Global Law Review(5-2022)








A Study on the Application of the Constitution in Special Administrative Regions


Mo Jihong


Abstract:Whether the Constitution, as the fundamental law, can be directly applied in special administrative regions is a question that has been debated in the legal theoretical circle and the legal practice circle since the formulation of the Basic Law of Hong Kong Special Administrative Region and the Basic Law of Macau Special Administrative Region. So far, the Chinese constitutional law circle has not provided rigorous legal proof to effectively solve this major theoretical and practical problem related to the special administrative region system. In fact, a basic law is only the “basic law” formulated by the National People’s Congress for the system implemented in a special administrative region according to specific circumstances. The special administrative region system stipulated in articles 31 and 62(13) of the Constitution is a complete set of institutions. The basic laws played an important role only in establishing the special administrative region system, but do not encompass or fully realize the legal functions of the special administrative region system established by the Constitution. From a legal point of view, the special administrative region system stipulated in the Constitution is a complete local governance system that embodies the structural and formal characteristics of the state and it is necessary and feasible for the National People’s Congress to formulate a law on special administrative regions in a general sense. Therefore, the two basic laws cannot go beyond the scope of authorization of the Constitution when setting up the special administrative region system. The common Article 5 of the two basic laws, which stipulates that “the previous capitalist system and way of life shall remain unchanged for 50 years”, needs to be interpreted in a limited way in terms of legal principles in order to comply with Article 31 of the Constitution, which stipulates that: “The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in light of the specific conditions”. In addition, the Interpretation of Article 13 Paragraph 1 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, issued by the Standing Committee of the National People’s Congress, explicitly takes Article 89 (9) of the Constitution as a basis of interpretation of relevant articles in the basic law. Therefore, the Constitution has in fact already had a direct legal effect on the legislative and judicial activities of special administrative regions. In addition, the national laws listed in Annex III of the two basic laws that can be applied in special administrative regions also have the problem of “constitutionality”. Once the unconstitutionality issue arises, it will inevitably have a substantial impact on governance activities of special administrative regions. In short, as the fundamental law, the Constitution, by establishing the special administrative region system, has the legal effect of direct application to special administrative regions. Special administrative regions, their institutions, deputies to the National People’s Congress from special administrative regions, and residents of special administrative regions as Chinese citizens all have direct legal obligations under the Constitution.


THEME DISCUSSION: Chinese and Western Rule of Law from an Interdisciplinary Perspective


Reflexive Justice: New Mode of Judicial Response to Social Demands from the Perspective of System Theory


Hou Mingming


Abstract: With the diversification of the growing demands of the people, the supplydemand contradiction between the external society and judicial response has become increasingly prominent. On the one hand, the supply-demand contradiction constitutes the basic social driving force for the continuous improvement of the current judiciary. On the other hand, the relationship between the judiciary and the external society has become a problem that must be dealt with in the operation of judicial power. The power allocation and function of the judiciary presuppose the inevitability of its response to society. However, in the process of responding to social demands, the judiciary faces the difficult problem of dealing with the relationship between judicial autonomy and judicial social responsiveness. Inspired by the system theory of law, reflexive justice can be proposed as an integrative concept to deal with this problem. Through the normative expression of judicial decision-making basis and the moderate social openness of judicial decision-making cognition, reflexive justice not only avoids the drawbacks of the pure legal formalism of mechanical justice, but also makes up for the legality crisis faced by responsive justice, as well as the theoretical defect of responsive law, namely ignoring legal exogenous factors, and ultimately realizes “opening under closure” and “response under autonomy” in the judicial system’s response to society. Environmental information has an “irritation” function for reflexive justice, which cognitively prompts judges to reflect on the legality and rationality of rulings, and even the normative choices, interpretation methods and consequence considerations behind rulings. Although the judiciary has social openness in cognition, this openness has the characteristics of optionality and moderation and is controlled by the two dimensions of “quality” and “quantity”, so as not to fall into the situation of “public opinion intervention in justice”. In short, in the context of judicial response to social demands, the reflexive judicial model is characterized by not only social openness, but also closedness. Moreover, the relationship between openness and closedness of the judicial system in responding to social demands is that of dialectical unity. The closedness of the judicial system constitutes the precondition of its cognitive openness. The judiciary acquires legality and legitimacy of its own operation through moderate social cognitive openness and expression of normative basis. Reflexive justice provides a preliminary analytical framework for the positive interaction between justice and society, and it is a new model of anticipated judicial response to social demands. Against the background that China has achieved phased results in judicial reform, if the Chinese judiciary wants to truly move towards a reflexive judicial model, it needs to make further improvements in at least the following three dimensions: first, defining the boundary between judicial professionalization and popularization; second, reaching more consensus among subjects through the negotiable structure within the judiciary; and third, strengthening institution building to provide more stable normative expectations.



