The Regulation on an Equal Footing of Sexual Abuse of Boys and Girls by Chinese Criminal Law
Liu Renwen
Abstract: In modern society, the sexual abuse of boys has become a recognized high incidence crime in China and abroad, and is considered no different from that of girls in terms of its nature and social harm. To address this issue, the international community has amended relevant laws and adopted a legislative model that regulates the sexual abuse of boys and girls equally. At the same time, against the background of this general trend, the traditional Chinese legislation that focuses on protecting girls from sexual abuse and seriously neglects the protection of boys seems obsolete. Within this context, the de-gendering of criminal law in the field of child sexual abuse discussed in this paper has its own research value since it considers the need of protecting children's right to sexual health and contributes to a stricter and more stringent criminal policy on child sexual abuse. The author argues that Chinese criminal law should regulate the sexual abuse of boys on an equal footing with the sexual abuse of girls, so as to protect boys from sexual abuse and implement the requirements of the Constitution, the Law on the Protection of Minors and other domestic laws, as well as the Convention on the Rights of the Child and other international conventions regarding the equal protection of children's right to sexual health to which China is a party. Moreover, Chinese criminal law needs to regulate the sexual abuse of boys and girls in a systematic manner in order to improve the concept and techniques of the current legislation, close the loopholes in punishment, and solve the difficulties of law interpretation. For this purpose, the author proposes the following concrete measures: (1) to raise the age of a child in Chinese criminal law from the current 14 years or less to 18 years or less as stipulated in the United Nations Convention on the Rights of the Child, and to refine the description of various crimes of sexual assault against children and the age classification system under different circumstances; (2) to add a special chapter or section in the Criminal Law on "crimes against the right to sexual self-determination and sexual health", in which crimes against the right to sexual self-determination are crimes committed against adults and crimes against the right to sexual health are crimes committed against minors; (3) to change the legislative model in which the provisions on sexual offences against minors are subordinate to those on sexual offences against adults, and strengthen the subjectivity and independence of the offences and penalties for sexual offences against minors; (4) at the same time, based on the basic idea that the criminal law regulates the sexual abuse of boys and girls on an equal footing, proposes are also made for the improvement of legislation on the crimes of rape of young girls, indecent assault, organizing, forcing or enticing young girls into prostitution, trafficking in women and children and related crimes. The ideas mentioned above are of great practical significance against the background that the current criminal law academia is pushing the introduction of a new criminal code, and the criminal law legislative theory is once again in the spotlight.
Localizing Chemical Castration of Child Sex Offenders in China
Yao Jianlong
Abstract: In China, sexual assault on minors has become a public issue attracting extensive attention. The active response by the criminal law through its amendments in recent years has shown characteristics of making up gaps in laws combating crimes of sexual assaults on minors and imposing heavier punishment . Therefore, it is necessary to carry out an in-depth discussion on whether and how the public-opinion-called-for and controversial chemical castration should be localized in China. From historical and comparative perspectives, "castration" as a time-honored means of punishing and treating sex offenders, has developed from "surgical castration" to "chemical castration" under the appeal of modern humanism and questioning of its actual effect. Although its name is prone to controversies and misunderstanding, chemical castration is actually a relatively mature treatment measure by which hormone drug therapy is supplemented with psychological counseling to lower the recidivism rate of sex offenders. From a worldwide perspective, chemical castration has been set forth in legislation and applied in criminal justice, mainly to child sex offenders, in more than twenty countries. The legislation on chemical castration in these countries shows that the so-called voluntary application mode and the compulsory application mode differ only in the method and degree of compulsion. As for the localization of chemical castration in China, it is necessary to make a four-dimensional consideration of its legitimacy, feasibility, effectiveness, and necessity. Chemical castration is the result of the evolution of criminal justice from barbarism to civilization, and it is also a rightful choice that may be imperfect but necessary based on the principle of the best interests of minors. Its advantages such as maturity in technology, economy in cost, and excellent effect in preventing sex offences have been proved by foreign practice and research in the past a hundred years. The severe situation of sexual assaults on minors in recent years has also shown an urgent demand for chemical castration. As a reversible and mature measure of drug therapy, its introduction into China is feasible, necessary and justifiable, especially conducive to strengthening the protection of minors and mitigating the tendency of imposing excessive punishment on child sex offenders. As for the approach to its introduction into China, former experiences in introducing employment ban through the amendment to criminal law and turning the shelter and rehabilitation system into a system of special correction and education may be used as a reference. The concrete proposal is to add Article 37b to the Criminal Law through an amendment to set forth chemical castration as a new security measure applicable to child sex offenders through a decision made by a people’s court in light of the circumstances of the crime and the necessity of preventing recidivism. Accordingly, renaming it "drug therapy" is not only in line with its purpose and nature but also helps to eliminate the stigmatization caused by the previous improper translation.
