作业代写：Legal globalization

下面为大家整理一篇优秀的essay代写范文- Legal globalization，供大家参考学习，这篇论文讨论了法律全球化。伴随经济全球化，法律出现了全球化的趋势，法律全球化对民族国家时代的法律构成了挑战。在法律全球化过程中，美国等西方国家把本国法律输入到非西方国家，其中包含霸权主义的逻辑，而发展中国家，必须坚持开放的心态，不断深化改革，防止狭隘的民族主义情绪，保守主义的停滞和倒退，这样才能得到发展。

Along with the economic globalization, the law appeared the trend of globalization. The globalization of law poses a challenge to the law of the nation state. This paper tries to review the process of legal globalization, the main performance of the legal globalization, analysis the main theoretical model of legal globalization, and further puts forward Suggestions on China's response to the legal globalization.

It is well known that, at least since the late 20th century, despite the diversity of historical, cultural and social systems, more and more countries have adopted the rule of law. The rule of law means that economic management, political operation and social life all follow the rule of law, and the trend of legalization of social governance worldwide leads to the "global legalization". At the same time, the law began to cross the boundary of sovereign states and "travel" across national and global boundaries, thus leading to the "legalization of the whole world". In short, global legalization means that different societies move towards the rule of law, which implies the time target of the evolution of the governance model of human society. However, legal globalization means that some regional or industrial laws go to different societies, indicating the space power of legal diffusion, namely, transnational law and global law are expanding day by day. Without the background of global legalization, the influence of legal globalization would not be so far-reaching. Without the influence of legal globalization, global legalization will only stay at different regional levels. However, is the trend of legal globalization the fate of history, or false inevitability? Is it a sign of a global village under the rule of law, or an illusion of a mythical utopia? Is it the future Gospel of equality for all, or the reality nightmare of the jungle? In all this, opinions vary from person to person. Globalisation in its broadest sense dates back to Columbus's discovery of the new world. Since then, the "global" has really entered the human vision, and the western powers have also begun to extend their power to the global scope.

From the perspective of time, globalization and modernization go hand in hand. The transition from a traditional society to a modern one originated in the west. This transformation started from the Renaissance, through the religious reform and the enlightenment movement, and was shaped by the establishment of democratic constitutional system. The main sign of the transition from the traditional privileged status system to the modern society is that the unequal hierarchical power structure is replaced by the equal rights structure of all people in law. The contractual relationship based on personal autonomy replaces the traditional personal attachment relationship. The pursuit of rational value in the form of efficiency orientation has replaced the pursuit of irrational or substantive rationality. Non-humanized bureaucracy management has replaced the individual discretion of traditional social personification. The secular pursuit of external desire to satisfy the sensual desires has replaced the spiritual pursuit of inner faith, which is dependent on the peace of mind. In place of a uniform religious ideology, conflicting cultures have replaced one another. The modernization of western countries and its empire and the city state as the main body politic disintegration of the traditional order of the process, instead since 1648 established the Witt, Bavarian and nation-state system and on this basis, the international order. This national and international order has not eased but intensified conflicts and conflicts between western countries. They have also extended conflict and strife to non-western regions. Under interference and influence of the western powers, the most of the countries or regions of the non-western world followed were involved in this kind of modernization, and to the west nation-state model replaced the traditional political and social order. Therefore, the modernization of the century is also "experiencing the process of globalization".

The modernization of western society is coupled with the emergence and development of capitalism. Marx and Engels in the communist manifesto in 1848 concluded that capital will be infinite expansion, across national borders, because "the needs of the continuously expand the product market, driven by the bourgeois to run the world", and the world market, "make all state of production and consumption has become a worldwide", the "national one-sidedness and limitations are increasingly becoming impossible". Along with the worldwide spread of capitalist modes of production, the previously scattered society and independent nation-states are gradually involved in what the American scholar wollerstein called the "modern world system".

All this can be seen as an early prediction of globalisation. In fact, it was not until the last decade of the 20th century that globalisation became a reality to some extent. The first is the globalization of science, technology and economy, followed by the globalization of law. The globalization of law means that law begins to spread and flow across national boundaries. As an important part of globalization, legal globalization is inseparable from the globalization of science, technology and economy.

