Global Law Review(2-2021)



Why Are People’s Congresses Organs of State Power?


Liu Zhixin


Abstract:The term “organ of state power” has never been found in western constitutions, but is unique to socialist constitutions. It has undergone a complicated trilogical development process: originating from the constitution of Soviet Russia, taking full shape in the constitution of the Soviet Union, and later being transplanted into China. According to the Chinese Constitution, “organ of state power” are the organs ''through which the people exercise state power'. They distinguish between powers and functions and transform powers into functions. The compound structure built around organs of state power consists of both powers and functions, which are closely connected to and distinguish from each other. This compound structure is totally different from the unified power structure in western constitutions in two directions: in one direction, it replaces "separation of powers" in western countries with "division of functions", thus avoiding the separation and transfer of powers while at the same time realizing the differentiation of functions among state organs. As is pointed out, powers are inseparable and they need functions as their separable substitutes. In the other direction, it ensures that state powers are concentrated, unified and remain in the hands of the people. This structure originates from Marxist attitude of reservation of state power. On this basis, the Chinese constitution goes beyond the Soviet model by creating a brand-new mechanism for preventing the over-concentration and excessive reservation of power.


The Deterrence Logic of the Setting of Administrative Fines and Its Systematization


Tan Binglin


Abstract: The lack of guidance by proper jurisprudential logic is an important reason for the unscientific setting of fines in legislation. The mode of administrative punishment has undergone a transformation from that of risk elimination to that of risk prevention. Correspondingly, its institutional logic has also undergone a transition from that of negative sanctions after the event to that of positive deterrence before the event. Fine setting should be aimed at constructing a comprehensive prevention system with three dimensions: general deterrence, special deterrence and deterrence supplementation. In the dimension of general deterrence, benchmarks fine responsibility should be defined on the basis of the concept of social harm, fines should be "leveraged" to the best level of deterrence through law enforcement probability, and their tension with equity and justice should be correctly handle; in the dimension of special deterrence, the deprivation of illegal interests should be taken as the minimum standard of fine, and the intensity of fine should be adjusted according to the marginal change of illegal acts; and in the supplementary dimension of deterrence, the concurrence between fines and civil and criminal liabilities should coordinated.


Direction Right of Employer and Its Private Law Structure


Shen Jianfeng


Abstract: Employment management and work arrangement by employers are not only a legal fact, but also the exercise the direction right. The direction right is an independent labor relation coordination mechanism as well as an institutional expression of dependency labor. However, its general jurisprudential logic has been ignored in China for a long period of time. Its justifiability can be understood from different perspectives. From the perspective of legal dogmatics, direction right is based neither on public law authorization nor on organization management power, but on labor contract. Employers with direction right concretize labor contract obligations through unilateral manifestation of intention. Therefore this right is neither a dominant right nor a claim right, but a formation right. Based on characteristics of durable legal relationship, this formation right is a kind of filling formation right, which can be durable in good standing and exercised repeatedly. The filling formation right and the traditional negative formation right, which aims at transient legal relationship, together form a complete formation right system. From the perspective of balancing production organization requirement of employers and protection of employees, the direction right is subjected to hierarchical restriction as a residual right, to functional restriction as concretization of labor contract obligation, to object restriction as the right of production organization, and to rationality control as a discretionary right.


The Role of Consumer Perception in Copyright Infringement - From Right of Reproduction to Right of Making Available on Internet


Jiang Ke


Abstract: “Consumer perception” is a concept which currently appears only in the context of deep links and is rejected by “server test”. The narrowed perspective prohibits us from seeing the important role that consumer perception has played in the context of all other exclusive rights. Take the right of reproduction for example, “lay listener test”, “lay public test”, “ordinary observer test”, “reasonable observer test” and so on all point to “consumer perception”. Consumer perception is the most convenient tool to measure the level of market substitution and thus the impact of market harm. It is a vital element in copyright infringement. Back to the discussion of deep links, the proper way of decision-making is neither relying solely on “consumer perception” nor abolishing it altogether, but combining “consumer perception” and experts’ opinion regarding technical and business analysis.


