Global Law Review(2-2022)





Information as Punishment - A Defense of the Right to Be Forgotten


Zhai Xiaobo


Abstract:The right to be forgotten (RTBF) is the right to demand the elimination of the relationship of identifiability between nonprivate information and an individual, a typical example of which is the right of erasure. Its subjects do not include public figures, its dutybearers are those who control or process online information, its object is lawfully disclosed and usually correct information, and its content is the elimination or severance of the relationship of identifiability between the information subject and the information. The dominant approach to justifying RTBF is to consider it as part of the right to privacy. This approach is questionable. The private information of an individual can and ought to be protected by means of the concept and institution of the right to privacy, rather than by resorting to RTBF, which does not take private information as its object. An information subject normally exercises his or her RTBF and requests the deletion or deidentification of some information because he or she thinks that the information is negative; and the main reason that he or she thinks so is that the information is indeed negative. A typical example of this kind of information is the information about the crimes or violations of law that the information subject has committed. The moral ground of RTBF is the principles of just punishment. In the digital era, the moral ground of just punishment embodied in the system of criminal record elimination and the system of the period for prosecution in the criminal law also constitutes the ground of RTBF, and requires that RTBF be established as a basic right of the information subject. However, this paper does not think that RTBF represents a new type of right. RTBF is essentially the extension in the digital era of the right not to be punished unjustly that is protected by the system of criminal record eliminationand the system of the period for prosecution. Such extension mainly refers to the extension of the scope of information: it first extends from information about crimes to information about all violations of law and morality, and then further extends to all the information that the information subject hopes to be deleted or deidentified. The fact that the information subject hopes to delete or deidentify certain information shows that the existence of the information in public domain has caused pain to him or her, or that the inaction of the information processor or controller has inflicted pain to the information subject, and thereby constitutes punishment for the latter, even if the former shows no such explicit intention. If the former refuses to delete or deidentify the information, it must justify its infliction of punishment upon the information subject by giving sufficient moral reasons. The extension also applies to the dutybearers of RTBF: the dutybearers in the system of criminal record eliminationand the system of the period for prosecution are public authorities, whereas the dutybearers of RTBF include private subjects. The key issue here is not whether they are public or private subjects, but whether they have the power of processing or controlling the information.


Treating the Social Structure of Personal Information Protection Seriously - The Challenge of Asymmetry in the Era of AI Technologies


Yang Jian


Abstract: China provides a rather broad policy space for the application of AI technologies, so as to ensure their rapid development. After the accumulation of megapractices, China has started to actively use laws to ensure its leadership in the AI industry. This paper is devoted to a general moral analysis of the social structure under the influence of this widespread use of AI technology. In terms of analysis, there are two types: conceptual and practical. Many scholars in China confuse the two types and draw a number of conclusions that either exaggerate or miss the focus. Conceptual analysis has cognitive priority, and it is also the main and primary work of jurisprudence. However, conceptual analysis cannot replace practical analysis, nor can it be used directly as an answer to practical questions; these two types of analysis are distinct and relatively independent of each other. Mixing them or restoring practical analysis to conceptual one will undermine the quality of the argument and lead to the most common and fatal fallacy of practical analysis  false factual premises. This paper is a practical analysis of the practical challenges posed by AI technologies. As such, it answers the questions of how the structure of human interactions and social relations has changed under the impact of AI technologies, and what issues in such changes are most important and need to be redressed most urgently. It argues that the “comparative perspective of human and AI” commonly adopted in existing studies is wrong because it is based on false factual premises, which expands the conceptual space of practice analysis too broadly for the practice argument to be really sound and real. This paper turns to “interpersonal relationships under the impact of AI technologies” as the analytical perspective, and uses “asymmetry” as the analytical concept, claiming that the application of AI technology is subject to and reflects the overall morality and fairness of the society in which it is used. Just as the big data used by AI technologies is itself valuebiased and can be evaluated as good or bad, algorithmic bias and algorithmic injustice are a technical fact in AI applications. The most jurisprudential social challenge posed by AI today is that it alters the actual state of power domination in democratic relations, which in turn makes the exercise of coercive power less justifiable. In the face of a growing crisis of public trust, both tech giants and governments need to renew their oath of fidelity and win back public trust. This paper concludes by distinguishing between the two kinds of jurisprudence, elaborating the latter as a generalized solution to the grand challenge of the AI era


