Global Law Review(3-2021)


Xi Jinping’s Thought on the Rule of Law and the Construction of the Rule of Law in China


Jiang Bixin


Abstract:“Construction of Rule of Law in China” is a strategic and forward-looking theoretical and practical proposition put forward by Comrade Xi Jinping at the critical period of great rejuvenation of the Chinese nation as well as a major innovation made by Xi Jinping’s Thought on the Rule of Law in the theory of socialist rule of law with Chinese characteristics. Aimed at constructing the rule of law in China, Xi Jinping’s Thought on the Rule of Law provides theoretical and practical basis for and stresses the necessity, the importance and the urgency of the construction of the rule of law in China. It describes the basic form of the rule of law in China and stresses such principles as upholding the Party’s leadership, putting the people first, adhering to the road of socialist rule of law with Chinese characteristics, guaranteeing and promoting social justice and fairness, safeguarding rights and restraining power, modernizing the state governance system, being subordinate to and serving the overall interests of the Party and the State, and combining ruling the country by law and ruling the country by high moral standards. It points out the basic direction and puts forward the primary tasks, theoretical guidance, general guidelines, general plan for advancement, key links, key tasks of as well as concrete approaches to the construction of the rule of law in China. On the basis of designing the concrete steps of construction of the rule of law in China, it forms a complete theoretical system of and provides theoretical and practical guidance for the construction of the rule of law in China.


The Criterion of “Obviously Inappropriate” in Judicial Review of Administrative Acts


Zhou Youyong


Abstract: To overcome the ambiguity of the criterion of “obviously inappropriate”, which is an independent criterion on administrative discretion in judicial decision, three critical techniques, namely comparison of similar cases in factual review, application of rule in legal review and balance of interests in principle review, have been developed in Chinese judicial practice. Therefore, in terms of its connotation, the criterion of “obviously inappropriate” means not only impartiality in fact, but also compliance with legal provisions in norms and rational substance and balanced interest in value. The subjective criterion of “misuse of authority” and the objective criterion of “obviously inappropriate” represent the principle of “anti-value acts” and the principle of “anti-value results”, respectively, in administrative discretion, and accordingly constitute two independent and coordinated criteria in judicial review. Subjective negligence or objective misconduct may only constitute “obviously inappropriate conduct” but not “misuse of authority”. As far as judicial review of procedural discretion is concerned, it is necessary to consider its connection to the consideration of substantive interests. The “obviously inappropriate” criterion can be met only when a substantive or legitimate interest is impaired by a procedural flaw.


The Ethics and Law of Allocation of Scarce Medical Resources in Public Health Emergencies


Peng Chun


Abstract: Public health emergencies lead to an extreme shortage of medical resources, that cannot be eased by such measures such as increasing resource input, reducing resource waste or emergency resource deployment, how to allocate these resources becomes an unavoidable problem. From the three moral standpoints of deontology, utilitarianism and egalitarianism, criteria such as lottery, queuing, prognosis, number of lives, years of life, instrumental value, reciprocity, condition of illness, age and economic status can be used to determine the priority in allocation of scarce medical resources. However, each of these criteria has its own advantages and disadvantages and cannot be used independently to decide the priority in the allocation of medical resources, which means trade-offs and balancing among these criteria are inevitable. Therefore, it is necessary for China to draw on overseas experiences, base itself on the principles of fairness, efficiency and dynamics, combine multiple standards, and construct an ethical plan for the allocation of scarce medical resources in public health emergencies in the following order of priority: medical staff, first-comers, people with higher risk of infection or the more seriously infected, the better short-term prognosis, and the winners of lottery. The ethical plan also requires the establishment of supporting legal rules and the adjustment and improvement of relevant legal systems in the three aspects of the form rule-making, enforcement body and relief mechanism, including adopting a set of rules on the allocation of medical resources in the form of soft law, giving the decision-making function to medical ethic committees and unblocking the channels of complaint, review and litigation.