How Does a Court Leading Group Operate?


Zhang Rui


Abstract: At present, the existing researches on the court leading groups have shown the promotive effect of political potential energy on special work, but due to the neglect of the influence of material incentives, they fail to reveal the rich operational patterns of court leading groups. Through empirical research on sample courts, it is found that the Party group of a court will allocate resources and divert tasks according to the task importance signal released by “political potential energy + material incentives”. As a result, the leading group of the court presents a kind of “down-to-earthness and perfunctoriness coexistence” mode of operation. When the political potential and material incentives of a task are strong, the court leading group generally operates in a down-to-earth way. When the political potential of a task is strong and the material incentive is weak, the operation of the court’s leading group is both down-to-earth and perfunctory, and the overall operation is more perfunctory than down-to-earth. If the political potential of the task is weak but the material incentive is strong, the leading group tends to operate in a down-to-earth way. When the political potential and material incentives for a task are both weak, the court’s leading group usually operates in a perfunctory way. The above operation patterns of court leading groups show that the organizational leadership function of a court Party group to lead the court to complete tasks is mainly embodied in the followings. First, alleviating the contradiction between multiple tasks and limited resources, and reasonably sequencing and diverting tasks. Second, overcoming departmental isolation and professional closedness, and implementing important tasks that need to be implemented across departments. Third, relying on daily work to complete tasks with lower priority on the precondition of respecting and safeguarding the political authority of superiors. Fourth, adjusting the operation mode of the leading group in time in light of the change of the importance of the tasks. In the combination of “political potential energy + material incentives”, material incentives have a significant impact on the operation of the court leading group. This is because court staff are more sensitive to economic incentives, promotion incentives and responsibility incentives. The influence of political potential energy is fundamental. On the one hand, the task of strong material incentives can produce more obvious organizational incentive effect under the support of strong political potential energy. On the other hand, strong political potential energy can enhance the legitimacy of material incentives, improve the sense of mission and responsibility of organization members, and help organization members understand the organization’s goals more deeply, so as to better bring their thoughts and actions in line with the organization’s goals. To improve the leadership of the CPC over judicial work, China can consider promoting the standardized operation of the court leading group, designing scientific and reasonable material incentives, and paying attention to meeting the intrinsic incentive needs of court staff through value guidance.


Between Politics and Law: Norms and Practices of Constitutional Revision in the Fifth French Republic


Wang Wei


Abstract: For nearly 20 years, there has been a certain antagonism and debate between normative constitutionalism and political constitutionalism in Chinese constitutional law circle. The reason for this may be the inability to reach a consensus on how to place political facts in the constitutional order. In this process of stagnation, comparative law resources have become more powerful arguments. Many scholars introduced the “constituent power” created by Sieyès in the French constitutional theory into the debate in China as an argument for the normative constitutional position, and the French theory of constitutional amendment, which is closely related to the constituent power, also became a topic of interest in the Chinese academia. However, Chinese scholars are familiar with France only as the country where the concept of constituent power originated and is frequently used in political life. The relationship between constitutional amendment power and constituent power and the question of whether and how constitutional amendment power should be limited have not been further explored and understood. It is true that the nature of the power to amend the constitution and the mode of its limitation is one of the fundamental theoretical issues in constitutional law. This article takes the works of representative scholars on constitutional amendments in the Fifth French Republic as first-hand research materials and provides an outline of 24 constitutional amendments, spanning from the French Revolution to the constitutional amendment controversy in the latest round of presidential election in 2022, with the aim of revealing the differences in the normative logic and institutional operation of constitutional amendments in France and in the “political-legal” arena. Specifically, the normative system centered on Article 89 of the Constitution contains both substantive and formal restrictions, while in practice, the political character of the constitutional amendment function comes to the fore. The relations among the President, the Prime Minister, and the Senate affect how specific constitutional amendment processes move forward. The Constitutional Council, the Supreme Administrative Court, and other bodies that can evaluate the limits of constitutional amendments are more likely to maintain a negative review attitude and seem to be deeply influenced by the doctrine of unlimited constitutional amendment. The reason for this is that differences between different constitutional amendment doctrines reflect the different influences of natural law and positive law on legal norms, and the positivist doctrine has prevailed in practice. Of course, there is a blind spot in the logical argumentations of different doctrines. Politics and law are not categories diametrically opposed to each other, and there are theoretical, methodological, and ideological reconciliations at every stage of the constitutional amendment process, thus making constitutional amendment one of the most important mechanisms for guarding the constitutional order and political system. In the examination in a Chinese context of French law, a space for academic exchange arises and a reference system is provided for a better understanding of basic theories of jurisprudence in different countries.