A Comparative Study on the Constituent Elements of the Crime of Sexual Assault by Persons with Care Duties
Yang Jinbiao
Abstract: The crime of sexual assault by a person with care duties is a new crime added by Amendment（Ⅺ）to the Criminal Law of the People's Republic of China, adopted by the Standing Committee of the National People's Congress on December 26, 2020. With regard to the legal interests of this crime, there is a dispute between the singular legal interest theory and the compound legal interest theory. The former can't lay the foundation for the punishment of the crime, but the latter can. This crime protects female minors' right to sexual self-determination, and their healthy development of sexuality and normal sexual psychology, but social legal interests such as the normal operation of educational and medical institutions, public trust in these institutions, and sexual ethics among near relatives are not included in its scope of protection. The subject of the crime is a person with the duty of guardianship, adoption, nursing, education, medical care, and so on, and thus this crime is an identity crime. In determining whether a perpetrator is the subject of this crime, the formal and substantive aspects of the perpetrator's special duty need to be taken into consideration. The substantive aspect is decisive. It should be determined, firstly, whether a female minor's accurate judgment of sexual self-determination is affected by the special duty of the perpetrator in light of its specific content and, secondly, whether the perpetrator is under an obligation to protect the female minor's healthy development of sexuality and normal sexual psychology. It is not necessary for a person with the duty of guardianship or adoption to fully meet the formal requirements prescribed by law, and it should not be easily assumed that teachers in training institutions do not meet the requirements of the criminal subject of this crime; doctors in a one-time medical relation and illegal medical practitioners can also be subjects of this crime. A person with nursing duty may be regarded as a miscellaneous provision for the subject of this crime. The objective aspect of this crime is that the perpetrator has sex with a female minor, including having sex with a female minor or making a female minor have sex with him. The establishment of this crime does not require the abuse of dependence on the educator, trainer, etc. as in German criminal law, nor does it require "taking advantage of the opportunity of influence" as in Japanese criminal law. It only requires that the perpetrator has the status of a person with nursing duties. Moreover, the victim's consent is invalid for this crime. This crime does not require the continuity of the perpetrator's conduct, and usually the continuation of the special duties is sufficient for this crime. In the case of an error of cognition between an object of this crime and an object that does not constitute the object of this crime, the establishment of this crime is generally denied. This crime may be committed by an omission, and the act of a recipient of a runaway may constitute this crime. This crime does not require hands-on commission, so parents, etc. can become indirect or even joint perpetrators of this crime. The relationship between this crime and the crime of rape is that of an imaginative concurrence of offense. In the case of an error of cognition between the object of this crime and the object of rape of a female minor, this crime is generally constituted. Sexual assault on a female minor by a person with special duties constitutes either an imaginative concurrence of this crime and the crime of rape, or this crime alone.
