Salus: the seizure of the ship (or othe mobile asset while it is located at the jurisdiction of the creditor) sounds like kidnapping but it is actually a very common breach of contract legal remedy available in most jurisdictions (US and Europe included). For example, when a non-US debtor failed to pay, we tracked when their mobile asset was going to be in the US, and when it entered US territory, we applied for seizure of the asset to force their performance of their contractual obligations.
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sfjp330: I do not know the details of the case, so am only speculating the theories the Japanese party can use to defend its position (whether any of the theories would work depends on the specific facts of the case).
Anyways, this case was decided by a single regional Chinese court. I do not know why people are so quick to condemn China as a nation when they do not have the full facts of the case and are not legal experts.
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I see lots of emotional reactions to this case. The legal analysis should be as follows:
Was it a valid contract between two private parties? If it was a valid contract, did the Japanese party breach the contract, for example, by not returning the ship or not paying the rental on the lease of the ship.
If the ship was requisitioned by the Japanese government, it does not automatically relieve the Japanese party of its obligation to return the ship or pay the rental on the ship. Typically in this type of scenario it would be considered a "total loss" of the hull and the Japanese party would continue to be obligated to pay rent and the total loss proceeds.Legal theories the Japanese party could use to defend their non-performance of the contract:
(a) Statute of Limitations -- however, as this dispute is between private parties from two different nations, we will need to look at the governing law to determine which nation's law on statue of limitations governs the contract, and if the governing law is unclear, the parties would need to look at if Japan and China have a treaty or are parties to a treaty that specifically discusses statutue of limitations. If there is none or if the governing law's statute of limitation is say 100 years, then the Chinese party is not estopped from making a claim notwithstanding the passage of time;
(b) 1972 Joint Communique where China agreed not to make further claims on war reparation -- however, we will need to look at what constitutes "war reparation claims." Does the scope cover valid contracts between two private parties? If a Chinese citizen lends $100 to a Japanese citizen in 1930, and the Japanese citizen never returns the $100 because the Japanese government took the US$100, does it mean the Chinese citizen can longer make a breach of contract because of the 1972 Joint Communique? Is that within the scope of "war reparation"?
(c) In my opinion, the best defense of the Japanese party may simply be that they are not the legal entity that entered into the ship contract (it seems the Japanese company underwent several rounds of re-organization over the years). The Chinese party is suing the wrong guy.
Anyhoo, seeing lots of heated rhetoric here, but it seems to me it's more of a legal case than a political case.
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You misunderstood my point completely. You and I live in democracies and I assume you also believe in democratic values. We therefore should treat ALL people, regardless whether they live in democratic countries or an authoritarian regime, as individuals and judge them base on their individual merit.
You seem to imply that if people live in oppressive regimes, they should be judged by a different standard, that of guilty by association.
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@2020hindsights and tokyokawasaki:
So 1.3 billion Chinese are guilty by association?
One of the key tenets of democracy is that we treat people as individuals, and judge them on their individual merits and not their race/nationality.
There have been plenty of non-Chinese who have doped (including Americans and Europeans). Mark Landis, Michelle de Bruin, Marion Jones, to name a few. So doping is hardly a Chinese thing.
Medalists are required to be tested. Why don't we all wait for the results and not attack a sixteen year old girl based purely on speculations.
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If you do not agree with my comment, please provide a counterargument. If your reasoning makes better sense, more power to you. I do not mind. But please do not resort to personal attacks. That is low.
I think the key issue here is whether these women fall within the scope of the treaty. People are taking it as if it's a fact that the 1965 compensation covers these women. But, if the Japanese government do not even admit the existence of these women, how could they have provided for compensation in the treaty? And what about North Korean women, and women from other Asian countries?
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The point is not to force any apologies. Apologies without sincerity are cheap anyways. The point is to learn from the mistake, repent and move on.
