Global Law Review(5-2021)


Methods of Argumentation of the Miscellaneous Provision on the Powers of the National People’s Congress


Tan Qingzhi


Abstract:The miscellaneous provision on the powers of the National People’s Congress (NPC) refers to Article 62(16) of the 1982 Constitution, which provides that the NPC may “…exercise such other functions and powers as the highest organ of state power should exercise”. The provision is the most important elastic mechanism in the Chinese Constitution for dealing with new powers and a major constitutional issue that has both theoretical charm and difficulties. Based on the public law principle of statutory functions and powers and taking the normative source of new power as the standard, the miscellaneous provision on the functions and powers of the NPC have three successively higher-level contents: “other enumerated functions and powers” individually granted to the NPC by the Constitution and laws, “incidental functions and powers” necessary for exercising the functions and powers already enumerated in the Constitution and laws, and “inherent powers” in the context of major decision-making power. Based on the requirement of law-based and scientific exercise of powers, the above three categories of functions and powers have different argumentation methods. “Other enumerated functions and powers” are mainly confirmed through the identification and review of constitutional and legal norms, supplemented by textual interpretation when necessary. “Incidental functions and power” is mainly based on the teleological interpretation of NPC powers already enumerated in the Constitution and laws. And the justification of “inherent functions and powers” is based on the constitutional interpretation of structuralism, complemented by other argumentation resources, such as NPC’s competence of action and relevant practices and conventions. This system of argumentation method can guide the practice of new powers of the NPC and enhance the constitutional rationality and standardization of the operation of the NPC’s powers.


The “System-Function” Orientation of Administration of Justice in China


Shen Wei


Abstract: The issue of orientation of the administration of justice in China in the transitional period is in essence an issue of basic relationship between administration of Chinese judiciary and external society. Based on this understanding, this paper defines the administration of justice in China as “one kind of institutional, cumulative, peaceful and controllable instrument of planned social transition”. In this definition, "institutional" refers to the difference between administration of justice and non-institutional, unofficial and non-systematic strategies of social transition; "cumulative" emphasizes that administration of justice should and can promote social transition only "in a judicial way"; and "peaceful and controllable" highlights the advantages of promoting social transformation through administration of justice, namely avoiding transitional turbulence and reducing transitional risks. The justification of the unique role of administration of justice in China in promoting social transition "in a judicial way" does not equal to the confirmation of legal/judicial instrumentalism, because the former adheres to, whereas the latter abandons, the closed nature of the operation of the judiciary. Clarifying the system-function orientation of administration of justice in China is the theoretical starting point of understanding the functions and limits of administration of justice in China in the process of planned social transition. It can also reveal the reasons why administration of justice is indispensable to the modernization of state governance capacity and system in China and what limitations it has in this respect.


Legitimacy Bases and Rule-of-Law Reinforcement of Public Credit System – also on the Design of Rules in the Social Credit Law


Wang Wei


Abstract: Credit in the traditional sense mainly refers to economic credit that takes pecuniarily measurable economic credits and debts as its core. Public credit system, on the other hand, is an innovative system created by China in the process of constructing the social credit system. At present, there are still many different understandings of and divergent views on the public credit system. Public credit system has its legitimacy bases, including the legitimacy of purpose, the legitimacy of idea, the legitimacy of law and the legitimacy of instrument. However, what cannot be ignored is that the current public credit system has a low level of rule of law and the obvious problem of lack of legitimacy. Therefore, it is necessary to raise its level of rule of law in the aspects of substantive justice, formal justice and procedural justice. In the future, China should focus on the two key issues, namely the public credit legislative system and the regulation of public power, and create multilevel and multidimensional legislative expressions of the holistic values of public credit in the current system of law, while at the same time provide for “the public credit system” in a special chapter in the future social credit law, and establish a top-level public credit legislative system with the functions and powers of public credit agencies, the management of public credit information and the penalties for dishonest behaviors as the focuses of regulation.