In the contemporary world, although the phenomenon of legal globalization is complicated, the following manifestations are particularly prominent.

In the field of human rights, the United Nations and international organizations have developed many standard human rights documents. The most important human rights documents are the universal declaration of human rights, the international covenant on civil and political rights and the international covenant on economic, social and cultural rights. The universal declaration of human rights while political more than law, lack of enforcement of universal validity, but it is, after all, for the development of international human rights and followed by all kinds of world human rights documents provided spiritual source and laid the foundation value, become an important starting point of the international human rights. Most countries in the world today have signed and acceded to these important international human rights conventions and have confirmed their implementation through constitutional, legal and judicial practice.

International human rights documents in addition to the provisions of the general rights and freedoms, including the international covenant on civil and political rights in the second paragraph of article 4 also stipulates the seven must not reduce, the basic rights: the right to life, from torture and inhuman treatment rights, from slavery, the right of personality right, not right of imprisonment for debt, thought, conscience and religious liberty and is not subject to retroactive rights of legal punishment. Is considered to be the nature of the moral rights, these rights are human rights and thus has universality and inalienable, for absolute sovereignty constitutes the material limit, to join the sovereignty of the state shall not refuse to admit or change to these basic rights or impose restrictions. Accordingly, the laws of any state party contravene them and must be amended; No state party may infringe or deprive these rights, or face condemnation from the international community and even sanctions from the United Nations. A lot of international human rights at the same time, the executing agency and began to set up effective operation, such as the United Nations general assembly, in ecosoc, the UN human rights council, the United Nations high commissioner for human rights commission, the commission on human rights, against torture committee, committee on elimination of racial discrimination, the children's rights and the elimination of discrimination against women committees, etc. Accordingly, international relief measures for human rights protection have been strengthened. These measures include states reporting procedures, between states parties accused system and personal appeal system, such as the international human rights organizations shall have the right to require the parties to change domestic law and provide relief to the victims.

It should be emphasized that, during the cold war, international human rights were primarily a tool of political struggle because of the confrontation between the "two camps". With the end of the "cold war", the international community to protect human rights issues take cooperative attitude, especially in counterterrorism, nuclear competition and prevent nuclear proliferation, combating international criminal and other fields, have made great progress through cooperation. In addition, when the basic freedoms and rights stipulated in the international human rights document that has more than half a century, such as its universality of the international community more widely agree that it should be in the equal dialogue between different civilizations and the country, the content, meaning and expression form of basic rights, further improve and expand, make them on the value orientation and discourse expression has a wider range of inclusive.

There is a wide debate about the concepts of "global governance" and "international rule of law". But the two ideas put forward to some extent, indicates that under the background of globalization, many of the problems cannot be within the scope of national architecture and effectively resolved, and must be made from the perspective of global concerns. As is known to all, organizations such as the wto and the world bank have played an active role in global governance. Since the establishment of wto, states parties must adjust their legal systems in accordance with relevant agreements, such as cancelling internal administrative regulations, amending intellectual property law and reforming the judicial system. At the same time, the wto dispute settlement mechanism is very unique and efficient. It is honored as "the pearl in the crown". First, the dispute settlement mechanism consists of a two-tier system, with the basic group as the expert group and the upper level as the appellate body. Second, the expert group and the appellate body are well equipped. Both current and former WTO representatives or scholars from non-disputing parties are appointed as individuals to ensure the neutrality, professionalism and prestige of the judges. Third, the panel report adopts the principle of the "reverse consensus", namely, as long as the parties dispute is inconsistent, the report is passed, this makes the panel report obtained automatically by effect, almost put an end to the dispute parties adopt delaying tactics; Fourthly, the dispute settlement mechanism is flexible, allowing the disputing parties to "settle out of court" in the process and resolve disputes by themselves; Fifth, once the dispute settlement mechanism of the verdict, shall be carried out by the parties to the dispute, otherwise the WTO may authorize the prosecution against the defendant "cross retaliation", in the field of the cross to the losing party to serious threat, even caused substantial damage. In fact, the appellate body responsible for the settlement of disputes in wto has quasi-judicial function, and its decisions have quasi-judicial effect.