Application and Limitation of Informed Consent in the Performance of Government Duties


Zhao Hong


Abstract: The Chinese Personal Information Protection Law establishes the protection model of “publicprivate coexistence”, which also brings the behavior of state organs in dealing with personal information into the scope of regulation by legal norms. Although public data law and private data law share the value goal of protecting personal information and promoting information circulation and data utilization, they differ from each other in many ways in specific development. The application of the principle of notification and consent is a typical example of this difference. The ethical basis of informed consent is the right to personal information selfdetermination. As a basic right, the right to personal information selfdetermination directly refers to the two core aspects of human dignity: “human subjectivity” and “free development of personality”. Its purpose is to prevent individuals from becoming a pure object of data processing in the era of big data. Recognizing the right of selfdetermination of personal information as a basic right not only has no contradiction with this right being a private right at the same time, but also helps to shape the panoramic protection of the right of information in public and private domains. Different from private data law, in which informed consent occupy a dominant position, in public law, not only public authorities should be exempted from consent when performing their statutory duties and obligations, but also the notification as the premise of consent is reduced to “limited notification”. The reasons for the reduction of informed consent from a principle to an exception in public data law include the concession of individual rights to data public welfare, and the possible weakening of public law enforcement ability caused by the application of this principle to the field of public law. However, informed consent is also rooted in the right to personal information selfdetermination as a basic right. Its essence is to uphold and emphasize the subjectivity and selfdetermination of will of the individual in the data age. Therefore, the above application restrictions do not mean complete exclusion. The limitation on exemption from informed consent lies not only in the interpretation frame of “performance of legal duties and obligations”, but also in the correction of the lack of informed consent by other principles. The judgment of “performance of legal duties and obligations” should start from the authority rather than the subject, but this will lead to the problem of scope overflow, which must be corrected by the condition of “being necessary for the performance of legal duties or obligations”. The government’s consent exemption in the performance of duties is not absolute. The Personal Information Protection Law still stipulates the circumstances under which consent is required, especially with respect to the processing of sensitive personal information. And because the individual’s control and domination of his or her personal information are deprived to a large extent without his or her consent, it is more necessary to strike a careful balance between the right to personal information and the public interest of data, and to prevent the unlimited collection and use of personal information by public authorities through the principles of legitimacy, necessity, clarity of purpose and restriction of purpose.


Formulating the Rules for the Protection and Utilization of Publicly Disclosed Personal Information


Liu Xiaochun


Abstract: Currently, there are three legislative models for publicly disclosed personal information around the world, reflecting different value orientations. The EU GDPR does not separately stipulate publicly disclosed personal information, but provides applicable space through principles such as “legitimate interest” and “public interest exception”. The United States excludes specific disclosed personal information from the scope of protection. In China, the rules for the protection and utilization of publicly disclosed personal information have been established in the Civil Code and the Personal Information Protection Law, but their application is still controversial in practice. Typical disputes include handling government public information, public information processing in search engines, etc. Compared with the EU and US legislative models, China’s model has its own unique features: it reduces the right of personal decision to the right of “optout”, but retains the right of individuals to refuse and set no exception to this right. From a theoretical point of view, on the one hand, publicly disclosed personal information has public feature, embodying public interests such as the public’s right to know, freedom of information, and freedom of speech. On the other hand, it is still the object of private rights protection in nature, only the exercise of these rights are subject to certain restrictions. A necessary flexibility of the boundary between public interests and private rights needs to be maintained to adapt to actual dynamic needs. In the establishment of rules for the protection and use of publicly disclosed personal information, situations of legal disclosure should be classified into five categories, namely direct disclosure by individuals on their own initiative, disclosure with individual consent, government disclosure, media and public opinion disclosure, and disclosure by other individuals or corporations, and full consideration should be taken of the type of personal information disclosure, the sensitivity of personal information itself, the type of information processing behavior and other factors in the determination of the standards on the application of the rules, including the information processor’s duty of care regarding legality determination, reasonable scope of information processing behavior, whether it has a significant impact on personal rights, the exercise of the right to refuse and its exceptions, etc. The determination of “reasonable scope” should not be limited to the scope of the purpose of the initial disclosure. In the case of government information disclosure, public opinion supervision, and search engines, exceptions should be created for the individual’s “right to refuse”, so as to ensure that the public interest embodied in publicly disclosed personal information is protected, prevent excessively high costs of using public information, and develop and improve the system of rules on the protection of publicly disclosed personal information.


