Global Law Review(4-2021)

Source: | 2021.07.27  


Jurisprudential Interpretation of the Principle of Seeking Truth from Fact


Zhang Yan


Abstract:The theory of seeking truth from facts is the theoretical essence of the Sinicization of Marxism and the theoretical cornerstone of the thought of socialist rule of law with Chinese characteristics. The legal system is always reconciling the relationships among cognition, norm and practice. Seeking truth from facts is a procedural theory that deals with such relationships. It consists of five links: proceeding from reality, claiming correctness, theoretical justification, practical test and reaching consensus. From this point of view, seeking truth from facts, as a political principle, is embodied in the exploration and correction mechanism, the justification and test by practice mechanism, and the prudence and rationality mechanism in the Party regulation system with the Party Constitution as the core. In the political and legal system with Chinese characteristics, in which Party regulations and state laws are unified, seeking truth from facts plays an important role in realizing the guidance of state laws by Party regulations. In the field of legislation, it eases the tension between scientific legislation and democratic legislation, and helps to maximize legislative consensus; In the judicial field, it is embodied in the principle of strictly following the rules of evidence in terms of “fact”, the principle of innocence until proven guilty in terms of "truth", and the principle of correcting errors according to law in terms of "seeking", thereby preventing dogmatism of the presumption of innocence, procedural justice and other formal values, and realizing the objective and fair judicial judgment to the satisfaction of the people.


On the Purchase Money Security Interest - Focusing on Article 416 of the Chinese Civil Code


Wang Liming


Abstract: The Purchase Money Security Interest (PMSI) in the Anglo-Saxon legal system has its rationality and therefore is transplanted into the Chinese Civil Code as Article 416. The institution of PMSI is by nature an exception to the first-to-file rule established by Article 414 of the Chinese Civil Code. The establishment of PMSI objectively strengthens the debtor's solvency, enhances its financing capacity and balances the rights and interests of the parties more appropriately. Although the scope of application of Article 416 of the Chinese Civil Code is not specified in this provision, it should be interpreted in a restricted manner, i.e. it applies mainly to the field of floating charges and should not be overly extended to the field of security over movable assets. To do otherwise would completely hollow out the first-to-file rule and unduly infringe upon the interests of prior security rights holders, particularly in the case of fixed charges. The PMSI also has its own specific conditions and effects of application.


The Sources of Litigation Involving Agricultural Land – An Analysis Based on Judicial Big Data


Sun Xiaoyong


Abstract: In the context of deepening the construction of smart courts, the results of the informatization construction of many courts have provided new tools for observing social contradictions and strengthening the management of litigation sources. Based on judicial big data, this article analyzes lawsuits involving agricultural land nationwide from 2016 to 2020. By summarizing the new characteristics of the sources of these lawsuits, it shows that the causes of litigation involving agricultural land are complicated. They include: changes in various rural land systems, such as rural land contracting system, homestead system and rural collective commercial construction land system; the implementation of a series of national rural development strategies, such as agricultural and rural modernization, the transformation of agricultural policies, new-type urbanization development, rural revitalization strategies, and the change of household registration system; elements of market economic environment, such as the rise of the value of rural land and the increase of risks of market operation; and the implementation of judicial reform measures, such as the reform of the judicial openness system, the registration system for the docketing of cases, and the litigation fee system. In order to adopt targeted measures for the management of the sources of litigation involving agricultural land, China needs to have an accurate understanding of the above-mentioned factors. Judicial big data research can provide a reference for the construction of a social management framework suitable for dynamic changes in different regions and at different times.


The Construction of Individual Business Income Tax Liability


Ye Shan


Abstract: Whether the individual business income tax liability occurs or not depends on whether the individual obtains taxable income by engaging in industrial and commercial operations. The 2018 Amendment to the Chinese Individual Income Tax Law integrates specific object categories such as "income from production and operation of individual businesses" into the abstract uncertain legal concept of "operating income". Thus, the scope of nominal tax payers is expanded to cover all individual operators who obtain operating income, including individual businesses, investors of sole proprietorship enterprises, individual partners of partnership enterprises, contractors, lessees, individuals, etc. A natural person has the right to decide whether to register as a market participant. The liability for individual business income tax should be constructed on the basis of tax horizontal equity: vertically, it is divided into the main payment obligation of tax payment and the subordinate payment obligation of tax declaration; horizontally, it is divided into the tax liabilities of different types of individual operators, whose tax burdens should be basically equal. The determination of individual income tax liability customarily relies on the method of verification collection. However, the content of tax liability is no longer determined by tax elements, which is contrary to the principle of tax fairness. Therefore, the collection method of checking accounts should be applied as far as possible.


