Global Law Review(6-2021)



Right to Data Portability and Distributive Justice of Data Governance


Wang Xixin


Abstract:Although the right to data portability has the functions of promoting personal freedom of choice, data circulation and re-use, and fair competition in the digital market, it may also lead to such problems as conflicts of rights and interests of multiple subjects of personal data connection, increase of the risk of data flow, obstruction of technological innovation, and reverse damage to fair competition. Different from the procedural justice value embodied in the right to know, the right to decision-making and other rights in the bundle of personal information rights, the right to data portability mainly involves the distributive justice of interests among multiple subjects in data governance. The nature and function of the right to data portability should be defined as a regulatory strategic tool in data governance from the perspective of balancing among personal information rights and interests, platform data rights and interests, data market competition order and innovation, and data security. Appropriate conditions of application should be set for the exercise of the right to data portability. China should adopt departmental and contextual methods to absorb the participation by multiple subjects, improve the procedural elements and mechanism arrangements in the regulatory mechanism, and continue to promote distributive justice through dynamic and reflective adaptation.


Entrusted Processing of Personal Information and the Crime of Infringement upon Personal Information – An Analysis Based on Article 21 of the Personal Information Protection Law


Zhou Guangquan


Abstract: Article 21 of the Personal Information Protection Law of the People's Republic of China contains detailed provisions on the rights and obligations of the two parties in an entrustment of personal information processing. In terms of criminal justice, in the process of entrusted information processing or data sharing by a third party, big data technologies provide lenders with financial supports and risk prevention and control services, without which financial platforms are bound to face great tests in anti-fraud and risk prevention and control operations. If the entruster is a practitioner in a gray field, the acquisition of personal information may not meet the requirements of informed consent, and if the personal information processed by the entrustee is not used properly, both the entruster and the entrustee may be involved in a crime, but the boundary between crime and non-crime is not clear. Therefore, it is necessary to carefully sort out the relevant provisions of the Personal Information Protection Law as well as the legal interests protected and the objective constitutive requirements in the crime of infringement upon personal information, so as to provide guidance for criminal justice practice and compliance by big data companies. Considering that, in the entrusted personal information processing, the obligations of the trustee are relatively light, and the business of the trustee is characterized by neutrality, it is not advisable to easily identify the crime of infringement upon personal information if the entrustee has taken reasonable protection measures.


On the Individual’s Consent in the Processing of Personal Information


Cheng Xiao


Abstract: In the absence of special provisions in laws and administrative regulations, the controller in the processing of personal information shall obtain the consent of the individuals whose personal information is collected and processed, otherwise the collection and processing of the information is illegal. The individual’s consent is neither the declaration of intention as the core element of juristic act, nor the permission of the subject in the commercialization of personality right. In terms of the nature of individual consent, from a negative point of view, it is a legal justification that excludes the illegality of objective invasion of the rights and interests of personal information, while from a positive point of view, it is one of the legal bases of processing of personal information. The defects of declaration of intention and the rules of revocation and withdrawal are not necessarily applicable to the individual’s consent in the processing of personal information. In order for an individual’s consent to be valid, the individual must have the capacity for consent and is fully informed, and the consent must be freely given, and specifically and unambiguously indicate the subject's wishes. There are both connections and differences among three types of consent in China’s Personal Information Protection Law: explicit consent, independent consent and written consent.


The Logic and Analysis of the Rules of the Protection of Personal Financial Information


Zhu Yunyang


Abstract: In China's legal system, personal financial information has always been valued, but its position has been unclear for a long time. Located in the overlapping area of personal information protection and financial market supervision, personal financial information is of great importance to the financial industry. Personal financial information has dual attributes, and carries values and interests of different levels. Both the application of analytical model of law and economics to the finance industry and the convergence of the rules of financial information sharing mechanism from international horizon provide justification for promoting financial information sharing. The balance between the two goals of personal financial information protection and information sharing depends on how to configure and coordinate different rules in the links of ex ante authorization, in-process empowerment and ex post accountability. In the application of the Personal Information Protection Law to the financial industry, we should not treat all personal financial information as sensitive personal information, but provide more comprehensive and legitimate reasons for dealing with such information. To protect the right to know of the subjects of personal information under the information sharing mechanism, the obligation of financial institutions to disclose information or give notices to consumers should also be strengthened.