On the Crystallization of the Property of Floating Charge


Li Li


Abstract: Floating charge is a security interest set up on current assets to provide working capital. This determines that the typical forms of the original personal property for floating charge are inventory and accounts receivable, and the ‘floating’ is also determined by the nature of the property in the operation of the mortgagor. Provided that the floating charge has been registered, the focus of institutional building should be to trace, identify and control the equivalent of the mortgaged property. The system of crystallization of the property of floating charge in the Chinese Civil Code fails to grasp the nature of floating charge and, as a result, leads to the problem of improper reduction and unreasonable expansion of the scope of floating charge property, and to the question of whether it would affect the priority time of the floating charge. A feasible solution to this problem is to take Article 396 of the Chinese Civil Code as the crystallization system, interpret this system only at the level of determination of the attributes of real rights under the premise of registration antagonism, introduce the idea of proceeds from Article 9 of the Uniform Commercial Code, expand and reinforce this idea in judicial interpretation, and determine the priority of the proceeds through the identification of proceeds, the continuation of the publicity, the determination of the scope of the floating charge property, and the combination of temporary and long-term publicity, and in light of the relevance of the original collateral and the legal effect of the proceeds. The introduced proceeds system is compatible with the pursuit of free disposal of mortgages, the classification of floating charge assets and the types of charges in China and, as such, can promote the maturity of the legal system of personal property charge.


Building the Institution of the Director’s Duty of Monitor in Listed Companies


Lu Chenglong


Abstract: In its long period of law enforcement practice, China Securities Regulatory Commission has gradually shaped the concept of "duty of monitor" to hold directors accountable. Some regulatory documents and industrial self-discipline regulations have also increasingly emphasized directors' supervisory responsibility in the governance of listed companies. However, this so-called duty of monitor not only is questioned for its normative basis, but also has ambiguities in its connotation and applicable conditions. This is not conducive to promoting the standardized governance of listed companies, and sows hidden risks in public and private law enforcement. Both the existing law enforcement practice in China and experiences in other countries show the sufficient practical necessity of the director’s duty of monitor. China should clearly provide for this obligation in the upcoming revision of the Company Law. Furthermore, the duty of monitor should include the following two aspects: first, the duty to establish and improve internal control, information collection and monitoring systems; and second, the duty to carry out timely and active investigations when noticing abnormality in the company. Meanwhile, considering the differences in the time period, degree and legal characters of their participation in corporate governance, independent directors and non-executive directors should not be treated the same as executive directors in the evaluation of the duty of monitor.


Determination of the Legal Interest in the Crime of Infringing upon Citizens’ Personal Information


Ma Yongqiang


Abstract: The legal interest protected in the crime of infringement upon citizens’ personal information does not meet the qualifications for a supra-personal legal interest, nor does the personal information of citizens have a supra-personal attribute. Interpreting the legal interest in this crime on the ground that it presupposes the protection of legal interest may lead to the risk of undermining the principle of legally prescribed punishment for a specified crime. The understanding that citizens’ personal information has supra-personal attribute also lacks a basis in pre-existing laws. According to human rights law, including the Constitution, the Civil Code and other prescriptive laws, the personal information of citizens has clear individual right attributes. The significance of personal information protection in criminal law is embodied in the protection of personal information self-determination and the personal interests of social interaction (such as personal and property security). The public value of citizens' personal information should also be positioned derivatively in the personal attributes of citizens' personal information, which is specifically manifested in citizens’ respect for public values as a restriction on citizens' right to personal information self-determination. Accordingly, the legal interest protected in this crime should be summarized as citizens' right to personal information self-determination and the related interest in social interaction. This understanding can not only explain the limitation of the victim's consent in this crime, but also provide a further theoretical basis for judging the amount of the crime and the degree of infringement upon legal interests in this crime.


A Review of the Amendment Model of the Revision of the Criminal Procedure Law


Guo Shuo


Abstract:Unlike the two previous revisions of the Chinese Criminal Procedure Law in 1996 and 2012, the 2018 revision of the Law was completed in the form of an "amendment" passed by the Standing Committee of the National People's Congress. The basic law positioning of the Criminal Procedure Law in the Chinese system of law and the legal hermeneutic analysis of such key terms as "inter-sessional period" and "partial supplementation and amendment" in the Constitution and the Legislation Law indicate that the legal resources for revising the basic law in the form of amendment are insufficient. This is especially true for the Criminal Procedural Law, in which “a slight move in one part may affect the system as a whole”. If this practice continues in the future, the basic aspects as well as the stability and authority of the law will be negatively affected, and the institutional threshold for limiting civil rights will also be lowered. In order to give equal consideration to both the seriousness and flexibility of the revise of the Criminal Procedure Law, China should on the one hand strictly restrict the basic law amendment power of the Standing Committee of the National People’s Congress through the three elements of time, quantity and framework stipulated in the relevant provisions of the Constitution and the Legislation Law, and on the other hand, carry out quasi-legislative reform of the judicial interpretation of the Criminal Procedure Law under the precondition of strictly complying with the principle of legal reservation.


