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Renmin University of China Law School
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DEC 2017 FOCUS: NEW CHALLENGES AND UNDERTAKINGS FOR ADMINISTRATIVE ANDREGULATORY REFORM: A GLOBAL WATCH WITH CHINESE PERSPECTIVE



                                               Editor,s Note


        This issue of Focus compiles articles that showcase challenges taken and dilemmas endured by various Chinese administrative or regulatory bodies as well as international communities. The article authored by Professor Bruno da Silva reviews the conception of beneficial ownership and offers a very important piece interpreting the evolution beneficial ownership, one of the key concepts contained mostly in Articles 10, 11 and 12 of major international tax treaties but surrounded by great uncertainty. The article in a smart way demonstrates that, by reviewing the amendments to the OECD Commentary and the reports released by the OECD, the conception of beneficial ownership has not always been clear on the meaning, especially courts and authorities from various jurisdictions have adjudicated divergent interpretations in this connection. The article discusses that the inclusion of beneficial ownership in the Model arose in a moment when it was no longer necessary considering the second sentence of Article 4.1. The article further argues that the 2014 Commentary updated for the first time a definition of beneficial ownership by outlining two elements of “beneficial owner” and clarifies that the core feature therein is that the person who receives the payment (i.e., the dividend, interest or royalty) and has the right to use and enjoy it, may not be obliged — contractually or legally — to pass on the income item to another person.
         The article on insider trading focuses on an in-depth examination and comparison on the regulations of insider trading in the UK and China in order to figure out what has been achieved in the UK could be studied by its Chinese counterpart. Mostly, this article argues that the failure of some notable prosecutions, the enforcement of insider dealing rings, and the need to implement a civil penalty system, are all pressures for change in the existing regulations in the UK. For instance, the Financial Conduct Authority (FCA) views the proportionate and effective use of its enforcement powers to meaningfully safeguard the statutory objectives of the FCA in terms of maintenance of confidence in the financial system and the reduction of financial crime. However, the China Security Regulatory Commission as China’s top securities regulating administration does not enjoy the power to impose civil sanctions although it can detect, investigate and penalize insider trading.
          The article on monitoring medical disturbance mostly answers how the imbalanced doctor–patient conflicts and divergences such as medical disturbance (yinao) have significantly undermined the already-weakened mutual trust on medical professionals inChina and led to further deterioration of workplace safety and environment. The article recaps various sorts of efforts to cut off the hostile settings where medical disturbances are rooted and developed. It argues that such measures should at least include sufficient remedies provided by medical insurance, refined administrative mediation mechanism, better workplace protective systems in medical institutions, and more importantly, a full-pledged framework with enforceable rules to circumvent medical disturbances and resolving medical accidents. It also encourages stipulation of administrative, civil and criminal measures to punish medical disturbers while guaranteeing medical professionals such as doctors, nurses and supporting staffs due secured medical practice. In particular, a third-party dispute resolution mechanism, an improved appraisal platform and protection of confidential information of patients and doctors should be implemented in due course. The article points an important aspect that the social, cultural and professional settings of medical practice should be further improved by removing “revenge” attacks on Chinese hospital professionals.

        The focus are consisted of three articles:

EVOLUTION OF THE BENEFICIAL OWNERSHIP CONCEPT.pdf

AN EXAMINATION OF LEGAL REGULATIONS FOR INSIDER DEALING IN THE UK AND THE LESSONS FOR CHINA.pdf

TOWARD HEALING AND RESTORATION AGAINST MEDICAL DISTURBANCE (YINAO) IN CHINA.pdf

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