Two Models of Constitution-making Theory and Their Order Isostructuralism


Wang Xu


Abstract: Constitution-making could be generally classified into two types – political and legislative constitution-makings. The former is a conceptual movement generating conceptual constitution, which bases its validity on the ideal condition, while the latter is an empirical action generating positive constitution, which bases its validity on social condition. A review of three typical theories of constitution-making shows that the nature of constitution-making is to build a state – to make a detailed inquiry into the question of whether a modern state, which has gotten rid of the mindset of teleological philosophy, could develop a constitution-making behavior as a language activity that has the expectation norm function of being more sensitive to social changes and more inclusive to the moral world, achieve the generalization of the free will of constitution-makers, and ensure the consistency of legal logic between political and legislative constitution-makings.


The Organizational Evolution of the Party’s Leadership over Legislation in China


Zhao Yidan


Abstract: The Party’s leadership over legislation involves two issues at the organizational level: the organizational carrier of leadership and the organizational relationship between the Party’s leadership over legislation and “the Party’s administration of political and legal affairs”. Under the system of Central People's Council, the hierarchical levels between the CPC Central Committee and specific legislative work departments had been continuously reduced, and legislative work had been incorporated into the category of "big political and legal affairs". Under the newly established system of the National People's Congress (NPC), the Central Political and Legal Affairs Group had gradually become the organizational carrier of the Party’s leadership over legislation, and the coordination between legislative work and political and legal affairs work continued. Since the reform and opening-up, China has gradually taken the Party Group of the Standing Committee of the NPC as the main channel of the Party’s leadership over legislation, carried out organizational adjustments around the NPC, and at the same time, achieved the separation between legislation and political and legal work. Since the 18th National Congress of the CPC, the CPC Central Committee has realized the organizational innovation of the Party’s leadership over legislation by strengthening the Party group building of the legislature and establishing the CPC Central Commission for Comprehensive Law-Based State Governance.


A Study of the Provisions on the Ages of Appointment and Retirement of Judges in China since the Reform and Opening-up


Liu Zhong


Abstract: The structure of rules can not be completely free from the influence of the will and emotion of individuals after its establishment. Judicial adjudication is a syllogistic process, in which the adjudication of factual issues as the minor premise depends on the judge's personal inner experience. Therefore, the age of judges has an important influence on judicial results. The age of judges is not a cognitive issue, but a theme of political governance. The attention to “people in justice” in the cognitive sense has been fully absorbed in political governance. In the US, in order to evaluate and test the political reliability of candidate federal judges, one of the selected methods is to lengthen the candidate's experience. Therefore, raising the initial age of judges is a basic practice. In addition, the special political structure of the US determines the tenure of judges, which leads to the widespread advanced age of federal judges in the practice. This has brought many disadvantages to the US justice system. The basic cadre policy in contemporary China is rejuvenation of cadres, which can avoid the unintended consequences of the excessively advanced age of judges. Based on the perspective of comparative law and the policy experience of contemporary China, policy makers have gradually gained rich experiences in how to distinguish ordinary judges from judges of different positions and ranks, and set different appointment and removal ages in the judicial reform. As a micro institutional component, the age of judges is of fundamental significance to the establishment of a good system and the realization of internal incentives.


Research on the Licensing of Administrative Agreement


Chen Guodong


Abstract:In order to distinguish between administrative agreement and administrative license and scientifically understand, and apply administrative agreement, it is necessary to explain the phenomenon of licensization of administrative agreement, which is widespread in practice. From the perspective of the evolutionary history of the system of agreement on the transfer of the right to the use of state-owned land, which originated from the administrative approval system, the licensization of administrative agreement has two manifestations: on the one hand, the substantive content of agreement is regulated by administrative license; on the other hand, the application and approval system of administrative license is adopted in the signing procedure. The root of licensization of administrative agreement lies in the publicness and limitedness of resources, which determine that administrative agreement must meet the requirement of legalization of the transfer of public resources through licensization. The high similarity between administrative agreement and administrative license in behavior structure and function provides the possibility of licensization in behavior form. However, in view of the diversity of the use of public resources, licensization does not mean that administrative agreement does not have independent value. The licensization of administrative agreement reminds us that administrative agreement on the transfer of public resources should be integrated with administrative license. Therefore, the system construction, dispute settlement and specific application of administrative agreement must fully respect and apply the relevant provisions and spirit of the Administrative License Law, and adopt the method of licensization.