Reflections on the Chinese Legislation on the Age of Consent for Sex after the Adoption of the Amendment (XI) to the Criminal Law - From the Perspective of Comparison Between China and Europe
Zhu Guangxing
Abstract: During the past several decades, laws on the age of consent in Europe have been amended continuously. This research collects the data on the latest laws on the age of consent in Europe, compares them with the corresponding laws in the last century, and reveals several trends. The first trend is to raise the minimum age of consent for sex, and there is a harmonious development as well to prevent pedophilias from having sex with children by crossing national borders. The second trend is to use gender-neutral language in legislation to equalize the age of consent for sex for both heterosexuality and homosexuality, and for both males and females. The third trend is to strengthen the regulation of sex under authority relationships in more and more areas. The Amendment (XI) to Chinese Criminal Law has added a new crime - sexual assault by persons with care duties, which sets the age of consent for sex in authority relationships (such as the relationship between teacher and student, between doctor and patient, and between guardian and ward) at 16. It provides more protection to children from being sexually exploited by authoritative persons, so in this regard, this new amendment is a tremendous progress in the Chinese legislation on the age of consent for sex. However, the Chinese law on the age of consent for sex still has room for improvement and the European legislative practice provides a good example for China in this respect. First, the normal age of consent for sex is too low and cannot punish foreign pedophilias who take advantage of this low age to have sex with Chinese children that are at or above the age of 14. Second, male adolescents above the age of 14 are considered competent to have sex with any person, including a person in authority, and this is disadvantageous to the protection of male adolescents under the age of 18. Third, the current age of consent for sex in a relationship of authority is 16. As a result, children above the age of 16 but under the age of 18 are excluded from the special protection. The corresponding solutions include the followings: first, to use gender-neutral language in the legislation on the age of consent for sex, so that the age of consent for sex will be applied with no distinction between boys and girls, or between heterosexuals and homosexuals, and to raise the normal age of consent for sex to 16 and the age of consent for sex in a relationship of authority to 18. Although China has no tradition of discriminating against homosexuals and Chinese legislation has never made a special distinction between heterosexuals and homosexuals, the current gendered language in sexual offense legislation does lead to different legal consequences for heterosexuals and homosexuals, and for males and females. The Chinese academia believes that technically it’s not difficult to adopt a gender-neutral language in legislation. All we need is for the legislators to change their mindset. In addition, according to the current legislation, if a boy above the age of 14 but under the age of 16 has consensual sex with a girl under the age of 14 in China, he will be criminalized as a rapist if the sex occurs often, or causes pregnancy. This is disadvantageous to the future development of the boy who is under the age of 18 and still needs special protection. The defense of ‘age of similarity’ adopted by most European countries is a good solution and it only requires two elements to exculpate the boy: the sex is consensual and their age discrepancy is within a certain limit. Once adopted, the age similarity defense is consistent with the Chinese judicial policy of “moderate and cautious intervention” in dealing with consensual sex between teenagers.
The 200-Year Development and Future Prospect of Constitutional Review
Wang Kai
Abstract: The constitutional review system has a history of more than two hundred years since its establishment in 1803. Currently, constitutional review systems in the world can be divided into seven models: the American judicial review model, the continental European model, the hybrid model, the French model, the Commonwealth model, the parliamentary review model and the Chinese model. Constitutional review has undergone three stages of development: the establishment stage, the development stage, and the diffusion stage. This development process is characterized not only by the convergence of the American judicial review model and the continental European model and the continuous strengthening of the legitimacy of democracy and improvement of technicality, but also by the emergence of the following three new situations and new problems: (1) The relationship between the constitutional review body and the legislature. Traditionally, a passive legislative position has been adhered to in constitutional review. However, in recent years, constitutional review, especially the Constitutional Court model, has shown a trend towards positive legislation. In order to ease the tension between the constitutional review body and the legislature, or to prevent the constitutional review body from replacing the legislature in legislation, some methods have been developed to restrain the power of constitutional review, including constitutional presumption and review intensity. (2) The relationship between constitutional review and politics. The debate between Kelsen and Schmitt about “who is the guardian of the constitution” actually involves the nature of constitutional review: legal or political. From the perspective of the role played by constitutional review in supervising and constraining politics, constitutional review has to keep a certain distance from politics. At the same time, if a constitutional review organ does not pay attention to maintaining its own neutrality, its supervision of politics will be easily eroded by politics, leading to the problem of judicial politicization that Schmitt is worried about. (3) The relationship between constitutional review organs and ordinary courts. The relationship between constitutional review organs and ordinary courts involves the distinction between two fundamental issues: constitutional cases and legal cases, and constitutional interpretation and legal interpretation. A constitutional review body should be a passive judge, that is, it can only judge whether the legal interpretation of an ordinary courts is constitutional or not, but cannot say how the law should be interpreted, so as to maintain the division of power between constitutional review and judicial trial. The current western constitutional review is facing not only threats from terrorist attacks, social welfare, and economic crisis, but also the danger of the decline of constitutional authority caused by the politicization of the judiciary. In the midst of great changes unseen in a century, the constitutional review system with Chinese characteristics not only contributes to the realization of comprehensive law-based state governance in China, but also provides Chinese wisdom and Chinese solutions to the constitutional review system in the world.
