrodiplomacy, international water law, benefit sharing and ecological benefits compensation. The results of the quantitative and qualitative analysis help to innovatively identify three streams of views among the participants, respectively described as supporters, idealists and pragmatists, each displaying strong geographical association to the three Asian regions. Supporters from Southeast Asia and pragmatists from China share much common ground on issues such as the types of benefits to share in international rivers, potentially providing the conceptual foundation for international cooperation. Idealists from South Asia prioritize and emphasise the role and importance of environmental benefits and ecological protection, yet differ greatly from the others on practical issues such as the inclusion of direct economic benefits and ecological compensation for using resources. This study contributes to the understanding of the theory and practice of benefit sharing in international rivers, as well as providing new perspectives to the interpretation and practice of hydrodiplomacy in Asian regions.

Environmental public interest litigation (EPIL) is an important development in the evolving framework of environmental governance in China. Through quantitative and qualitative analyses of decided cases brought by local government, public prosecutors and environmental NGOs, this study critically examines the features, strengths, difficulties and obstacles in the EPIL practice of China. While there is remarkable success overall for all three groups in terms of outcome, they each display different approaches and focuses. The prosecutors have established themselves as the cornerstone of the system by being the most efficient in winning the greatest number of cases. NGOs moved away from collaboration with the prosecutors in low-value cases, effectively into a competition with the government in a smaller number of high-value cases. Though they are willing to venture into areas where others hesitate over. The findings offer valuable insight to current EPIL practice and inform future policy adjustment and legislation.

Environmental Public Interest Litigation (EPIL) by non-governmental organizations (NGOs) emerged in China within the last decade amidst the growing focus on environmental issues and the increasing political need to bring greater public participation to the area. This article examines the current practice of EPIL by NGOs in order to understand potential flaws and deficiencies of NGO participation in this relatively new field of environmental litigation. The article sets out by exploring EPIL as a legal pathway for the public to become involved in China's environmental governance. It then analyzes the legal provision of environmental litigation in China before critically examining several instances of EPIL initiated by NGOs between 2015 and 2019. This article finds that NGOs show weaknesses in their current EPIL practice, including in case selection and litigation risk assessment, but are willing to test and potentially expand the scope of EPIL into new areas of environmental protection such as noise pollution and renewable energy. It concludes that these weaknesses and strengths of NGO involvement in EPIL reflect the constantly evolving landscape of environmental governance and environmental litigation in China.

Since March 2015, China has been implementing a nationwide unified real property registration structure. This article explains the objectives and measures of this ambitious project against the background of the current system which is fraught with complexity, difficulties and local variations. The move represents significant progress in the regulation and administration of real property in line with the vision of streamlined registration explicitly provided for in statutes such as Property Law of PRC (2007). Nevertheless, within this undoubtedly positive reform, the currently unclear relationship between property law and property registration is left unattended to. With reference to comparative materials from England, Scotland and Australia, this paper identifies some of the unanswered questions that would have serious implications on the integrity and reliability of real property register as a whole, especially in the context of fraud and forgery.

The Inner House case of Sheltered Housing Management Ltd v Bon Accord Bonding Co Ltd [2010] CSIH 42 was arguably wrongly decided. The court introduced a significant qualification never discussed or considered by anyone before into an empowering statutory provision. More importantly this interpretation was done on the basis of some quotes from a single document (the SLC report on real burdens) which were used out of context. In the meantime the court dismissed or ignored other parts of the same report which clearly contradicted such interpretation.

Furthermore, in overturning the original decision by the Lands Tribunal for Scotland, which showed commendable appreciation of the collective nature of the community of a tenemental development, the case seemed to have affected the mentality of the Tribunal in this context. In a number of cases after the Inner House decision, the Tribunal started to question its own competency to alter real burdens which were seen as unfair or out of date, without being prompted by the parties. The notion that the Tribunal could only reduce the burden for some owners if the reduction would not increase the burden on others is essentially contradictory to the ideology and reality of reciprocal rights and responsibilities in any tenemental community.

Hence the combined force of the Inner House and the Lands Tribunal has, unconsciously perhaps, undermined an important part of the reform introduced by the Title Conditions (Scotland) Act 2003 and the Tenements (Scotland) Act 2004. The power granted by the Scottish Parliament to address some of the problems and injustice in individual schemes of real burdens and tenement has been noticeably narrowed. This change of approach in the court and the Tribunal, started by a wrong decision, needs to be watched closely and hopefully reversed in future if an opportunity presents itself.

"The case of Batchelor v Marlow may remain the binding authority for English law. But its force is irrevocably weakened by Moncrieff v Jamieson. Moreover, the core test of Batchelor is flawed and ill-defined. A judge in the lower court has an easy way to avoid being bound by the case, for example by referring to some hypothetical possibility of building over or under the parking space. Consequently the ouster principle is no longer an obstacle in the recognition of parking rights as easement in English law.

