Law reform

0
148
商法词汇

It is easy for law to become outdated and to lose touch with contemporary concepts and values. In addition, the ever-changing nature of society and human behaviour means that new areas of law and regulation are constantly emerging.

This reality exists in all jurisdictions, irrespective of their legal origins, and whether the source of law is just legislation (written law) or both legislation and case law (judge-made law) [for a discussion about the differences between legislation and case law, see China Business Law Journal volume 3, issue 2: Binding or persuasive?]. This article discusses the nature and process of law reform in common law jurisdictions, particularly Australia, and in the People’s Republic of China.

What is law reform?

Put simply, law reform is the process of identifying deficiencies or gaps in the existing law or legal system, and recommending and implementing changes to remedy them. The process is not a straightforward task, as it requires extensive research into both legal and non-legal issues.

Sometimes the solution lies in updating the existing law to bring it into line with contemporary values and concepts, sometimes in introducing a new law to regulate areas that were previous unregulated. Sometimes the solution comes from within the relevant jurisdiction – namely, the solution is local in nature, and sometimes it comes from outside the relevant jurisdiction – namely, the solution is borrowed or adapted from other jurisdictions.

In some cases, the focus of law reform is to make the law more coherent, and the solution lies in the codification or restatement of law (for a discussion about restatements of law, see China Business Law Journal volume 11, issue 9: Restatements).

Where law reform identifies a good solution, it is still necessary to consider how the law reform should be implemented. This requires commitment and resources on the part of the government and the legislature. The greater the scope of the proposed law reform, the more time and effort is likely to be required in order to implement it. In some cases, the proposed law reform is technical and uncontroversial. In other cases, the proposed law reform is controversial and needs to be communicated and explained to the community, and, where applicable, validated through the election process.

Most jurisdictions have specialist bodies that undertake the functions and responsibilities of law reform. Law reform bodies can take different forms, including commissions that are established by statute and committees that are established by departments of government, such as the department that is responsible for justice or legal affairs. In many cases, the law reform bodies enjoy a degree of independence, either in terms of their organisational structure, or in terms of the basis on which their members are appointed.

In most cases, the functions of law reform bodies are limited to undertaking research and recommending changes. They do not have the power to implement changes, and they do not have investigatory powers (by way of comparison, consider the functions and powers of royal commissions in common law jurisdictions as discussed in China Business Law Journal volume 10, issue 5: Commissions of inquiry).

Australia

The Australian Law Reform Commission (ALRC) is an independent statutory body and was established by statute in 1975 to act as a law reform body in respect of Commonwealth laws. Its governing statute – the Australian Law Reform Commission Act – provides that its functions include the following:

    • Bringing the law into line with current conditions and ensuring that it meets current needs;
    • Removing defects in the law;
    • Simplifying the law;
    • Adopting new or more effective methods for administering the law and dispensing justice; and
    • Providing improved access to justice.

The ALRC considers matters that are referred to it by the commonwealth attorney-general, pursuant to “terms of inquiry”. Unlike law reform bodies in other common law jurisdictions, such as the Law Commission of the UK, the ALRC does not have a statutory mandate to monitor or review laws, or to prepare law reform programmes for consideration by the government.

In December 2019, however, the ALRC issued a suggested programme of work for the period 2020-2025. This programme followed extensive consultation with relevant stakeholders, including the public, to identify possible areas of law reform, and led to the ALRC’s current inquiry into corporations and financial services regulation in Australia.

This inquiry is part of the Australian government’s response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, which released its final report in February 2019. The inquiry is technical in nature and seeks to facilitate a more adaptive, efficient and navigable framework of legislation within the context of existing policy settings. The ultimate goal is to achieve meaningful compliance with the substance and intent of the law.

In addition to this inquiry, the ALRC is currently undertaking an inquiry into judicial impartiality, namely, the legal framework for managing the risk of judicial bias (for details of these two inquiries, see https://www.alrc.gov.au/).

The ALRC has stated that a good law reform inquiry topic is one where independent research will make a meaningful contribution to the legal and policy debate, and where its reports will be relevant and useful to the government. It has identified various criteria for selecting law reform topics, including importance, impact, suitability and effectiveness.

The ALRC is headed by a president, who is supported by commissioners and staff members. The positions of the president and commissioners may be occupied by judges and people with non-judicial backgrounds, such as academics.

Similar law reform commissions exist in the six states of Australia.

Hong Kong SAR

Unlike the ALRC, which is a statutory body, the Hong Kong Law Reform Commission (HKLRC) was established by an administrative decision of the Executive Council of Hong Kong. Pursuant to this decision, the HKLRC operates as an independent body and not part of the government. It is supported, however, by a secretariat that sits within the Department of Justice.

The website of the HKLRC provides that its mission is as follows:

    • To present proposals for reform that make the law in Hong Kong more effective, more accessible, and more in tune with the community’s needs; and
    • To engage the public in the law reform process, and to arouse public interest in that process by the dissemination of law reform material, and by effective communication with the community.

The HKLRC considers and reports on topics that are referred to it by the Secretary for Justice or the Chief Justice of the Court of Final Appeal of the Hong Kong SAR. Its membership includes legal academics, practitioners and prominent members of the community. The topics that are currently being considered include sexual offences, cybercrime and outcome-related fee structures for arbitration.

Macau SAR

The Law Reform Consultative Committee in Macau is a public sector office under the Legal Affairs Bureau. Its website states that it is a consultative body that has the purpose of assisting the government of the Macau Special Administrative Region to formulate policies concerning the construction of the legal system. Its responsibilities include making recommendations to improve law, and to promote reforms to the legal system.

The members of the Law Reform Consultative Committee include the head and deputy head of the Legal Affairs Bureau, and legal academics.

Mainland China

In mainland China, the function of law reform is primarily performed by the National People’s Congress Constitution and Law Committee (NPCCLC), a special committee of the National People’s Congress (NPC).

According to the work rules of the NPCCLC, as set out on the NPC website, the responsibilities and functions of the NPCCLC include:

    • Submitting proposals to the NPC in respect of the legislative programme for the five-year legislative plan and the annual legislative plan;
    • Reviewing and supervising the implementation of relevant laws and decisions in respect of legal issues;
    • Reviewing administrative regulations, local regulations, regulations of the autonomous regions and separate regulations referred to it by the NPC that the NPC considers to be inconsistent with the constitution or the law; and
    • Pursuing exchange with the relevant specialist commissions of foreign parliaments and legal circles.

The committee members of the NPCCLC are nominated by the delegates of the NPC and consist mainly of senior people with experience in law and the legal system.

葛安德 Andrew Godwin

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew Godwin is currently on secondment to the ALRC as Special Counsel to assist with its inquiry into corporations and financial services regulation. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com