Is the Openness of Government Data an Upgraded Version of Government Information Disclosure? – a Comparative Study Based on Institutional Frameworks


Song Shuo


Abstract: Openness of government data, which is an institutional tool of state governance reform in the digital era, has developed into an institutional framework essentially difference from government information disclosure. In terms of principle, it is demand-oriented, while also paying attention to the target needs of state governance and innovative application preferences of data users. In terms of the scope of openness, it adopts the dynamic adjustment method of catalog management to delimit the scope, focusing on the openness of high-value data in the economic and social fields and taking cost-benefit analysis into consideration. In terms of the mode of openness, it divides government data into two categories according to the classification of resources - completely open data and conditionally open data, so as to enhance the overall social benefits of data utilization. In terms of security guarantee, it takes such measures as security review, risk assessment, limited openness, monitoring and early warning, and emergency response for the openness of data of different protection levels at different stages. In terms of data utilization, it is characterized by two-way utilization, namely both the government and the public are data users. It standardizes data use behavior through open data licenses, which impose minimum use restrictions on users. In addition, it focuses on giving full play to the role of third parties to form a characteristic system that encourages third parties to open up non-government data resources, provide data analysis tools, and conduct evaluation of the effectiveness of openness of government data.


From “All-under-heaven” to “the World”: the Ancient-to-Modern Transformation of the Law of War in Late Qing Dynasty


Feng Zhengzheng


Abstract: The ancient Chinese law of war was the product of ancient Chinese people's view of the All-under-heaven. The significance of the view of All-under-heaven to the formation and development of the ancient Chinese law of war lies in the fact that it stipulated the people’s approach to the definition of war and the understanding of the relationship between the enemy and ourselves in war, determined the unique thinking of regulation of war behavior, and shaped the traditional Chinese mode of war behavior. Therefore, the 2,000-year-old ancient Chinese law of war can also be regarded as the "All-under-heaven" law of war. In late Qing Dynasty, the All-under-heaven law of war gradually disintegrated as a result of the military failure of the Qing Government, and its direct cause was the European law of war brought by the western colonists. The conflict between the All-under-heaven law of war and the European law of war was manifested in the concept of war, the subject of war, the rules of engagement, the restraint mechanism of war, etc., but behind it were different political philosophy systems, knowledge-power structures and the ideal pictures of the world. The ancient-to-modern transformation of the law of war in late Qing Dynasty had gone through the process from "the All-under-heaven" law of war to the law of war of "the nations" and then to law of war of "the world", which not only embodied Chinese subjective thinking and judgment, but also serves as a participatory construction force in shaping the globalization of the modern law of war. As such, it provides theoretical resources and practical references for exploring the Chinese plan for the governance of war in the new era.


Judgment Criteria and the Effect of the Qualification of Objects of Factoring Contracts


Zhan Shiyuan


Abstract: Chinese Civil Code does not set any limit articles on the objects of factoring contracts. The objects of factoring contracts should be limited by virtue of the inducing clause of Article 769. Based on this, future receivables and collective receivables should be restricted by the specificity of obligatory rights, receivables that are forbidden to be transferred and fictitious receivables are restricted by the transferability of obligatory rights. The dynamic system theory should be applied to make specific judgments on factors such as the cause, amount, and period of future receivables. Future receivables without specificity should not be the objects of factoring contracts. Collective receivables, as a specific type of collective obligatory rights, can become objects of factoring contracts. A distinction should be made between receivables with a transfer restriction agreement and receivables with a transfer prohibition agreement. If the former is taken as the object of a factoring contract, the creditor shall not be liable for breach of contract. If the latter is taken as the object of the factoring contract, the creditor shall bear the liability for breach of contract, and the debtor has the right to choose not to perform to the malicious factoring company. Fictitious receivables made by creditors and debtors shall be narrowly interpreted as a debtor’s act of falsely issuing written vouchers or admitting the receivables to the factoring company. The legal nature of the act is that the debtor deliberately gives false authorization to the creditor. Therefore, the debtor is exempted from liability only when the factoring company knows it.