Departure from Guiding Cases and Its Restrictions
Lu Xingfu
Abstract: The introduction of the case guidance system of the Supreme People's Court was aimed at unifying judicial adjudication and realizing the treatment of similar cases alike to a greater extent. However, although the Provisions on Case Guidance clearly stipulate that people's courts at all levels should refer to corresponding guiding cases when trying similar cases, there are situations in judicial practice in which local courts depart from guiding cases in the trial of similar cases. Departure from guiding cases of the Supreme People's Court means that judges should follow a guiding case when they try cases similar to the guiding case, but decided not to do so. It can be divided into two types: internal departure and external departure. In current judicial practice, the former may be based on social and public interests, or take the approach of a distorted interpretation of the guiding case, while the latter is based on the idea that "China is a non-precedent setting country." Departure from guiding cases may lead to many adverse consequences, including harming formal justice, raising the time cost of litigation, and increasing the difficulty for judges to hear cases. It can be constrained in the following three ways. First, to establish substantive rules for following guiding cases. In the case of departing from the guiding case on the grounds of public interest, the specific criteria of not following the guiding case on the grounds of public interest should be constructed, that is, the public interest involved must be of overwhelming importance, and the private interest involved must be comparable with the public interest. With respect to departure due to improper interpretation of guiding cases, the judge is required to explain the key points of guiding cases based on the reasons of judgment. Second, to construct a leap appeal system for litigation related to guiding cases. Even if a local court departs from the guiding case, it is difficult for the parties concerned to seek relief from the Supreme People's Court through appeal because the court of the final instance in the vast majority of cases is a local court. Therefore, although the Supreme People's Court has established the case guidance system, it cannot effectively control the actual operation of the system. In order to solve this problem and make it convenient for the Supreme People's Court to access such cases, it is necessary to construct a special leap appeal system, whereby either party who thinks that the first-instance court or the second-instance court departs from the guiding case can directly appeal to the Supreme People's Court, so as to ensure its regular hearing of relevant cases. Third, to clarify the crux of the negation of the validity of guiding cases on the grounds that "China is a non-precedent setting country" by pointing out that this argument is based on the misjudgment of the status and role of precedents in the continental law system. In fact, precedents of the supreme courts have at least de facto validity in typical continental law countries such as Germany and Japan, while there is no substantial difference in the role of precedents in judicial practice between the common law system and the civil law system. Because of the nature of justice and the unique role of precedents, the common law system and the continental law system tend to treat precedents in a similar way.
Understanding the Rationale of Law in Ancient China from Three Dimensions
Wen Yang
Abstract: Faced with domestic crisis and inspired by foreign theories at the end of the Qing Dynasty, Shen Jiaben and Liang Qichao studied and advocated the rationale of law in ancient China in order to assist the legal reform. Shen actively invoked Western doctrines of the rule of law to promote legal and political reform, while also emphasizing the importance of taking seriously the historical tradition of Chinese law. He believed that ancient Chinese law relied on the empirical dimension of legal reasoning for the trial of specific legal cases. Additionally, Shen focused on legal texts and stressed that “one should examine the source of laws and look into the rationale of it”, namely “one should examine the evolution of laws, carry out deep exploration of relevant cases, analyze differences between laws, and weigh up one against another”. This gave Shen’s study on legal theory profound historical connotations. Unlike Shen, Liang advocated the exploration of “abstract jurisprudence” outside texts of law. According to Liang, the development of jurisprudence in China reached its heyday during the Spring and Autumn period and the Warring States period, and then began to degenerate. Liang left behind the practical experience and historical evolution of Chinese law and, as a result, the abstract jurisprudence he sought diffused into the theories of state governance of the pre-Qin philosophers. If we pay attention to the experience and history of ancient Chinese law, Cheng-Zhu's philosophy is deeply enlightening in the seeking of abstract jurisprudence, not only to the world of reasoning that explains the way by reasoning and connects to the world of reasoning in the pre-Qin Dynasty but also to the world of law in the Ming and Qing dynasties, which was profoundly influenced by the system of righteousness created by the classical exegesis. In view of this, the understanding of the rationale of law in ancient China can be developed from three dimensions: empirical, historical and philosophical. In the empirical dimension, the rationale of law in ancient China, a legal evaluation of specific social life affairs, was embedded in political affairs, prison affairs and civil affairs. In the historical dimension, the rationale of law in ancient China was attached to the long tradition of rites and penalties, the former was subject to changes, and the latter could be light or heavy. In the philosophical dimension, the rationale of law in ancient China sublimated affairs to the reason of heaven, and inwardly transcended the concrete affairs in social life. From the viewpoint of the object of investigation, one should not only focus on the concrete and microscopic affairs but also emphasize the ritual and penal narratives of heirloom documents, and try to clarify the ideological connotations of the Rationale of Heaven and other legal doctrines. A multi-dimensional understanding of the rationale of law in ancient China helps us to build bridges between Eastern and Western concepts and between ancient and modern standpoints, and better understand the legal civilization of ancient China.