“Personal Information Publicly Disclosed” as a Legitimate Cause for Processing - Jurisprudential Basis and Application of Rules


Ning Yuan


Abstract: “Personal information publicly disclosed” is listed in Article 13 of the Personal Information Protection Law as a legitimate cause for personal information processing. Compared with other legitimate causes, the application of this cause is not limited to the protection of a specific interest. As a result, it may have such problems as possible limitation by the whole personal information protection system and excessive flexibility in application. Thus, it is necessary to clarify the legitimate jurisprudential basis, essential elements for establishment and application limits of this cause. “Personal information publicly disclosed” can be divided into two types: information disclosed voluntarily and information disclosed by legal compulsion. As far as jurisprudential basis is concerned, the processing of voluntarily disclosed information is justified on the presumption that the subject consents to the processing activities, whereas the processing of mandatorily disclosed information is justified on the basis that its purpose is consistent with that of mandatory disclosure. As far as its essential elements are concerned, the disclosure of information that can be treated as a legitimate cause must meet two conditions: the information is objectively in the state of being disclosed and the information is lawfully disclosed. Disclosure is a nonsituational concept used to describe the accessibility of information, meaning that the information is in a state of being disclosed and accessible to any third party. The specific judgment of the state of openness is based on whether the information is disclosed through the open channel of information communication, taking into account the functional attributes of the channel and the scope of the persons who can have access to it. Voluntary disclosure requires the subject to show a clear willingness to disclose the information, including express willingness in written or oral form and implied willingness expressed by independent and definite behavior. Compulsory disclosure should conform to the relevant laws and administrative regulations. As far as limits of application are concerned, firstly, the processing must be reasonable. The purpose of processing must be objectively consistent with the purpose of disclosure. However, the objective consistency of purposes does not exclude the processing for the economic benefit or other subjective purposes of the processor. Secondly, legality blocking effect of the processing may occur if the subject expressly refuses the processing. If the subject expressly refuses the processing by another person of the information he or she voluntarily discloses, the other person may not continue the processing of the information. If the subject expressly refuses the processing by another person of his or her information that has been disclosed by legal compulsion, the continued processing can still be legitimate only if the processing is necessary for the purpose of compulsory disclosure and the adverse effects caused by the processing on the subject are proportional. Finally, the processing which may cause a high risk of infringement, such as processing of disclosed but sensitive personal information, is not exempt from the consent rule from the beginning.


Definition of the Concept and Identification of the Elements of Sensitive Personal Information - An Analysis Centered on Article 28 of the Personal Information Protection Law


