Australian Journal of Asian Law Edition 14(2)

Edition 14(2) of the Australian Journal of Asian Law is now available on SSRN
It includes the following articles:

The Internal Logic Behind the Evolution of Company Law in China – Do Legal Origins Matter? Andrew Godwin Excusing Notice Under Singapore’s Statutory Derivative Action Alan K. Koh The Fiduciary Doctrine as a New Pathway: An Alternative Approach to Analysing Native Customary Rights in Sarawak Hang Wu Tang Case Note: Named or Unnamed? The Importance of Anonymity: In the Matter of BU (Applicant/Appellant): Civil Appeal No 103 of 2012 (Hong Kong) Charles KN Lam The Standard of Medical Care in Malaysia: The Case for Legislative Reform Joseph Lee Legislative Update: Recent Amendments to South Korean Criminal Law: Confronting Child Sexual Abuse Hyungsoon Park The Criminalisation of People Smuggling: The Dynamics of Judicial Discretion in Indonesia Antje Missbach and Melissa Crouch

In our paper on people smuggling, we analyse the way in which Indonesian judges have defied the legislature and sought to retain judicial discretion in sentencing practises for people smuggling cases, at times handing down a prison sentence less than the five year minimum. While this creates legal uncertainty and does not promote the rule of law, it has meant that an accused has a greater chance of the circumstances of their case being taken into consideration at the sentencing stage of a trial for the offence of people smuggling. This is important, given that most people who are brought to court are small actors in contrast to the bigger networks of people smugglers. This provides a comparative point of reflection on sentencing practises for people smuggling, given that Australia’s High Court recently upheld mandatory sentencing for people smuggling offences, despite the fact that judges and human rights organisations have spoken out against the mandatory minimum sentence.