Global Law Review(6-2020)




The Mechanism for Shaping the Judiciary by the Party-government System


Zheng Zhihang


Abstract: The Communist Party of China (CPC) has retained its relative independence while embedding itself into state power system and performing important political and administrative functions. In the long process of revolutionary struggle and political power construction, the CPC has gradually developed a “Trinitarian” organizational framework of party-government system. Through the mechanisms of ideology, political mobilization and official management power, the party-government system has ideologically and cognitively shaped a professional group of judges and enhanced their political awareness, spirit of dedication and professional skills. The CPC always views the function and basis of the judiciary from the perspective of goal rationality, and continuously transmits political potential energy to courts, thereby influencing their choice of judicial basis. When certain political discourses and political ideas are inconsistent with the requirements of legal technique, courts or judges will fully consider the political potential energy behind them, and create new adjudicative rules in due course. The party-government system has promoted the transformation of the "law in the text" into the "law in action" and the formation of the dual-structured legal-social outlook on judicial effect. The court will also take the initiative to rely on the party-government system to transmit the Party’s political potential energy to the relevant government departments through embedded logic of dual-level organizational operation to solve the "cooperation dilemma" in judicial process.


The Inter-jurisdictional of Local Government Joint Agencies


Ye Bifeng


Abstract: France and Japan have adopted numerous laws on local cooperation, according to which local governments can set up joint agencies based on autonomous association. In China, local governments also have autonomous right. Although this right in China lacks the character of “defense”, it still covers association, which means local governments can set up agencies according to law and enact organizational rules for them. The establishment of inter-jurisdictional joint agencies should be in full compliance of the principles of law reservation and law priority and be prescribed by laws made by the National People’s Congress. Local legislation may not establish any inter-jurisdictional joint agency, but it can make detailed rules on the approved ones. China needs to improve organizational legislation and permit local governments at or above the county level to jointly set up inter-jurisdictional departmental agencies or field agencies as needed. China also needs to improve the agency setup procedures, specifically provide for the subjects with the authority to set up inter-jurisdictional joint agencies, and establish the equality rule and the public opinion foundation for the formation and operation of joint agencies. An inter-jurisdictional joint agency shall apply laws according to the nature and status of the jurisdictional affairs. In principle, it has jurisdiction in the administrative areas of all its partners. As for concrete affairs and the limit of regional jurisdiction, they depend on the needs of the task to be performed as well as the agreement among partners. Once an inter-jurisdictional joint agency exercises its jurisdiction, agencies that are responsible for the same affairs within the administrative areas of the partners shall immediately transfer, rather than keep exercising, the jurisdiction. In addition, the effective operation of this system also depends on the coordination of local rules and regulations among all the partners.


The Surety's Right of Defense under Article 702 of the Chinese Civil Code


Cheng Xiao


Abstract: According to Article 702 of the Chinese Civil Code (CCC), where the debtor has the right to set-off or to claim revocation against the creditor, the surety may refuse to assume suretyship liability to the corresponding extent. This right is aimed at protecting the surety’s lawful interests from the risk of non-recovery. As a temporary or deferred defense right directly granted to the surety by CCC, it does not mean that the surety can directly exercise the principal debtor’s right of set-off or to claim revocation, nor is it the principal debtor’s right of defense against the creditor. When the principal debtor has the right to rescind against the creditor or the right to choose, the surety may also refuse to assume the suretyship liability accordingly. A surety who has assumed the surety liability without knowing it may not request the creditor to return the unjust enrichment. The surety’s right to refuse to assume the suretyship liability in Paragraph 1 of Article 694 of CCC refers only to the right provided for in Paragraph 2 of Article 687 of CCC, not the right provided in Article 702 of CCC.


The Systematic Expression of the Risk Distribution of Pre-contract Information


Yu Chengyuan


Abstract: The distribution of information risk in the contracting process is expressed in the civil law in a complete three-level system. This system divides all information exchanges between parties to contracts into three types: appointment, contract information and expression of opinion, which correspond to three modes of remedy and combinations of rules respectively, namely liability for breach of contract, revocation for bad faith and revocation for serious misunderstanding. This system consists of three progressive levels, with fundamentally different legitimacy basis and means and strength of remedy. In this system, the liability for breach of contract, which ensures performance interest through the parties’ autonomy of will, is the strictest one; the obligation to disclose, which is constructed on the basis of the principle of good faith, is fully realized in revocation for bad faith, and the revocation for serious misunderstanding represents a backstop remedy for the freedom of party autonomy and should be applied with caution.