Civil Code System Interpretation of Marriage Attributes


Li Yongjun


Abstract: Different from the previous contract law, Article 464 of Chinese Civil Code has made it clear that the relevant provisions in the book of contract may apply mutatis mutandis to marriage, indicating an intrinsic relationship between contract and marriage. As for the nature of marriage, there has been a long-existing dispute between contract theory and non-contract theory. A careful analysis of the structure and process of marriage shows that the process of marriage is different from the general contract conclusion process in that there is no negotiation process of “offer + acceptance”, but only the marriage consensus, which is expressed only to the registration authority at the time of registration. Engagement agreement is truly similar to the obligatory contract, and the conclusion of engagement is the real contract conclusion process – it has not only the process of “offer + acceptance”, but also the “bargaining” type of negotiation. This is the process of concluding a classic contract. However, marriage consensus is very similar to the conclusion of “in rem agreement”, and it is also “independent” and “abstract” compared with engagement - whether the engagement is valid or not doesn't affect the validity of marriage, which is “absolute”. Although the in rem agreement in civil law is an abstract and independent juristic act, once the cause behavior is invalidated or revoked, it will become an acquisition without “basis” and will be dealt with through unjust enrichment. However, the consensus of marriage registration is absolutely isolated from and unaffected by the cause. Engagement is not stipulated in Chinese Civil Code, and its validity is ambiguous in theory. The relevant provisions of the contract law should apply, mutatis mutandis, to the determination of the legal effect of engagement, but not to force marriage, and the liability for contracting fault can be found only within a narrow scope. Engagement does not have the nature and effect of “pre-contract” in the sense of general contracts (such as sales contracts).


Basic Principle and Normative Connotation of Property Damage Calculation – Interpretation of Article 1184 of the Chinese Civil Code


Wang Lei


Abstract:Article 1184 of the Chinese Civil Code, as the rule on property damage calculation, serves the function of quantifying damages in the logical construction of determination of the object of compensation and quantification of damages, but does not adhere to the idea of integration of the scope and the calculation of damages in the theory of full compensation. As far as the normative philosophy is concerned, Article 1184 adopts not the idea of "subtraction" on the basis of subjective calculation method, but the idea of "addition" on the basis of objective calculation method, and demonstrates the tendency of diversification of calculation through the expression of "other reasonable methods". That is to say, in addition to explicitly stipulating objective calculation method based on market price standards, Article 1184 can also lead to subjective calculation method and other diversified calculation methods through the expression of "other reasonable ways", thus showing a non-formulaic picture of calculation methods. In addition, when facing the situation of incalculability, discretion of damages, which is of the same nature as the calculation of damages, can perform the function of quantifying damages. In the absence of normative basis, it can be incorporated into Article 1184 and its legal textual basis can be established through the open expression of "other reasonable ways".


A Comparative Study on the Mode of Criminal Law Evaluation of “Legal Interest Recovery”


Zhuang Xulong


Abstract: The phenomenon of “legal interest recovery” exists objectively in various aspects of social life, and criminal judicial practice is no exception. “Legal interest recovery” is constituted if, after the criminal act stops in the accomplished form, the actor eliminates the danger or recovers the legal interest through voluntary and effective post factum act. The recovery of legal interest carried out voluntarily by the perpetrator after the completion of the crime is a rare and commendable manifestation of the return of humanity that should be given substantially lenient evaluation. With respect to the mode of theoretical analysis of the lenient evaluation of “legal interest recovery”, the theory of “discontinuation of dangerous crime”, by proposing that “there is still space for discontinuation of a crime after its completion”, essentially denies the choice of legislative power on accomplished crimes, and therefore is questionable in its scientificity; the theory of “substantial violation of law” traces “legal interest recovery” in the context of accomplished crime form back to the field of “violation of law” for substantive judgment, thus logically conflicts with criminal theory system. As a matter of fact, the criminal law evaluation of “legal interest recovery” has nothing to do with the criminal theory system, but is only related to criminal responsibility and criminal penalty discretion. In choosing the mode of lenient criminal law evaluation of “legal interest recovery”, substantive analysis should be carried out in the field of “responsibility" under the guidance of the basic principle of suiting responsibility and punishment to crime and on the basis of the judgment of “crime”. The scientific mode of criminal law evaluation of “legal interest recovery” can be described as the institutional building of “fusing of criminal responsibility” after the completion of the judgment of crime, by which the comprehensive evaluation of the criminal responsibility and punishment of the perpetrator as a whole can be completed.