The System Integration and Dogmatic Structure of Proprietary Substitution


Zhang Jing


Abstract: Proprietary substitution arises in the situation where a property right is detached form its object and continues to exist on the substitute. It has a function of preserving the original legal relationship and averting the occurrence of unjust enrichment. Proprietary substitution includes general proprietary substitution and special proprietary substitution. The former takes place in the situation of separate patrimony, such as the entrustment of property, legacy, subsequent succession, bequeath and marital property, whereas the latter includes ownership substitution, substitution of the right of use, substitution of the right of security, substitution of privileges and substitution in judicial attachment. Proprietary substitution requires the proprietor’s suffrage of damage and the existence of a substitute. General proprietary substitution is applied ipso jure, and the consequence is that the relationship of separate patrimony remains unchanged. In contrast, special proprietary substitution is only possible in situations recognized by law. The legal consequence of special proprietary substitution is that the proprietor obtains automatically a new property right that resembles the original right to the largest extent, such as the acquisition’s retroactivity and the preservation of the original right’s priority. Controversies exist as to whether proprietary substitution should, like unjust enrichment, be recognized as a general rule.


The Liability of the Client and the Auctioneer for Breach of Contract – Also on Article 40 (1) of the Chinese Auction Law


Zheng Zhen


Abstract: In the legal relationship of auction, if the buyer fails to obtain the object of auction in accordance with the agreement, under normal circumstances, the liability for breach of contract should only be borne by either the client or the auctioneer. However, under certain circumstances, the buyer may also demand that the client and the auctioneer be jointly and severally liable. The question of which subject should bear the liability for the breach of contract depends on in whose name the auctioneer acts. If the auctioneer acts in the name of the client, the client shall bear the liability for breach of contract; if the auctioneer acts in his own name, he himself usually bears the liability for breach of contract, but there are exceptions. In determining the exemption from liability for breach of contract, it is necessary to examine the performance of the notification obligation by the auctioneer and the client, and whether there are "self-contradictory" and "unclear" exemption clauses. The liability of the client and the auctioneer for breach of contract is only stipulated in Article 40 Paragraph 1 of the Auction Law. This paragraph should be understood by being placed in the Chinese Civil Code and the system of relevant laws, and systematically interpreted through a comprehensive examination of the practices of the auction industry, among others.


The Basis and Application of the Revision of Age of Criminal Responsibility from the Perspective of the Theory of Penalty Responsibility


Li Chuan


Abstract: As a result of the unclear nature of the age of criminal responsibility, there are different views on the revision of the age of criminal responsibility, such as the lowering theory, the constancy theory, and the individual exception theory. The age of criminal responsibility is determined on the basis of the nature and position of criminal responsibility, and should have the dual attributes of culpability and penalty responsibility. The debate between the lowering theory and the individual exception theory is the debate between the psychological culpability theory and the normative culpability theory within the culpability theory; and the debate between the lowering theory and the constancy theory embodies the conflict of views between culpability and penalty responsibility. The revision of the age of criminal responsibility in Amendment (XI) to the Criminal Law puts too much emphasis on culpability, resulting in the limitation of understanding, and it is urgent to conduct a necessary review from the perspective of the theory of penalty responsibility. From the perspective of the theory of penalty responsibility, it can be seen that the new revision of the age of criminal responsibility conforms to the basis of the theory of penalty responsibility in such aspects as the purpose of punishment, the ability to adapt to punishment, and the necessity of punishment. In the further review of the specific application of the provisions on the revision of the age of criminal responsibility from the perspective of penalty responsibility, the crime and circumstances of the crime should be determined on the basis of the purpose and necessity of the penalty and the purpose of the ability to adapt to penalty should be used to provide the substantive judgment standard for the examination and approval by judicial organs


The Right of Defense Giving Way to the Right to Life - Theoretical Basis of the Prohibition of Extreme Defense


Wei Chao


Abstract:As the guiding principle of justifiable defense, "rights do not need to make concessions to illegality" should be observed under any circumstances. The "no defense theory" deprives the defenders of their right to defend when they face unlawful infringements. And the theory of social ethics restriction has the risk of conflating morality with law. Self-accountability is not the justification basis for justifiable defense. Therefore, none of the above viewpoints can be a reason of extreme defense. Against the background of the state's legal monopoly of violence, the right to defense, as a legal right that enables citizens to infringe upon the rights of others in a state of emergency for the protection of their own legal interests, should conform to the basic requirements of the Constitution. According to the principle of prohibition of excessiveness”, resulting from the combination of the obligation of protection and the principle of proportionality in the “defender-state-offender” triangle relationship, when an offender infringes upon only minor legal interests, the constitution still has the obligation to protect his right to life. The defender is not allowed to carry out extreme defensive act against the offender not because a right must give way to illegality, but because the right of defense must give way to the right to life.