The Concept of the Formation of the Rules on Subject Matter of Sales Contracts – An Analysis from the Perspectives of Human Dignity and Incorporeal Things
Fei Anling
Abstract:All legal rules are guided by concepts, and rules on the subject matter of sales contracts are no exception. The reflections on the concept of the rules on the subject matter of sales contract originate from the deep observation and analysis of the phenomenon that the natural person becomes the subject matter of sales contracts and the obvious gap established by the Chinese Civil Code between the rules of sales contracts that centers on the “transfer of the ownership of subject matter” and those related to the transfer of incorporeal things. To understand the rules of subject matter regarding sales contracts in the Chinese Civil Code, we should explore not only the concept of “things” per se, but also the relationships between history and reality, and between things and natural persons. This paper argues that, firstly, simple and clear concepts are easily ignored by legislators who are usually influenced by technical legislative tools. It has been a long journey for the concept of human dignity to develop from a concept in Roman law to a concept in the modern law system. In the 21st century, it is imperative that the concept of human dignity be deeply entrenched in the rules on the subject matters of transactions, specifically limit the subject matter of sales contracts within the scope of “things” according to the established definition, and rectify in real-life transactions the alienations of subject matters in sales contracts that run counter to the concept of human dignity in Chinese law. The core of practicing this concept is to carry out legislative coordination between civil law and criminal law as well as between the internal rules of civil and criminal laws in accordance with legislative guidelines and basic principles, so as to limit subject matters to within the scope of things and resolutely put an end to the practice of treating natural persons as subject matters of sales contracts. This is because the terms and rules in the legislation have functions not only as codes of conduct but also as a method of national education. Secondly, although the rules of transfer in civil law cover the transfer of both corporeal and incorporeal things, they do not reflect the reality and needs of modern socio-economic development or embody the systematization of the Chinese Civil Code. This is because there is a lack of the concept of coexistence among things corporeal and incorporeal within the rules of subject matters in sales contracts. As an important concept of the classification of things under Roman law, the concept of coexistence of things corporeal and incorporeal directly affects the basic classification of things. This concept is inherited by modern countries that have codified their laws, but has not attracted due attention in the civil law legislation in China. This concept is of great value in guiding the recognition and interpretation of the subject matters of sales contracts against the background of the rapid development of modern network science and technology. The main ways to realize this concept is to emphasize the legal maxim of “everything which is not forbidden is allowed”, and to amend Article 595 of the Chinese Civil Code to read: “A sales contract is a contract under which a seller transfers his ownership over the subject matter or other disposable property rights to a buyer who pays the price in return”, so as to introduce incorporeal things into the rules of subject matters of sales contracts, and establish differential systematic consideration on concrete rules.