Wang Yuan


Abstract: Sensitive personal information meets the requirements of riskbased legislative approach, which is an important legislative trend in the international protection of personal information. This important system has also been established in the Personal Information Protection Law. The purpose of strengthening the protection of sensitive personal information is to prevent the unreasonable disclosure or abuse of this kind of information, which can easily lead to infringement upon or harm to human dignity and personal or property safety of the individual. Article 28 of Chinese Personal Information Protection Law adopts the legislative model of “general clause + enumeration” in defining sensitive personal information, and provides that “‘sensitive personal information’ means the personal information of which the leakage or illegal use could easily lead to the violation of the personal dignity of a natural person or harm to personal or property safety”, while at the same time lists seven types of “typical” sensitive personal information, namely “information on biometric identification, religious beliefs, specific identity, health care, financial accounts, and personal whereabouts, and personal information of minors under the age of fourteen”. The first part of this article reviews and reflects on the current legislative model in China and points out that the “general clause + enumeration” definition of sensitive personal information may bring uncertainty in many respects: firstly, the vagueness of appraisal leads to unclear conceptual boundary; secondly, the development of technology may continue to give birth to new types of sensitive personal information, such as behavioral data; and thirdly, the multidimensional nature of judgment standard means that whether a piece of information is sensitive or not cannot be judged solely by the nature of the information. The second part of this article carries out a comparison between the Chinese mechanism and the similar mechanism in EU’s General Data Protection Regulation, in which the legislator picks the term “special categories of personal data”, rather than uses the term “sensitive data” directly. Meanwhile, General Data Protection Regulation regulates “special categories of personal data” in a contextual basis, namely, prohibiting processing in principle and allowing processing in some very specific contexts, thus avoiding the uncertainty caused by a vague general clause. In contrast, Article 28 of the Chinese Personal information Protection Law is to a certain extent a general provision that lacks specific classification standard. The third part of this article attempts to dynamically define sensitive personal information within the framework of contextual integrity, in which five elements, namely information subject, information processor, thirdparty, nature of information and purpose of information processing, are considered in a comprehensive way. The fiveelement standard is conducive to a dynamic definition of sensitive personal information, helps relevant departments reasonably identify specific standards of sensitive personal information, and enables judges to make scientific and reasonable decisions on disputes over the infringement upon the right to personal information in judicial practice.


On Rights Infringement and Surrender of Benefit


Hong Kuokseng


Abstract: Remedies related to surrender of benefit are aimed at preventing and inhibiting conducts calculated to result in profit. The mainstream view that this problem can be dealt with through unjust enrichment or gestio negotiorum is worth rethinking. The essence of conducts calculated to result in profit is to encroach on the entitlement of others without transaction. The aforementioned two solutions to this problem are based not on the regulation of the tortfeasor’s behavior, but on the ownership of rights. This issue should be dealt with within the framework of tort law. The Calabresi & Malamed framework provides theoretical guidance for tort law to deal with this problem. The surrender of benefit for such infringement actually involves two different kinds of tort remedy. The first kind of remedy is compensation damages for economic value, which aims to compensate for the infringement on the economic value of exclusive entitlements. The legitimacy of such compensation is based on the exclusivity of property rights. Such compensation should be calculated by negotiating damages. According to MorrisGarner v One Step (Support) Ltd, negotiating damages can be award in tort, breach of contract, or equity. When the court awards for tort, negotiating damages assessed by reference to the value of the use wrongfully made of property, measured by what a reasonable person would have paid for the right of user, are readily awarded at common law for the invasion of property rights. According to Lloyd v Google LLC, a claim in tort for misuse of private information would naturally lend itself to an award of user damages. The intention or negligence of the tortfeasor does not affect the establishment and determination of the amount of such claim for compensation, and the benefits obtained are the factor for determining the objective economic value of the exclusive right. However, if the tortfeasor only needs to compensate for the value of the infringed entitlement regardless of whether there is a transaction, then people no longer have the incentive to trade with the entitlement holders. This renders the property rules meaningless. The second kind of remedy is disgorgement damages or accounting of profit, which aims to maintain the property rules and ensure the effective operation of the property system. Intentional use without trading is a negation of property rules, which has many negative effects on the operation of price mechanism, the efficiency of resource allocation, trading market and tort law system. Tort law removes incentives for people to bypass transactions through disgorgement damages. Although disgorgement damages are less functional than punitive damages, the profits obtained by the tortfeasor can still be considered as a limiting factor in the calculation of the amount of punitive damages. Article 1182 of the Civil Code of the People’s Republic of China provides for both negotiating damages and disgorgement damages. It should be understood as applicable to situations where personal rights and interests with economic value are infringed on. The limitation on the scope of application of this article is widely supported by judicial practice.