For example, when the world bank and the international monetary fund provide loans to developing countries, they are often accompanied by conditions requiring recipient countries to reform their political and legal systems. At the domestic level, they call for the rule of law, greater participation by citizens, transparent, open, accountable, clean and fair administration. At the international level, they require transparency in decision-making, broad participation, unimpeded information, efficient management and sound financial systems. In order to obtain assistance or loans from international financial institutions, many developing countries have to accept these additional conditions and reform their own laws as required. In fact, many countries have carried on the political and legal reform, marketization and the level of the rule by law has improved than before, the world bank and international monetary fund has made a contribution to global governance. But it should be noted that in the 1990 s, pursued by the world bank and international monetary fund is the basic of new liberalism "imperative" free market, and to accept the above political reform requirements as a condition of aid to developing countries, as a result, many disadvantages, such as the lack of regulation of market chaos and economic crisis, the introduction of a large number of western political and legal system because of the lack of corresponding legal culture and social conditions, and cannot operate effectively. They push for political and legal reform in developing countries, its purpose is to hope that these countries realize the democratization and legalization, the problem lies in haste, and require too specific, don't give the aid to developing countries to set aside more time to prepare and larger choice. Since the late 1990 s, especially after the financial crisis in the United States, the world bank began to adopt amartya ・ and riches Gerry, moderate markets such as advice, adjust the direction, emphasized the importance of promoting equality, not the political reform as a mandatory condition of economic aid, but to make relevant countries according to their own conditions for political reform and the reform of law step by step.

As early as the late middle ages, with the revival of commerce, the law of European businessmen applied across borders appeared in Western Europe. At the beginning, merchants engaged in cross-border trade with cities as their residence, formed their own laws and formed their own commercial courts on the basis of drawing lessons from Roman law and customary commercial law. With the establishment of the nation-state, the europeanized identity merchant law has been unified into the legal system of all countries and become an integral part of the national law. In France and Germany, the merchant law was incorporated into the national legal system through codification. In Britain, the law of the businessman was incorporated into the common law system by a judge's decision. Since then, international commercial law has also been based on sovereign states, and the transnational commercial law of self-construction and development of businessmen no longer exists.

However, since the economic globalization, transnational commercial activities have increased sharply and trade shows a trend of globalization. As a result, the domestic companies were involved in most countries to the competition of global market, multinational enterprises is growing fierce competition between, forcing all enterprise strategic adjustments, began to reform enterprise organization mode and operation way. Followed, joint venture and mergers and restructuring activities such as unprecedented active, the number of multinational companies, the scale and its importance in the business world, far more than any period of history. In transnational trading activities, transnational corporations in developed countries generally believe that the laws of developing countries are not "democratic" and "normative" enough to avoid the laws of those countries; Multinationals in developing countries argue that the laws of developed countries are largely western and manipulated by western countries to the detriment of non-western countries and seek to avoid them. In order to avoid risks and reduce transaction costs, the transactions of transnational corporations and other transnational business activities are gradually becoming legal. Since neither national law nor international law can meet the needs of transnational corporation trading activities, the new global merchant law came into being. Therefore, after the europeanization and nationalization, the merchant law has entered the process of globalization.

According to toibner's research, the effectiveness of new transnational or global merchant laws does not come from national or international authorities, but from the contracts of businessmen. This commercial contract effectiveness is not from national law in the contract itself, namely the merchant law stems from a commercial contract, and the effectiveness of the contract from by contract law, thus has formed a strange paradox of circulation. At the same time, the new merchant law stipulates the dispute settlement mechanism by means of contract, and the dispute usually resort to international arbitration. The choice of the place for arbitration and its personnel depends on the contract agreement of the parties. Although the enforcement of the award is sometimes referred to the national court, the court's intervention is not based on the legal provisions of a particular country, but on a treaty of mutual benefit of contractual nature between states. Generally speaking, such disputes "have little reason to go to court" because "the final arbitrator's decision" is "easier to enforce than the court's decision". Some scholars call this dispute settlement mechanism "private justice" that surpasses the national legal system. In view of the above characteristics of the new merchant law, some people refer to the legal culture embodied in the merchant law as the "third legal culture" that transcends national and national legal culture.

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