The Ownership of Joint Share of Husband and Wife and Determination of the Validity of Its Unilateral Disposition
Zhao Yu
Abstract: The legal effect of the ownership of the joint share of husband and wife and its unilateral disposition involves the overlapping application of rules in the three dimensions of family property maintenance, market transaction order, and corporate organization. The joint share of husband and wife should be divided into proprietary rights and relation-based rights. The judgment of whether the proprietary rights and interests are jointly owned by the husband and the wife should be mainly based on the actual source of capital contribution, while the judgment of the ownership of the relation-based rights and interests should be based on the shareholder register and industrial and commercial registration. An implied entrustment legal relationship between the husband and the wife formed in the exercise and disposal of the equity is closer to the reality of the division of labor in a family. The scope of implied entrustment is limited to "normal production and operation activities", including elements such as "reasonable price" and "reasonable business judgment", which are applied not only to the field of transaction but also to the determination of the voting rights in shareholders’ meetings. Within the scope of implied entrustment, registered shareholders independently exercise their rights and engage in production and operation activities that are consistent with the appearance of equity registration. The principle of independent operation also clarifies the subject of business accountability, so as to avoid unpredictable business risks for the party who is not registered as a shareholder and does not participate in production and operation. Beyond the scope of implied entrustment, the unregistered shareholder can claim that the act is invalid, and obtain diversified relief in contract law, marriage and family law and company law. The systematic construction of the three systems of "implied entrustment theory", "independent operation principle" and "registration effectiveness" establishes separation and connection between the fields of family, transaction and business. On the premise of maintaining the existing rules of marriage and family law, contract law, and company law to the greatest extent, it will realize the convergence of various branches of law within the civil law. In addition, it will ensure the stability of family property not used in the business field and the validity of the behavior of the registered shareholders or independent operators, clarify the expected interests of the third party in transactions, as well as the boundary between the business property and the common property of a family, and limit the business risk within the scope of implied entrusted property. When the marriage and family law returns to the Civil Code system, it is necessary to fully combine the humanistic care of the ethical law contained in the Civil Code with the rational light of market transaction activities, supplement the connecting clauses within the Civil Code system, finely integrate the rules, balance and maintain the legal values of the family, market transactions and corporate organizations, and realize the orderly operation of property within the family, market transactions and corporate organizations.
The Construction of a Dynamic Judgment System for the Personality Denial of Affiliated Companies
Shi Yifeng
Abstract:Compared with ordinary companies, affiliated companies are theoretically more prone to denial of personality (piercing of the corporate veil) because of their special governance structure and the limitations of limited liability. A company's independent personality is based on the company's interests, while the company's interests are based on the company's decision-making autonomy. Therefore, it can be concluded that decision-making autonomy is the inherent logic of the personality denial of affiliated companies. Improper influence on decision-making autonomy constitutes the substantive reason for judging the behavior requirement of "abuse of the independent legal person status of the company and the limited liability of shareholders" in the personality denial of affiliated companies. Empirical researches on the personality denial of affiliated companies since the release of Guiding Case No. 15 show that, although there are differences in the research results in terms of data statistics, from the perspective of doctrinal analysis of statutory law, a switch should be made from data empirical research to type empirical research. Under the type empirical research, it is possible to dig into the situations of improper influence on decision-making autonomy in the personality denial of affiliated companies, which specifically include "personality mixing", "improper transfer of benefits under affiliation", "improper transfer of assets under effective control" and other types. These specific types of behavior requirement present certain levels in the degree of "improper influence on the company's decision-making autonomy", which also affect the judgment of other requirements in the personality denial of affiliated companies. Therefore, a dynamic judgment system of personality denial of affiliated companies can be constructed in the context of "improper influence on the company's decision-making autonomy" in the behavior requirement. This dynamic judgment system replaces the traditional "requirements - effect" structure with the "element-effect" structure, thereby turning the requirements of personality denial of affiliated companies into elements. At the same time, the "personality mixing" situation established by the modified Guiding Case No. 15 is used as a principal example to determine the benchmark for the dynamic judgment of each element. Specifically, in the dynamic judgment system of personality denial of affiliated companies, there are dynamic judgments within the elements. For example, there is a dynamic judgment system for behavior elements under the strength of "improper influence on the company's decision-making autonomy". There are also dynamic interactions between different elements, such as the determination of whether other elements adopt the direct proof mode or the different presumption mode according to the strength of the behavior element. This dynamic judgment system of personality denial of affiliated companies can actually be regarded as a general clause of personality denial of company in the future revision of the Company Law. Combined with the dynamic structure of "element - effect" and the dynamic judgment benchmark, it will enhance the law's ability to deal with the evolution of complex society.