The Theoretical Evolution of the Interests Weighing Theory in the German Criminal Evidence Prohibition


Wang Yin


Abstract: After a hundred years of exploration, Germany has established a systematic criminal evidence prohibition theory, in which the interest weighing theory has obtained a dominate status in the mutual advancement of dogmatic theories and precedents. The interests weighing theory takes the illegality of the evidence collection procedure and its legal consequences as its core contents. The degree of procedural violation and the severity of the crime are the core weighing factors at the substantive level; at the legal consequence level, there are three different consequences: use of evidence, prohibition of evidence and the third paradigm. Under the inquisitorial system, China should improve the exclusionary rules of illegal evidence based on the idea of promoting the legislation and administration of justice with theory, adopt progressive logic approach of “act illegality – consequence illegality – punishment necessity/responsibility” to the exclusion of illegal evidence, promote the systematic construction of evidence exclusionary rules through dogmatic theory, and provide theoretical support for discretionary exclusion in judicial practice. Meanwhile, the principles and rules of discretionary exclusion should be established, and the leading position of discretion of judges and precedents should be strengthened.


The “Intelligible Principle” in Judicial Review of Legislative Delegation in USA


Dai Di


Abstract:The “intelligible principle” in US law requires the Congress to lay down the intelligible principle for administrative agencies or other bodies when delegating legislative powers to them. However, as administrative power plays a more important role and the number of broad delegation rises, the intelligible principle faces difficulties in its application. The judicial practice in US shows that the Supreme Court, while generally accepting broad statutory delegations, has not entirely loosened its restraint on such delegation. On the one hand, the Court has strengthened its review of administrative rule-making process, so as to ensure that administrative agencies act within the scope of the delegated power; on the other hand, the Court has prohibited administrative agencies from making major decisions that are of great significance or excessively affect civil rights without explicit delegation. These measures reflect new approaches to restraining delegated legislative power that are different from the traditional approach, which concentrated mainly on clarity of the delegation itself. Considering the widespread use of broad delegation in practice, the aforementioned development of intelligible principle may provide some inspirations to China in ensuring the legality of administrative legislation.


Local Remedy Rules of the Host State in Investor-State Arbitration – From the Perspective of the US-Mexico-Canada Agreement


Song Junrong


Abstract: The US-Mexico-Canada Agreement provides for local remedy rules that are worth learning by China in many respects. Nevertheless, it does not clearly define the arbitral tribunal's power to review the judicial decisions made in the host state. Moreover, it adopts a relatively strict standard to define the ineffectiveness of the local remedies. In the practice of international arbitration, the mandatory procedural prerequisites for investor-state arbitration should include judicial remedy, which covers only lawsuits filed on the basis of the domestic law of the host state. The word "exhaustion" should be replaced by "obtaining final judgment". Moreover, certain time limit should be imposed on local lawsuits. At the same time, a final judicial decision should have the res judicata effect on issues in the exclusive domain of domestic law. The approach of treaty interpretation could be adopted to deal with the situation where an international investment treaty does not include a futility exception. The "obviously futile" standard should be adopted to determine whether local remedies are ineffective. There could be an exception based on certain industries. China should optimize the local remedy rules in five aspects.


Corporations - Interaction Between International Law and Domestic Law as a Solution


Wang Huiru


Abstract: The judicial remedies for human rights violations by transnational corporations is not only an important part of the UN’s business and human rights agenda, but also a major challenge to the establishment and improvement of the mechanism for a proper accountability of transnational corporations. However, under the state-centered international human rights law implementation system, judicial remedies for human rights violations by transnational corporations often face many legal and practical obstacles, including the jurisdiction dilemma, corporate veil barrier, lack of legal regulation, and procedural and evidential problems. In order to balance the ideal of international human rights law and the realistic dilemma under national governance, and reduce or eliminate the above obstacles as much as possible, efforts must be made to promote a positive interaction between and coordinated development of domestic law and international law. On the one hand, international law guides and promotes the development and reform of domestic law, the formation of basic consensus on jurisdiction issues, legal integration and conceptual convergence of corporate human rights responsibility, and international judicial assistance and supervision by all sectors of society; on the other hand, the development and implementation of international law depends on the will and actions of sovereign states, so it is necessary to take into account the development level of domestic law. As far as China is concerned, only by taking into account the relationships between state sovereignty and human rights and between human rights and development, and re-examining and improving the existing legal system, can we build a fairer, more reasonable and more effective judicial remedial system and improve the transformation and implementation of international human rights law.