How Is the Private Law Application of the Proportionality Principle Possible?- From the Perspective of Normative Theory


Zhang Lanlan


Abstract: The principle of proportionality is undergoing a paradigm shift and gradually breaking through boundaries between legal fields. However, despite its reputation as the “crown principle of public law”, its path to private law application has not been a smooth one and its legitimacy has not yet been established. Against this background, it is necessary to rethink the origin and nature of this principle. In normative terms, the principle of proportionality did not originate in public law: although it was “invented” in the constitutional field after World War II, it can be “discovered” in the German Civil Code at the time of its enactment. The cross-legal field justification of the principle of proportionality thus eliminates the need to bypass the influence of public law on private law and frees it from the burden of public law in the process of transformation. In terms of its normative nature, the principle of proportionality is not a principle in the sense of principle/rule, but rather a meta-norm outside this classification intended to guide the application of principles/rules. Proportionality derives directly from the idea of justice and constitutes a universal norm that permeates the entire field of law. For this reason, the proportionality of the scheme of distribution of rights and obligations, whether in individual legal norms or in a normative complex formed by a principle/exception relationship, constitutes the basis of the validity of the principle of proportionality. As to the question of who weighs the proportionality scheme, it depends on the result of the distribution of power at the different levels of legal norms. The principle of proportionality, as a concretization of proportionality, is used to regulate the balancing of norms. In principle, the legislature possesses the prerogative of lawmaking. Through legislative balancing, it sets a proportionate distribution of rights and obligations between the relevant subjects in private law norms and authorizes the judiciary to make the balancing only where it is not possible or appropriate to do so in advance. Private law norms include state legislation and private norm. The former refers to private law norms created by the legislature and judiciary authorities, whereas the latter refers to private law norms created by private persons authorized to create norms regulating private relations by the State through the delegation of part of its legislative power. The principle of proportionality is mainly applied to the former to regulate the balancing of legislative and judicial processes; in the case of the latter, it functions only as a last resort where private autonomy is excessive or insufficient, and it does not conflict with private autonomy. The principle of proportionality not only differs from the prohibition of abuse of rights in terms of conditions of application and legal effect, but also complements its function. The principle of proportionality also provides an operational framework for the concretization of the prohibition of abuse of rights


Elucidation of Lawsuits for Dissolution of Contract from the Interpretative Perspective


Zhang Haiyan


Abstract: As a way to terminate the rights and obligations of contracting parties, the system of dissolution of contract is of high importance in the field of contract. On the basis of previous legal norms and practice, the Civil Code has set up a dualistic mode of exercising the right of dissolution of contract in which notice dissolution and judicature dissolution coexist, and all of the resulting actions could be referred to as lawsuits for dissolution of contract. These lawsuits can be divided into two basic types: actions for notice dissolution of contract and actions for judicature dissolution of contract. The former includes actions to confirm the effect of dissolution and the claim of dissolution of contract, while the latter includes actions for dissolution of contract under change of circumstances and actions for dissolution of contract under exceptional circumstances of continued performance of non-pecuniary debt. In the post-Civil Code era, it is necessary to systematically explain, from the interpretive perspective, the normative implication and procedural jurisprudence of the lawsuits for dissolution of contract, so as to ensure that the system value can be effectively implemented within the procedural framework in legal practice. The right of dissolution of contract belongs to the generalized right of formation. According to its ways of exercise, namely whether the lawsuit is necessary or not, such right can be divided into ordinary right of formation and suit right of formation. Under the dualistic mode, lawsuits for dissolution of contract can also be divided into two categories by their objects: i.e. actions arising from notice dissolution, which belong to actions of confirmation, whose object of action is ordinary right of formation, the judgment on which is confirming judgement with res judicata but no formation force or executive force, and the time of termination of the contract is when the intention of dissolution reaches the adversary; and actions arising from judicature dissolution, which are the actions of formation, whose supportive judgment is formative judgement with formation force and res judicata but no executive force, and the time of termination of the contract is when the judgment becomes effective. The determination of the types of action for dissolution of contract does not follow the logical path of “right of formation - action of formation - judgment of formation - formation force”. If all the actions whose object is the right of formation are regarded as actions of formation, unnecessary disputes will arise in the determination of the force of judgment and the merger of trials. In practice, actions for dissolution of contract are often merged with actions of prestation. If the request for confirmation is not filed as a separate object of action but taken as the causal fact of the prestation claim, the confirmation request can be absorbed by the prestation request, and the court does not have to explain to the party that he can add the request as an object of his action or to respond to the request in main part of the judgment, yet can specify the confirmation content in ratio decidendi; if a party has not made a request for formation, the court should explain to him that he can add this request as an object of his action and make a clear response to it in the main part of the judgment.