Systematic Construction of and Reflections on “Trademark Use”
Chen Mingtao
Abstract: The trademark law is essentially the law of trademark use, rather than the law of trademark registration. As the “soul” or “principal axis” of the trademark law, trademark use runs through the whole trademark system, and involves an all-round understanding of the fountainhead of trademarks, which is verified in legislation, law enforcement and judicial practice. In recent years, Chinese scholars have carried out discussions on trademark use, mostly focusing on its status and role in the constitution of trademark infringement, but there is a lack of a multi-dimensional systematic exploration, especially in such issues as the essential function of trademark use, the status of intention in trademark use, the way in which the trademark use drives changes in the scope of trademark protection, and the interaction between trademark use and distinctiveness. In the process of judicial adjudication, trademark use also involves a comprehensive analysis of the following factors: relevant public, territoriality, form of use, degree of use, trademark authorization, social popularity, extension theory, active and passive use, public use, implicit and explicit use, confusion, dilution, etc. Therefore, in the context of trademark law, a full-scale understanding of trademark use should be gained in four dimensions: source identification, the intention of use, scope of protection and distinctiveness. Among them, source identification and intention of use are the intrinsic elements for judging trademark use; trademark use promotes the change of the level of trademark protection, and distinctiveness has a close interactive relationship with trademark use. In essence, as far as the source-identification function of a trademark is concerned, it is the relevant public who identifies the source, and it is the goods or service that is identified. In other words, only when a trademark borne on goods or services can be distinguished from others by the relevant public, can such use of the trademark constitute trademark use. Also, trademark use requires the intention to use a trademark effectively, while symbolic use, mere assignment or license, and indicative fair use should not be considered trademark use. In terms of trademark protection, post-sale confusion as an exception should not negate trademark use as the prerequisite for trademark infringement. At the same time, variables involved in trademark use, such as social popularity, extension of goodwill, market pattern and public use, could expand the scope of trademark protection. Distinctiveness, on the other hand, establishes a subtle interaction with trademark use, as it is not only the result of trademark use but also the internal cause of the constitution of trademark use. The above four dimensions are used for reconstructing the trademark use system in order to clarify its profound meaning and theoretical structure, which is important for solving the existing puzzles of trademark use as well as new problems in the current information network era.
Investor Liability in International Investment Arbitration: Contributory Fault and Reasonable Investor Standard
Huang Liping
Abstract: As a mechanism created for remedying the damage of foreign investors against their host governments, international investment arbitration plays a minor but increasingly important role of investor accountability. On the premise that an investor claims against the host state, investor liability could passively be found in the negative form of diminishing the liability of the host state or absolving the host state of liability, instead of a direct burden on the liable investor. For that purpose, the theory of contributory fault and the standard of a reasonable investor have been widely invoked. The contributory fault theory is well embodied in both domestic and international laws, especially Article 39 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts. In the five cases of successful application of the theory so far, it has been applied in the determination of liability or quantification under specific conditions, including a breach by the respondent that caused damage to the claimant, an investment misconduct, a causal relationship between the investment misconduct and the damage in dispute, and a material and significant contribution of the misconduct to the damage. The standard of a reasonable investor has not only been taken as a standard for deciding an investor’s fault and legitimate expectation but also affected the jurisdiction of a tribunal and the admissibility of arbitration claims. Derived from the “reasonable person” standard under the domestic law of torts, it has been evolving to create a duty of due diligence, reasonable care and other related obligations for investors. Despite these theoretical grounds and developments, the arbitral practice of investor liability showed some problems. Firstly, there are misunderstandings of the basic concept as well as the causality element, which require clarification or correction by subsequent investment tribunals or definitions by international investment agreements. In particular, a causality analysis in the determination of investor liability has to probe into the question of whether there is an ultimate causal link, directly or indirectly, between the investor’s misconduct and the fact that incurred liability. Secondly, the existing standards of conduct for investors are too general, leading to elasticity in the application. International investment agreements may need to adopt more specific requirements of the reasonable investor standard developed from practice and allow tribunals to take international conventions, standards and other international norms relating to investment regulation as standards of reasonableness rather than legality while determining investor liability in a passive and negative way. Thirdly, the unrestricted exercise of discretion by tribunals has resulted in the uncertainty of decisions. It is thus necessary for international investment agreements to provide discretional guidelines for tribunals, such as a structured investor liability commensurate with the severity of investment misconduct or even relatively fixed liability-apportionment rules for certain circumstances of contributory fault according to the regulatory objectives of the contracting states.