The Money Laundering Crime System in China - Application Dilemma and Legal Interests Identification


Shi Fang


Abstract:Based on the international requirements for strengthening the fight against money laundering, China has constructed a money laundering crime system in criminal law, with the crime of money laundering in Article 191 as the core and the crime of disguising and concealing proceeds of crime and income derived from proceeds of crime in Article 312 and the crime of hiding, transferring or concealing proceeds from drug crime in Article 349 as the supplements. An analysis from different dimensions, such as the scope of regulatory objects, the nature of infringement upon legal interests, the function of the fight against the money laundering crime, and the applicable rules of charges, reveals different characteristics of the regulation in the system of money laundering crime. In judicial application, there are some problems with the relationship between the crime of money laundering and booty crime, such as chaotic identification of behavior mode, loss of recognition function of legal interests, and logic error in distinguishing the scope of upstream crimes, which lead to difficulties in selfconsistency of theoretical logic within the money laundering crime system and disputes in judicial application. A review of the provisions of foreign criminal laws and international conventions on the legal interests of money laundering crime shows that the crime of money laundering in foreign countries covers China’s regulation of booty crime in terms of regulatory connotation, but is significantly different from the financial regulation order of money laundering crime and the recognition of composite legal interests in the normal activities of judicial organs in China. The legal interest view of financial control order plays an indispensable role in maintaining national economic security. It is a powerful supplement and response to the legal interest view against the background of prevalence of the idea of free economy. In view of the disconnection between financial means and the identification of money laundering methods, the identification of the financial order legal interests of the crime of money laundering should be based on the result of financial regulation failure, namely the transformation of the funds obtained from specific upstream crimes into lawful funds, so as to be more in line with the legislative style of the crime of money laundering in the Chinese criminal law and better meet the requirements for the protection of financial regulation order in China. Because the scope of upstream crimes has become the applicable judicial standard for distinguishing the crime of money laundering and booty crime and the scale of the proceeds of upstream crimes and the probability and closeness of the commission of money laundering activities have a direct impact on the security of currency circulation and financial regulation, it is necessary for China to appropriately expand the scope of upstream crimes of money laundering to cover the illegal income generated by telecom fraud, Internet gambling, pyramid selling scam and tax crime, so as to coordinate with the international trend of strengthening the fight against money laundering crime.


Reflections on and Improvement of the Mechanism for the Application of the Death Penaltyin Cases of Intentional Homicide


Wang Fuchun


Abstract: There is a large space for the interpretation of the conditions for the application of death penalty in criminal law. The academic circle has put forward the view of judging whether a crime is extremely serious and whether the death penalty should be executed immediately in light of the circumstances of liabilitybased punishment or preventionoriented punishment. However, there is a big gap between this view and the practice of discretion in the application of the death penalty. It is therefore necessary to change the direction of the research on the application of death penalty, reflect on the existing theory of discretion in the application of the death penalty through the comparison between what should be and what is, and try to improve the existing mode of death penalty discretion. The empirical analysis of these samples shows that the model of discretion in the application of the death penalty is similar to an assembly line with two different processes: in the fist process, the judge only uses part of the circumstances of the case to decide whether the act constituting the crime of intentional homicide is extremely serious and whether to impose the death penalty; and in the second process, the judge decides whether the death penalty should be imposed without a suspension of execution based on the remaining circumstances. The group experience of judges shows that the normal sentencing starting point of intentional homicide crime is the death penalty with a twoyear suspension of execution, and the judge’s sentencing process is closely related to a few key circumstances, such as recidivism, the forgiveness given by the victim’s relatives, and the victim’s fault. In the exercise of discretion in specific cases, the judge sometimes makes a subtraction based on the higher starting point of sentencing, that is, in principle, the death penalty with immediate execution is imposed,, and the execution of the penalty can be suspended as an exception only if leniency can be sufficiently justified by other circumstances. Sometimes, an addition is made on the basis of the lower starting point of sentencing, that is, the death penalty with a suspension of execution is generally imposed in principle, and the death penalty with immediate execution is imposed, as an exception only when the circumstances of the crime are serious enough. Summarizing the current death penalty discretion mechanism as a subtraction mechanism on the basis of imposition of the death penalty with immediate execution is not in line with the practical situation. The theory of simply transforming it into the addition mechanism only has limited explanatory power and cannot be applied to all cases. With the help of the group experience of judges, this study proposes that the concepts of “extremely seriousness of the crime” and “immediate execution is essential” in the application conditions of the death penalty be shaped into several common plot combination types of the stepped sentencing mechanism, and then the remaining circumstances be comprehensively considered, so as to improve the discretion in the imposition of the death penalty in cases of intentional homicide. Compared with the solution provided by the doctrine of criminal law to the problem of the application of death penalty, this research conclusion based on practical science is also a more feasible reference.