The Rule of Anonymization in Personal Information Protection in China and Its Alternatives


Qi Yingcheng


Abstract: The rule of anonymization tries to free information processors from their obligations of personal information protection by completely eliminating the possibility of identification contained in personal information. However, it is faced with difficulties in theory and obstacles in application. The root of the so-called the “myth of anonymization” lies in the fact that the rule aims to make an either-or judgment on the nature of information and a “one-size-fits-all” decision on whether to thoroughly cut off the obligations of personal information processors. In reality, however, the identifiability of personal information is usually not an all-or-nothing relationship, but shows different degrees of identifiability. Considering the remaining risks it contains, it is unreasonable to completely exclude the anonymized information from the application scope of personal information protection legislation. In the future, China should transform the personal information protection legislation from the current integral regulatory model to a differentiated regulatory model based on the categorization of identifiability of information, construct a multi-layered system of information protection obligations based on the identifiability contained in specific kinds of personal information, and treat the anonymized information as a kind of personal information with low level of identifiability, so as to achieve a dynamic balance between the protection and utilization of personal information.


Rules and Standards in Antimonopoly Legal Norms


Jiang Shan


Abstract: China has been continuously accumulating experience in the regulation of monopolistic behaviour during the implementation of the Anti-Monopoly Law over the past decade. However, the understanding of antimonopoly law norms as a whole has not been improved in general and many vague ideas remain to be clarified. To improve this situation, it is necessary to identify the rules and standards in the antimonopoly legal norms. The legal norms concerning horizontal monopolistic agreements and the notification of undertaking concentration are rules in nature, while the legal norms concerning vertical monopolistic agreement, abuse of dominance, and the review of undertaking concentration are standards in nature. Thus, in the process of the law application, we should adhere to the rule – standards categorization and explore the way to integrate standards into the statutory law. Only in this way can we establish and maintain a consistency of legal interpretation and stability of law application, and achieve a substantive justice through combined application of rules and standards.


Jurisprudential Reflection on the Concept of Social Law: The Pragmatic Definition and Core Propositions


Ding Xiaodong


Abstract: The concept of social law is a basic issue in the study of social law in China. A review of the debate on this issue in China shows that the concept of social law has been used at different levels. The middle sense of social law defines social law in the sense of research object and research field, while the broad sense of social law defines social law in the sense of research method, both of the two definitions are reasonable in their respective contexts. An analysis using the theories of philosophy of language and pragmatic jurisprudence shows that words and concepts do not have essential meanings. We should adopt the problem-oriented pragmatism to define words and concepts. Starting from the problem-orientation of institutional research, we can extract and refine the three core propositions of inequality, sustainability and externality in social law. Understanding social law from the perspective of these three core propositions enables us to better grasp social law from the perspective of institutional research, and also to better learn from foreign academic research, thereby forming a relationship of mutual reference and mutual complementation between social law theory, traditional public law theory and private law theory.


Between Rigidity and Arbitrariness: Empirical Scale of Criminal Justice Decision-Making


Sun Hao


Abstract: The intake of rules of thumb often plays a pivotal role in the criminal justice decision-making process. If operated improperly, it will inevitably lead to unsatisfactory conclusion by the adjudicator, even trigger the questioning and rejection of judicial justice. As far as the consequences are concerned, it may either cause a rigid phenomenon of mechanical justice, or inevitably lead to a tendency to abuse power. For this reason, the application of empirical knowledge must be maintained within reasonable scale boundaries and placed in the framework of the rules of reason. Furthermore, the symbiosis nature of experience and theories of theory is highlighted. In the legal implications of specific cases, the extent to which judicial personnel understand and use this rule will directly affect the final decision-making trend. Even if there is only a slight deviation, it will inevitably be based on the mixed facts and opinions or other factors, which will cause the judgment's conclusion to be unfair. Through the analysis of a series of classical cases, this article shows the characteristics and operational mechanism of empirical paradigm in such fields as entity identification, evidence trade-off and procedural discretion.


Normative Function and Practical Application of the Standard of Proof in the Chinese Criminal Justice System


Wang Xingyi


Abstract:Although the principle of “beyond all reasonable doubts” has been embodied in the Chinese Criminal Procedure Law, the legislative goal of “unifying the subjectivity and objectivity of proof standard” has not been achieved. On the contrary, the objectified proof standard has been reintroduced and gradually strengthened in practice. There are still many theoretical mists that need to be penetrated in the field of criminal proof standard in China. These confusions are caused by the fact that criminal proof standard takes the guarantee of the accuracy of fact-finding as its legislative function. The pursuit of certainty has exceeded the cognitive ability of the adjudicator, thus leading to the practice of the objectification of proof standard. The normative function of proof standard actually lies in the allocation of adjudicative errors, which relieves adjudicators of the burden of adjudicative errors resulting from subjective judgment, while at the same time preventing them from making arbitrary adjudication based on their personal value judgment and abusing inner conviction. The practical goal of proof standard is to realize adjudicator’s judgment based on common sense, which must be proved by fact. To this end, it needs to take the inner conviction of the adjudicator as its institutional premise and the adversarial argumentation as its procedural basis.