Reflections on and Reconstruction of the Investor Protection Mode in Voluntary Delisting


Zhang Yan


Abstract: The current delisting resolution mode in China, which equates delisting with corporate structural measures and investors with class stock shareholders and attempts to suppress delisting resolution by strengthening investors' voting rights, is the result of understanding investor protection in the Securities Law in accordance with shareholder protection in the Company Law. This resolution mode not only fails to meet the protection needs of the investors of delisting corporations, but also leads to many negative consequences. Therefore, a shift from the resolution mode to the compensation mode is urgently needed. The compensation mode can meet the protection needs of investors in voluntary delisting more accurately, deal with the conflicts of interest between corporate autonomy and investor protection in a more balanced way, and be more in line with the legal doctrine attribution of delisting investor protection. The position of the compensation mode in the doctrine of Securities Law is a mandatory offer within the framework of the securities acquisition system. The purchaser must issue a public offer, which should be complete and paid in cash, to all investors to purchase shares at a specific price.


Construction of the System of Claim Rights in Labor Law


Yuan Zhonghua


Abstract: The absence of the system of claim rights in labor law, both in theory and practice, has caused many problems in judicial practice. Therefore, the construction of this system is urgently needed. The basic framework of this system should be based on the distinction between the primary and the secondary rights of claim, and between the payment obligation and the protective obligation. Therefore, both laborers and employers have the following rights: 1. the primary rights of claim based on the payment obligation; 2. the secondary right of claim based on the violation of the payment obligation or other causes; 3. the primary rights of claim based on the protective obligation under some special circumstances; 4. the secondary rights of claim based on the violation of the protective obligation;and 5. the similar rights of claim in contract. On this basis, China should further examine and interpret the Labor Contract Law and other relevant laws, so as to not only distinguish and classify the relevant claim rights and realize their systematization, but also indentify many claim rights that have been missing in the law, and improve them in terms of hermeneutics and legislation. The construction of the system of claim rights in labor law is of great significance to the connection between substantive laws and procedure laws, as well as to the improvement and integration of legal theory, legal practice and legislation.


The Institutional Value and Jurisprudential Structure of Suspension of Partial Sentence


Zeng Wenke


Abstract: Suspension of partial sentence means that the actual term of imprisonment, the suspended term of imprisonment and the probation period are announced at the same time in a judgment and that, after the completion of the actual term of imprisonment, the suspended term of imprisonment will not be executed upon the expiration of the probation period. By strengthening the linkage between imprisonment and community correction at the sentence announcement stage, suspension of partial sentence can, on the one hand, ensure that the offender receives sufficient and necessary community correction after serving a certain period of prison time, which helps to break the dilemma faced by the release after completion of sentence and parole, and, on the other hand, help us to change the perspective from which we look at community corrections and to combine community correction with imprisonment, so that they can play a joint role in preventing recidivism. Suspension of partial sentence is a subtype of execution of the whole sentence. China should not set up (too many) mandatory preconditions, such as declaratory sentence and criminal record, for the application of suspension of partial sentence. The necessity and equivalence of the prevention of recidivism are not only the substantive elements of the suspension of partial sentence, but also the substantive standard for deciding whether it is necessary to cancel the partial probation. The declaratory sentence should not exceed the level of retribution, and the actual term of imprisonment and the probation period for suspension of sentence should be sufficiently guaranteed when declaring it. At the execution stage, measures such as parole, commutation, or simply shortening the probation period can be used to deal with the phenomenon of reduced need for special prevention. Rules on suspension of partial sentence that are different from the rules applicable to ordinary offenders or special sentencing standards can be made for typed offenders, rather than typed charges.