Judicial Review Standards for Cases of Compulsory Vaccination in the US - Legal Legacy of the Jacobson Case and Controversies Over It


Li Guangde


Abstract:The constitutionality of compulsory vaccination law has become an important issue in the US public health legal system. During the trial of Jacobson v. Massachusetts, the first case of compulsory vaccination in the United States, the Supreme Court, based on the review standards of rationality and through an argumentation framework consisting of legality of purpose and rationality of means, upheld the legitimacy of the exercise of state police power in maintaining public security and health, and ruled that it was justifiable to sacrifice certain individual freedom for the sake of the legal interests related to public security and health. In fact, with respect to public security and health, the Court is inclined to support the priority of the measures taken by various legislative and administrative organs. Over the past a hundred years, the Court, in accordance with the loose review standards drawn from Jacobson, has remained calm and chosen positively when dealing with public security agenda and, therefore, succeeded in safeguarding the rights of citizens, building society and maintaining order, and greatly benefiting not only the US itself but also the whole world. The nation as a brandnew liberal society evolves. Nevertheless, the U.S. Supreme Court strongly insists that states are entitled to exercise the police power for the common good purpose of public security and health, which undoubtedly interferes with citizens’ personal freedom. As a result, Jacobson has always been controversial in the U.S. With the advancement of medicine and vaccination technology, new vaccines designed to tackle with nonairborne diseases have been released from time to time. Whether compulsorily vaccination complies with the review standards and jurisprudence set up by Jacobson or not is still a question to be answered. Some scholars suggest theoretically to classify vaccination by medical necessity and practical necessity, and bring up other concepts such as the right to be free from compulsory vaccination, the right to refuse unwanted vaccination and the right to refuse vaccination derived from the right to refuse medical treatment, thereby laying a solid theoretical foundation for compulsory vaccination to embrace strict scrutiny criteria. So far, Jacobson and its rational review standards have not met with any challenge yet. Although NFIS v. OSHA (2022) invalidated the vaccine mandate issued by the federal government, it involved only constitutional interpretation, not the application of the review standards. The legal legacy left by Jacobson to public health governance will continue in the US.


Identification of “Discriminatory Restrictive Measures” in China’sAntiForeign Sanctions Law