Standardization of Sentencing Recommendation in Cases of Pleading Guilty and Accepting Punishment


Wang Gang


Abstract: As the core issue in the implementation of the system of pleading guilty and accepting punishment with leniency, sentencing recommendation is the object of wrestling among all parties involved in a criminal trial, including the prosecutor, the defendant, the judge and the victim. The rationality of sentencing recommendation determines the outcome of cases of pleading guilty and accepting punishment, and affects the implementation effect of the system of pleading guilty and accepting punishment with leniency. The precision of sentencing recommendation has limited relevance to the value goals of the system of pleading guilty and accepting punishment with leniency. The focus of research on sentencing recommendation for cases of pleading guilty and accepting punishment should be shifted from the precision of sentencing recommendation to the standardization of sentencing recommendation. To this end, a rational sentencing recommendation mechanism should be constructed and specific problems in the formation of sentencing recommendation should be solved. On the basis of distinguishing natural offenders and legal offenders, a bipartite and two-dimensional indicator system of leniency for pleading guilty and accepting punishment should be constructed by taking the stage of pleading guilty and accepting punishment as the key link and the degree of repentance as the content, so as to promote the standardization of sentencing recommendation for cases of pleading guilty and accepting punishment.


Procedural Rights of the Duty Counsel from the Perspective of the Substantiation of Legal Aid


Cai Yuanpe


Abstract:The 2018 revision of the Criminal Procedure Law and the promulgation of the related judicial interpretations have failed to put an end to the debate surrounding the duty counsel. Legal status does not necessarily determine procedural rights. The question of what procedural rights a duty counsel enjoys still needs to be answered through the interpretation and analysis of specific rules and legal values. An analysis of articles 173, 36, and 190 of Criminal Procedure Law by such methods as textual interpretation, system interpretation, and purpose interpretation shows that the law has clearly granted duty counsels the right to meet their client, the right to consult case files and the right to take evidence, and established a procedural mechanism to ensure the realization of these rights. To solve the problem of formalism of legal aid in practice, scholars have put forward two approaches: "transformation of duty counsel into defense lawyer" and "full coverage of pretrial defense". However, these two approaches not only are impractical, but can also negate the independent value of duty counsel. A feasible solution to this problem is to realize the substantiation of legal aid by taking procedural rights as the core, to take procedural rights of duty counsel seriously, to improve the mechanism for safeguarding these rights, and to encourage and supervise duty counsels to actively exercise these rights. The biggest question faced by criminal procedure law is not how to modify the law, but how to implement the law.


The Encounter Between Regulatory Study and the Study of the Law on Collective Labor Relations – An Observation Based on the American Sample


Yan Tian


Abstract: In the past several decades, comprehensive dialogues and mutual constructions have been carried out between regulatory study and studies of branch laws. American scholarship on the law of collective labor relations is a good sample to observe this phenomenon. The encounter between regulatory study and American labor law scholarship is divided into two phases: the first one was a phase of total detachment and the second one was a phase of limited contact inspired by the theory of responsive regulation. Compromises on conceptual and value issues made the encounter possible, and such compromises were motivated by considerations of real-world politics. While the prospect of the encounter seems not optimistic in America, it would face fewer obstacles in China once initiated. The research on the encounter can help Chinese scholars to deepen their understanding of the concepts, values and evolution of regulatory study and the study on the law on collective labor relations and explore effective approaches to advancing regulatory study in China.


Transnational Recognition of Surrogate Parentage: European Experience and Options under Chinese Law


Huang Zhihui


Abstract: Procreative tourism and limping surrogate parentage are the results of different attitudes taken by different countries on surrogacy. With regard to the transnational recognition of surrogate parentage, the importance of genetic links between the commissioning parents and the surrogate child has been highlighted by the European Court of Human Rights in interpreting the right under Article 8 of the European Convention on Human Rights (ECHR). This position has also led to active recognition by contracting parties of ECHR of the domestic legal effect of transnational surrogate parentage on the basis of the right to the respect for private and family life and the need to protect the best interests of the child. A state’s position on the recognition of transnational surrogate parentage essentially involves an appropriate balance between the protection of fundamental rights and the maintenance of public order. It is necessary to address both the legal obstacles arising from the transnational movement of persons and families and the demands of a state for the maintenance of moral ethics and social order on which a balanced legal order in the international society of cultural and value pluralism will be formed. China should implement the principle of the best interests of the child, take genetic linkage as the standard to adopt a transnational recognition mode and a transnational adoption mode to ensure the stability of surrogate parentage.