Of course being a woman has something to do with the plight of the comfort women. Sexual violence against women is probably one of the most horrific forms of violence. I was appalled to read that certain Japanese politicians and the Yasukuni shrine's website (at least when I visited it a few years back) essentially labeled the women as liars.
I have not read the full text of the treaty. I do not know for sure if the scope of the treaty covers the "comfort women." What I do know as a lawyer is that laws are rarely clear cut and are often subject to interpretation. I would be interested to know if at the time, the two governments specifically discussed "comfort women" or if they only talked about compensation for other forms of forced service.
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As a woman, and as someone who has read about the "comfort women", I am horrified by some of the comments here.
The greater issue with Japan's war time atrocity is not that the Koreans or Chinese do not want to let go of the past, rather it is they know deep down inside, the Japanese do not believe they did anything wrong, and do not give a damn about the suffering they inflicted on their neighbors.
The contrast between Germany's contriteness and Japan's wishy washy apologies could not be greater (i.e. apologies followed by leading politicians visiting a shrine that honors Class A war criminals which renders the apologies rather meaningless and insulting).
Anyways, it's sad that Japan is letting its false sense of pride getting in the way of doing what is right. Even if these women do not have legal standing at this moment, Japan as a nation has a moral obligation to provide compensation. I for one will tell my children the story of WWII, and remind them that people make mistakes, but what's more important, and what separates morally strong people from morally weak ones, is the courage to admit mistake and correct the mistake.
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@Hide Suzuki, "I'm surprised they actually acknowledged that it was their mistake. Normally they blame anyone but themselves." Eh, what is this "they" you are referring to? China Eastern? Chinese aviation industry? 1.3 billion Chinese? Do you have any statistical evidence that more Chinese refuse to take responsibility for mistakes than other people, country, races?
@seesaw1, "the strange Chinese culture could be another reason." If 1.3 billion people think it's a fine culture, maybe it's not so strange after all... I have met people with the most refined manners and accents, and yet they turned out rotten inside, and I have met people who are not as refined in manner, and who are kind of "rushy", but after I got to know them, they turned out to have hearts of gold. So don't always judge people by the cover.
Peeps, this is one pilot from one Chinese airline. the pilot may not even be Chinese as there are many foreign pilots, Brazilian, Korean, Taiwanese working in China (in fact the Juneyao pilot referred to in the article was Korean and he was promptly dismissed after the incident). So please stop generalizing about "they" are this and 'they" are that, or their strange culture... If guilty by association is not racism, I do not know what is.
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Sandra CaraanAug. 31, 2011 - 08:09AM JST. Gosh why can't the just get along and forget about the war, it was so long ago. There is new times and new problem to take care of now.
We were ready to forgive and forget and move on... in the 1980s, Japanese TV shows, cartoons, dramas, filled the airwave, and Chinese people practically worshipped Japanese culture. I even remember there were stamps (with a Japanese girl and Chinese girl planting a friendship tree) commemorating the diplomatic relationship between the countries.
However, this sentiment changed when we realized most Japanese do not know the horror they inflicted on other Asian countries and are very defensive if they are presented with evidence of Japanese military aggression. Indeed, most Japanese still see themselves as THE victim.
It's nice they have expressed remorse. However, what is the point of expressing remorse if leading Japanese politicians (which are representatives of the Japanese people) repeatedly go to Yasukuni shrine. When I visited the shrine's website a few years ago, it stated that Japan was framed by western countries and other Asian countries wanted Japan to lead a greater asian co-prosperity sphere. It also portrayed the comfort women as liars.
All we are asking of the Japanese is please respect the sentiments of your victims, let bygones be bygones, do not rub salt on the wound. Stop going to that shrine.
And btw, other than this disagreement, I love Japanese culture and its people... but on this point, Japan is on the wrong. It has let its false pride get in the way of doing what is right.
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These islands are disputed from a third party standpoint. They are no where close to the Japanese main islands. Me thinks Taiwan has the strongest claim since the islands are practically next door to Taiwan.
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