Zhou Yanyun


Abstract: “Discriminatory restrictive measures” are the prerequisite for the initiation of countermeasures and blocking mechanism. However, China’s AntiForeign Sanctions Law does not clarify the connotation, extension and identification criteria of “discriminatory restrictive measures”. How to accurately identify “discriminatory restrictive measures” has become a problem urgently to be solved by legal scholars. “Discriminatory restrictive measures” is an uncertain legal concept which is highly general and abstract, and vague in substantive connotation and extension. The specific approach to the identification of this concept is concretization, namely accurately defining the concept through the clarification of its conceptual basis, connotation, extension, legal criteria and identification order. First of all, the legislative aim, purpose, value and basic principles of the Chinese AntiForeign Sanctions Law are the conceptual benchmarks for identifying the concept of the “discriminatory restrictive measures”, which are helpful to defining the macro boundary of the concept. Secondly, “discriminatory restrictive measures” should be identified in compliance with theoretical standards and within the scope defined by the connotation and extension of the concept itself. The broad definition of the extension of “discriminatory restrictive measures” is the natural requirement for scientific identification of this concept. “Discrimination” is the substantive connotation of “discriminatory restrictive measures”, which includes various forms of unfair and unequal treatment of China by foreign countries. Thirdly, the identification of “discriminatory restrictive measures” should follow the legal benchmark. In order to ensure the legitimacy of China’s countermeasures at the international law level, the identification of “discriminatory restrictive measures” should not conflict with the basic principles of international law, international jus cogens, international customary law and international treaty rules that are binding on China. Finally, the identification of “discriminatory restrictive measures” should follow a reasonable sequence of identification operation to ensure the accuracy of the identification conclusion. First of all, applicators of law should analyze whether the identified object meets the precondition for identification. Then, they should analyze whether the identified object belongs to “discriminatory restrictive measures” according to the theoretical standards and legal benchmark, and form a preliminary identification conclusion. And finally, the correctness of the preliminary identification conclusion should be checked through legal negotiation.


The Implementation Mechanism of Blocking Law and Its Implementationin China


Ding Hantao


Abstract: Enacting a blocking statute is an important way to confront the unjustified extraterritorial jurisdiction exercised by other countries. In general, a blocking statute consists of a public law enforcement mechanism and a private law remedy mechanism. The public law enforcement mechanism blocks the extraterritoriality of foreign laws by punishing the entities who comply with foreign laws or measures which are based on unjustified jurisdiction grounds. The private law mechanism entitles entities to claim compensation from parties who initiate or benefit from unjustified extraterritorial application of foreign laws or measures in a national court. Although the adopting state of a blocking statute can directly refuse to recognize the extraterritorial effect of foreign laws or measures in its own territory, the domestic law nature of the blocking statute determines that it cannot block the de facto binding force of foreign law on private subjects in its own country. Empirical evidences show that the function of blocking statute could be realized more by three indirect approaches: regulating the private entities’ compliance activity to diminish the extraterritorial effect of foreign laws or measures; providing opportunities to influence the comity analysis by the US courts; and stating the standpoint to gain concession in diplomatic coordination. There are prerequisites for the realization of each of the above three approaches. With respect to the first approach, legislator must set a high, certain and predictable penalty standard to deter entities from complying with foreign law rather than the blocking statute. With respect to the second approach, the US courts would not apply comity principle unless there is a positive enforcement record of foreign blocking statute. And with respect to the third approach, diplomatic coordination is also hardly obtained if the conflict of laws involves sovereignty or national security. China has already established a preliminary blocking system by enacting two legal instruments: Rules on Blocking Unjustified Extraterritorial Application of Foreign Legislation and Other Measures and AntiForeign Sanctions Law. However, these two legal instruments will be difficult to implement because they could not sufficiently satisfy the abovementioned prerequisites. On the one hand, the large discretionary powers of competent authorities under current rules may impair predictability. When enterprises face a dilemma between blocking law and foreign sanctions, they are unable to make a rational decision by comparing impairments. On the other hand, the two instruments have failed to define the scope and key terms of relevant rules, which impedes their application. Moreover, there is a lack of coordination between these two instruments and the existing civil law, civil procedural law and private international law in China. All these deficiencies will constitute obstacles to the implementation of these two instruments. In order to implement the blocking statute more effectively, Chinese legislator and competent authorities should take following measures: setting a clear standard on penalty; reporting the guiding cases and enforcement records regularly; defining the concept of “compliance”; and making a new blocking law at a higher level in the legislative hierarchy.