Adjudicative Interpretation of the Person-Joining of a Limited Liability Company — Based on the Empirical Analysis of 220 Adjudicative Documents


Wu Feifei


Abstract: In Company Law, the person-joining of a limited liability company is a high-frequency vocabulary which is “easy to understand but difficult to explain”. Neither the Company Law nor the related judicial interpretations contain a clear statement of “person-joining”, but court judgments on 22 different types of disputes, such as disputes over share transfer, company judicial dissolution and shareholder qualification confirmation, all more or less focused on the interpretation and application of person-joining. The person-joining of a limited liability company appeared in adjudicative documents plays three functional roles: the basis of reasoning, the source of judgment, and the facts of case. Currently, the interpretation and application of the person-joining of a limited liability company by courts generally shows a tendency of over-inclusive “judicial formalism”. It is common for courts to avoid substantive review of person-joining on grounds of respecting company autonomy and to substitute review of shareholder consent mechanism for substantive judgment of person-joining. In fact, person-joining is only one characteristic aspect of a limited liability company. It is neither the core value attribute nor the supreme goal of a company. Judges should devote themselves to analyzing the legal logic and technical dimensions of person-joining, and make substantive reviews of and judgments on two levels of legitimacy: the purpose and the relevance between the purpose and the means.


Analysis of the Liability of a Securities Issuing Intermediary Agency for False Statement — From the perspective of Causality and Negligence


Ding Yuxiang


Abstract:From the perspective of causality, an intermediary agency may bear the whole or a part of joint and several liability based on different causal forces in the compensation liability for false statements. From the perspective of subjective fault, when there is an intention, the sponsor (lead underwriter) shall bear the whole joint and several liability, and other intermediaries shall bear the whole or a part of the joint liability. In the case of negligence, the sponsor (lead underwriter) shall bear a part of the joint and several liability for its professional negligence, and the presumption of fault shall apply; and it shall bear the share liability for its non-professional negligence. Other intermediaries shall bear a smaller part of the joint and several liability than the sponsor (lead underwriter) for their expert fault, and the presumption of fault is also applicable. They shall bear the share liability for their non-professional negligence. The final liability for compensation shall be determined on the basis of the comprehensive consideration of causality, intent, professional negligence and fault degree. After assuming the whole or a part of the joint and several liability, an intermediary institution may claim compensation from the controlling shareholder or actual controller of the issuer on the basis of the force of the cause and the degree of fault.


Multidimensional Reviews of American Long Arm Jurisdiction and China’s Countermeasures


Xu Qingkun


Abstract: The long arm jurisdiction in the US aims to break through the strict territoriality of traditional common law jurisdiction and empower courts to exercise specific personal jurisdiction over foreign residents. It originated from the case law of the U.S. Supreme Court and is mainly regulated by long arm statutes of each state. The related precedents emphasize not only the standard of minimum contacts, but also the notions of “fair play and substantial justice”. Later the “purposeful availment” and “foreseeability” doctrines and five considerations for justice have been developed. In addition to exercising its long arm jurisdiction in accordance with long arm statutes of a state or of the federation, federal courts may also exercise a special long arm jurisdiction when no state court can exercise jurisdiction over a case. The presumption against extraterritoriality of the federal statutes in recent federal precedents has the effect of limiting the scope of federal jurisdiction. Compared with Continental European law, the American jurisdiction relating to economic sanctions or economic regulations seems extraordinarily unique: the long arm statutes of states seem complicated and uncertain. The apparent differences imply the significant divergence between their notions of jurisdiction. China should take corresponding measures against different long arm jurisdictions of the United States. On the one hand, the individual case should be dealt with effectively. On the other hand, the national law on jurisdiction and the international law should be coordinated in the future.