Recent critical approaches on human rights have exalted the potentiality of this category for seeking progressive agendas （Santos 2007） insofar as they are enacted within counter-hegemonic cognitive frames （Rajagop...Recent critical approaches on human rights have exalted the potentiality of this category for seeking progressive agendas （Santos 2007） insofar as they are enacted within counter-hegemonic cognitive frames （Rajagopal 2006） towards the construction of ＂subaltern human rights＂ （Onazi 2009）. Others,. however, have pointed out that the human rights institutional and political hegemony makes other valuable emancipatory strategies less available, and that this foregrounds problems of participation and procedure at the expense of distribution （Kennedy 2005）. Finally, others have explained how the abstractedness of the category entails a de-politicization （Rancière 2004; Zizek 2005; Douzinas 2007） or an emptiness that, of course, can be filled by progressive activism, but whose substance is easily reappropriated by those in power （Miéville 2005）. By engaging with the above-mentioned perspectives, and following the decolonial approach （Mignolo 2009; 2011）, I suggest that the category human rights can be decolonized and being used for progressive agendas only after a comprehensive critique of liberal legality （that entails a critique of liberal abstract rationality, political economy, and modernity/coloniality） has been performed.展开更多
China has entered a new era represented by the newly established China （Shanghai） Pilot Free Trade Zone, in which further reform and development of its financial system and capital market are highly prioritized. The...China has entered a new era represented by the newly established China （Shanghai） Pilot Free Trade Zone, in which further reform and development of its financial system and capital market are highly prioritized. The trust as an important vehicle in development of the financial market in China as well as in the world will play an important role, and there will be more foreign elements involved in Chinese trusts. The Law of the People＇s Republic of China on Application of Laws in Civil Relations with Foreign Elements provides rules, in its article 17, on the application of laws to trusts, which symbolizes the formal creation of rules of conflict of laws in China in this area. However, it seems to cause more problems than it may resolve. For example, it may not always be possible for the parties to determine the appli- cable law through consultation and agreement, and the parties＇ right to choice of law should not be without limitation either. By allowing judges to choose from ＂the law of the situs where the trust property is situated＂ and ＂the law of the situs where the trust relationship occurred＂ in the absence of an effective choice of law by the parties may lead to a situation contrary to existing laws and may create uncertainty for the parties as well. This paper analyzes this article 17 by comparing it with the conflict law rules adopted in the United States and by the Hague Convention, identifies problems, and seeks to find solutions in order to promote the healthy development of the trust system in China.展开更多
文摘Recent critical approaches on human rights have exalted the potentiality of this category for seeking progressive agendas （Santos 2007） insofar as they are enacted within counter-hegemonic cognitive frames （Rajagopal 2006） towards the construction of ＂subaltern human rights＂ （Onazi 2009）. Others,. however, have pointed out that the human rights institutional and political hegemony makes other valuable emancipatory strategies less available, and that this foregrounds problems of participation and procedure at the expense of distribution （Kennedy 2005）. Finally, others have explained how the abstractedness of the category entails a de-politicization （Rancière 2004; Zizek 2005; Douzinas 2007） or an emptiness that, of course, can be filled by progressive activism, but whose substance is easily reappropriated by those in power （Miéville 2005）. By engaging with the above-mentioned perspectives, and following the decolonial approach （Mignolo 2009; 2011）, I suggest that the category human rights can be decolonized and being used for progressive agendas only after a comprehensive critique of liberal legality （that entails a critique of liberal abstract rationality, political economy, and modernity/coloniality） has been performed.
文摘China has entered a new era represented by the newly established China （Shanghai） Pilot Free Trade Zone, in which further reform and development of its financial system and capital market are highly prioritized. The trust as an important vehicle in development of the financial market in China as well as in the world will play an important role, and there will be more foreign elements involved in Chinese trusts. The Law of the People＇s Republic of China on Application of Laws in Civil Relations with Foreign Elements provides rules, in its article 17, on the application of laws to trusts, which symbolizes the formal creation of rules of conflict of laws in China in this area. However, it seems to cause more problems than it may resolve. For example, it may not always be possible for the parties to determine the appli- cable law through consultation and agreement, and the parties＇ right to choice of law should not be without limitation either. By allowing judges to choose from ＂the law of the situs where the trust property is situated＂ and ＂the law of the situs where the trust relationship occurred＂ in the absence of an effective choice of law by the parties may lead to a situation contrary to existing laws and may create uncertainty for the parties as well. This paper analyzes this article 17 by comparing it with the conflict law rules adopted in the United States and by the Hague Convention, identifies problems, and seeks to find solutions in order to promote the healthy development of the trust system in China.