However, there are many unanswered questions with regard to various types of parking easements, from shared parking rights, to exclusive right to park at designated space, as well as the interaction between right of way and right of parking.

Meanwhile, the Law Commission's proposal to abolish the ouster principle regardless of context is unnecessary and risky. If followed, this will damage many well established institutions of English property law beyond easement, such as leases and adverse possession. It may be better for the legislator to take no action as things stand. Instead the court should take the lead and a bolder approach without the fear of the ouster principle, in laying down some useful guidance for dealing with the practical difficulties of parking easement."

This is a project funded by the British Academy. The main findings of the research are as follows:

1) There are only 141 commonhold units, from 16 operational commonhold schemes in England and Wales, as of 1st January 2014. A significant proportion of these were created within the first two years of the commencement of the commonhold regime, before any problem became public knowledge. The turning point for commonhold, evidenced by a sharp drop in interest, was 2006. No operational commonhold scheme was established since August 2009, further indicating that the institution would not recover spontaneously without significant intervention.

2) The main reasons for choosing commonhold were personal preferences and fortuitous encounters with the concept, often not made in the course of profession or business. No major developer or conveyancing firm ever adopted commonhold. Many commonhold schemes were set up to help deal with situations in family or with other personal relations, by people not otherwise involved in the property development or legal sector. On the other hand, a very small number of professional had a huge impact on the number of commonhold. This research identified three individuals, unrelated to each other, who established among them more than half of all existing commonhold units in England and Wales.

3) The statutory structure for the daily operation of commonhold runs reasonably well, with no notable difficulty or inconveniences. Most commonhold schemes, despite being small, comply with formalities such as annual return and account at the Companies House, even if the information returned was not always helpful or accurate. With the small number of commonhold in existence and studied, no sophisticated dispute resolution mechanism has been needed. Some of the criticism from commentators prior to the commencement of commonhold about the lack of power for commonhold schemes to force compliance was perhaps unjustified given that such special powers might have led to further alienation of an unpopular concept from ordinary property owners and managers.

4) There is a distinct lack of understanding of the commonhold concept throughout the professions connected with real property transactions and management. A number of conveyancers helped creating commonhold as a favour for a friend or a former colleague, often free of charge. As time went on and commonhold never really grew beyond the first couple of years, it seems that many conveyancers no longer understand the concept or at least are unable to convey their understanding to their clients. Several commonhold unit owners felt that their conveyancers did not properly advise them on the differences between commonhold and leasehold or freehold, or they would not have bought the properties in the first place. The sense of misunderstanding, confusion and ignorance is even worse amongst estate agents. Properties that have nothing to do with commonhold are being advertised as commonhold. While genuine commonhold properties are sometimes forced into being labelled as freehold, or even leasehold, when put on market.

5) The most formidable challenge facing existing commonhold is the availability of mortgage finance. More than half of Council of Mortgage Lenders members either refuse to lend outright on commonhold, or impose stringent conditions on commonhold lending, such as for existing mortgage only. There is no clear explanation as to why banks hesitate to lend on commonhold, especially when some of these institutions would lend on flying freehold while rejecting commonhold. The effect of a loan rejection by a high street lender severely impacts on the parties involved. And it often becomes contagious within a scheme and beyond so that others start to worry about the long-term value and saleability of their units. This factor seems to singlehandedly outweigh all theoretical advantages that commonhold may have on the mind of commonhold owners who are aware of it.

6) Several commonhold unit owners have been unhappy enough about the system to having gone to look for a way out. The long legislative process that led to commonhold perhaps did not envisage such a desire so quickly after the commencement of the new system, to the extent that all the statutory mechanisms for the winding-up of commonhold would not help owners who want the scheme to continue to function as ordinary leasehold. It is unclear as to how owners can get rid of commonhold structure, but not the flats and the parts of the buildings owned by the commonhold association. Nor is it clear what entity or structure could succeed the commonhold, other than another commonhold provided for in the statute.

7) It is clear from the study that commonhold has failed to take any root in England and Wales. It is not going to recover on its own without significant conjoined efforts from a number of key stakeholders including the government, property developers, conveyancers and financial institutions. It is time for policy makers to make a decision. Either to revive and reinvigorate commonhold with policies, words and actions, or to put a proper end to an unpopular concept which has not worked out well. Commonhold will not become even slightly more popular as things stand in practice.

This book explains the details and underlying thinking of many major reforms to Chinese law and legal practice that have taken place since 2013. It draws widely on laws and regulations, policies, cases, official statistics as well as the latest Chinese and foreign literature. The informed analysis answers intriguing questions such as why China runs the world’s largest database of court judgments without recognising any precedent, or why the number of judges was cut by 40% despite a more than doubled caseload. Ultimately it offers a new approach on how to understand Chinese law and legal reforms in the contemporary world.