The Logic of and Reflections on the Second-instance Trial of Cases of Leniency for Admission of Guilt and Acceptance of Punishment: Taking 4,799 Second-instance Adjudicative Documents as Samples


Zhang Qing


Abstract: An empirical analysis of 4,799 second-instance adjudicative documents shows that, in practice, the system of leniency for admission of guilt and acceptance of punishment is faced with such dilemmas as limited scope of application, very little actual effect of "leniency" obtained by the defendant, formalized understanding of the standard of "acceptance of punishment" by the prosecution and the court, procedural alienation and resistance expansion. In addition to such normative and procedural limitations as lack of unified and authoritative implementation rules, insufficient procedural leniency that aggravates the "positive restriction" effect on substantive leniency, and inadequate negotiation on guilty pleas, these dilemmas are also caused by the freedom penalty-centered penalty structure in substantive criminal law. To further improve the system, China should, on the one hand, promote the adoption of more operational implementation rules by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Justice, the Ministry of Public Security and the Ministry of National Security at the normative level and, on the other hand, remodel the system on the basis of both Chinese judicial context and foreign experience by clarifying the scope of application and the procedural binding force of the system, and ensuring the adequacy of prosecution-defense negotiation and the realization of substantive leniency.


A Normative Analysis of Criminal Corroboration: From a Method of Proof to a Rule of Proof


Kong Lingyong


Abstract: In recent years, China's theoretical and practical circles have carried out extensive and continuous discussions on criminal corroboration, but never performed any in-depth study from the normative perspective and, as a result, been unable to reach a consensus on some key theoretical issues. According to the normative analysis of criminal corroboration, corroboration first appeared in judicial practice as a method of proof, and gradually developed with the promulgation of relevant laws and judicial interpretations. The strictness of criminal proof, the standardization of free evaluation of evidence and the visualization of empirical rules are the theoretical bases of the existence of criminal corroboration. However, with the increase of relevant norms and the gradual formation of a system, criminal corroboration has changed from a method of proof into a rule of proof, but it still does not constitute a mode of proof. At present, criminal corroboration can be applied in the determination of the probative value of evidence, evidence capacity and the voluntary nature of the defendant's admission of guilt and acceptance of punishment. In different fields of application, the legitimacy basis, normative form and specific structure of criminal verification are also different.


The Plaintiff’s Standing in Administrative Litigation on Risk Regulation


Wang Guisong


Abstract: Administrative litigation against risk regulation can reflect the basic issues and the complete judgment framework of the plaintiff’s standing. At the first stage, it is necessary to judge whether the interests claimed by the plaintiff are protectable. Chinese courts have begun to carry out the review according to the theory of protective norm. Although this is a matter of legal interpretation, it still mainly focuses on legal basis and, as a result, lacks consideration of multiple factors. At the second stage, it is essential to determine whether the protectable interests of the plaintiff are actually infringed upon. This is a matter of factual finding. The court usually resorts to such standards as distance to determine the probability and magnitude of the damage and then delineate the range of plaintiffs that need protection. With respect to the proving of the plaintiff’s standing, the usual standard of possibility can still be applied. With respect to the possibility of damages caused by risk facilities, since safety review is required for the installation of risk facilities, it can be presumed that such possibility exists; as for the possibility of the plaintiff's interests being infringed upon by risk facilities, the burden of proof still rests on the plaintiff. However, because the interests involved in risk regulation are not clearly defined, the recognized plaintiff also assumes public functions to a certain extent.


The Inherent Logic, Realistic Dilemma and Reform Path of International Health Regulations


Wei Qingpo


Abstract: The globalization of infectious diseases and international cooperation in their prevention and treatment have highlighted the necessity of global public health governance and the importance of an effective International Health Regulations (IHR) mechanism. The World Health Organization, established on the basis of functionalist theory, has always regarded itself as a specialized organization. IHR employ the logical concept of “security” to promote international public health cooperation from the collective perspective of common security. However, the inherent tension between national sovereignty and international health interests and the lack of standardization and transparency of PHEIC have led to many practical difficulties in and posed many challenges to the compliance with the IHR, resulting in structural failure of the mechanism. Based on the analysis of the complex system and internal tension of the global infectious disease surveillance and control mechanism, this paper proposes to establish a “risk-based” framework to ease the internal tensions and contradictions in system construction, clarify the elements and requirements of PHEIC and enhance its transparency, and guarantee the normative and authoritative nature of IHR. Moreover, this article argues that the international community should, based on the concept of a community with shared future for mankind, integrate IHR with treaties under WTO regime, strengthen the coordination of trade measures, and continuously enhance the system and capacity for the global response to public health emergencies.