Residual Doubt in Capital Sentencing: Leeway Judgment in US Law


Chen Hu


Abstract: Because American criminal justice has adopted beyond reasonable doubt as the standard of criminal proof, residual doubt exists between the high probability and absolute certainty. Although residual doubt would not result in the verdict of not guilty, it plays an important role as a mitigating factor in capital sentencing, which can reduce the quantity of death penalty, and result in the American-style leeway judgment. Due to the institutional construction differences of the two-steps structure in capital sentencing, relief after conviction, death row waiting, etc, the American-style leeway judgment will not cast doubt on the justifiability of verdict, but instead can better realize the death penalty policy and reduce the risk of wrongful verdict in capital cases. As such, it can provide some useful institutional inspirations for the improvement of similar practice in China.


The Development Logic of the Legislative System of the Crime of Conflict of Interest in US and Its Revelations for China


Wei Changdong


Abstract:After more than 150 years of development, a "troika" structure of the crime system of bribery has formed in the United States. The crime of conflict of interest was established in the mid-19th century and, after experiencing three changes and transformations, became the focus of modern bribery legislation system in the United States in the mid-20th century. This crime is based on the violation of public duties and aims to eliminate the public interest risk resulting from the public and private interests paradox faced by public officials. The establishment and systematization of this crime has broken through the "power – benefit" relationship structure of the traditional bribery crime, adjusted the position of "result departmentalism", and creatively constructed a new type of "power – duty – benefit" structural relationship outside the traditional mode of structural relationship. By clarifying the connection between "abusing power" and "seeking profits", it has shifted the focus of legislation from transaction prohibition to interest conflict. At present, the Chinese bribery legislation system has the problems of single orientation and conservative position. The modernization of this system can be achieved only by taking positive governance as the guidance and introducing the legal interest orientation of conflict of interest.


Investor Suitability Rules in Capital Market: US Experiences and China's Explorations


Li Hailong


Abstract: The suitability rule in capital market has long been highly ambiguous and uncertain, and there are various problems in its application in China. Overseas experiences show that the duty of suitability is a legal duty rather than a contractual one, and the liability for breaching it should be a tort liability in nature. As the two main institutions providing professional advice, there is a clear division of business between broker-dealers and investment advisors, with the former usually assuming the duty of suitability to investors and the latter the fiduciary duty. In light of their business differences the practice of separate supervision under U.S. law should be followed, that the broker-dealers and investment advisors should not be included in a framework of unified duty standard. The classification of investor risk tolerance level and financial product risk level are important steps to complete the "know-your-customer" and "know-your-product" process, respectively, but it is not easy to complete a reasonable division and accurate matching, and there is no generally recognized method yet. A reasonable disclosure system can serve as a temporary alternative to overcome the above difficulty. The U.S. judicial practice of the suitability rule has been plagued by inconsistency of standards and difficulties for investors in providing evidences, which has led to a shift in the resolution of suitability duty related cases to arbitration awards. This is in line with the purpose of investor protection. Drawing on its experience, the arbitration should play an more important role in this field in China.


Rethinking of the Construction of the “Belt and Road” Rule of Law System


Liu Jingdong


Abstract: With the successful advancement of the construction of the “Belt and Road”, the building of the “Belt and Road” rule of law system has also entered into a critical stage. Since the worldwide outbreak of the Covid-19 pandemic, the tension of geo-economics relations has been continuously intensified by geopolitics and the legal risks faced by “the Belt and Road” construction is becoming more and more complicated and showing high-degree particularity. China must carry out precise and carefully researches on these risks and put forward reasonable countermeasures, so as to promote the high-quality construction of the “Belt and Road” rule of law system. Apart from the traditional risks faced by international trade and investment, the special legal risks faced by the construction of the “Belt and Road” include those resulting from the lack of transparency in major cooperation projects, backward domestic trade and investment laws and the fragmentation of international trade rules, technical standards and the international investment and commercial disputes resolution systems of “Belt and Road” partners. At current stage, China should, in light of the above-mentioned legal risks and based on the principle of “achieving shared growth through consultation and collaboration”, closely cooperate with its “Belt and Road” partners in studying and developing new measures for preventing and defusing these risks, so as to lay a solid foundation for constructing the “Belt and Road” rule of law system.