The Legal Consequences of Illegal Entrapment - Recent Developments in German Criminal Procedure and Its Reference Value for China


Chen Zhennan


Abstract:In its judgment of “Drug Case in 2015”, the German Federal Supreme Court maintained the comprehensive approach to the legality standard of entrapment, but changed the approach to the legal consequences of entrapment from sentencing solution to procedural impediment theory. The direct cause was the judgment by the European Court of Human Rights, but the adoption of procedural impediment theory was fully in line with German criminal procedure legislation, criminal procedure theory and judicial practice. With the internationalization of criminal justice, the establishment of procedural impediment theory reflects the overall trend and provides China with a valuable reference for the perfection of its own rule of entrapment. China should based on domestic legal practice, reflect on the gap between the domestic system and the trend of development of international criminal justice, establish the basic position that “the state shall not punish the incited person if the state violates the law and incites a crime”, and adopt the procedural impediment theory.


Jurisdictional Immunities of Central Banks and Their Property: International Law and State Practices


Wang Leifan


Abstract: Jurisdictional immunities of central banks and their property is a controversial issue in the law of state immunity. It involves a balancing of multiple interests, including reasonable exercise of jurisdiction, protection of private interests, attraction of foreign investment, fight against terrorism and stabilization of foreign relations. The United Nations Convention on Jurisdictional Immunities of States and Their Property (the Convention) treats a central bank’s property as one of “specific categories of property” that enjoys immunities from measures of constraint, but it does not clarify the responsibilities of a central bank and that of its home State and the scope of the central bank property that enjoys the immunities. Recent state practices of Sweden, UK and US indicate that they prefer to distinguish the responsibilities of a central bank from those of its home State, and interpret broadly the scope of the central bank’s property for immunities. However, under the “terrorism exception” of the US Foreign Sovereign Immunities Act (1976), the immunities of central banks’ property are restricted or even completely deprived. In formulating relevant provisions on central banks and their properties in its State Immunity Law, China should carefully balance existing state practices, overall trend, requirements for RMB internationalization, etc, on the basis of compliance with the Convention.


Theory of Compensation for Ecosystem Services in Trans-boundary Water Allocation and Its Realization in the Context of a Community with Shared Future for Mankind


Qin Tianbao


Abstract: Current international water law mechanism leaves an unbalanced distribution of rights and obligations between upstream and downstream States, which lacks recognition of contributions to water quantities by upstream States and the protection of their future right to development, thus leading to potential conflicts between upstream and downstream States. However, the interest relationship between upstream and downstream States is not that of absolute conflict and antagonism, but that of interdependence, which is a reflection of the concept of "a community with a shared future for mankind" in many aspects, such as social and economic development, security and ecological conservation. Establishing a cooperation mechanism for the allocation of trans-boundary water and encouraging relevant States to protect the ecosystem is a win-win strategy conducive to promoting the interests of both upstream and downstream States. Based on the externality theory and with "the principle of beneficiary pays" as its core principle, ecological compensation is in line with the principles of international water law and could be extended to trans-boundary water allocation cases to mitigate conflicts and balance the interests of upstream and downstream States. Drawing on the experiences of other countries and taking a cooperative approach, China could negotiate with its downstream neighbors on such matters as a joint mechanism, funding and water allocation agreement, so as to establish an ecological compensation mechanism based on trans-boundary water allocation.