The Relief Paths of the Security Interest Holder as a Third Party in Civil Enforcement


Liu Ying


Abstract: The purpose of security right is not to occupy, use or obtain proceeds from the secured property, but to obtain the priority of repayment with respect to the proceeds from the sale of the secured property when necessary. In the case of typical guarantee, the existence of the mortgage right is not based on the possession of the guaranteed property, so the court’s seizure will not affect the mortgage right of a third party; although the existence of the pledge right and lien right is based on the possession of the guaranteed property, Article 11 of Provisions of the Supreme People’s Court for the People’s Courts to Seal up, Distrain and Freeze Properties in Civil Enforcement stipulates that, if the guaranteed property is kept in custody by a people’s court, neither the pledge nor the lien of such property shall be eliminated due to transfer of occupation. Therefore, seizure by a court will not affect the pledge right and lien right of the third party. A third party can protect his priority right of compensation and right of sale through participation in distribution and objection to enforcement. Therefore, in principle, third parties should not be allowed to adopt the approach of objection to the object of enforcement. In exceptional circumstances, such as a court’s separate sale of the attachments covered by the effectiveness of the mortgage, which affects the overall exchange value of the main objects and attachments, or the enforcement of the accounts receivable with the pledge of rights of a third party, resulting in the loss of the opportunity to participate in the distribution, there is room for the third party to protect its own right of sale and priority of compensation through objection to the subject matter of enforcement. In the case of atypical guarantee, it is generally believed that “other contracts with guarantee function” stipulated in Article 388 of the Civil Code include the retention of title sales contract and the financial lease contract; Article 641 (2) and Article 745 of the Civil Code adopt the registration antagonism consistent with the chattel mortgage in terms of the seller’s ownership of the reserved object and the lessor’s ownership of the leased object, respectively; Article 642 (1) and Article 643 (2) of the Civil Code and Article 64 (2) and Article 65 of the Interpretation of the Supreme People’s Court of the Application of the Relevant Guarantee System of the Civil Code adopt the enforcement of the right of claim for monetary payment, rather than the enforcement of the right of claim for goods delivery in terms of the legal structure of the realization of the rights of the seller and the lessor, respectively. In other words, their purpose is to realize the monetary claims such as the price or rent, rather than the ownership of the subject matter of sale or lease. Therefore, it can be said that the seller in the retention of title sale and the lessor in the financial lease enjoy the functional ownership and should be treated as secured parties. Similarly, the pledgee of a margin account should be treated as the pledgee in the typical guarantee. Therefore, these third parties should not be allowed to adopt the approach of objection to the object of enforcement, but they can seek relief through participation in distribution and objection to enforcement.


The Limits of Criminal Law Protection of Collective Legal Interests


Jiang Tao


Abstract:The theory of legal interests has changed with the change of tasks of the state, shifting from “monism” of individual legal interests to “dualism” of individual legal interests and collective legal interests. The strengthening of the criminal law protection of collective legal interests embodies the expansion of the preventive function of the state. By making collective legal interests a new object of criminal law protection, it turns abstract dangerous crime into a new tool of criminal law protection, thereby bringing new expectations of criminal law development and new expansion of criminal law function. Meanwhile, it also brings new problems, including systematic crisis of criminal law, criminal law instrumentalism, symbolic legislation and criminal law paternalism, which may pose a threat to freedom. Collective legal interests can be divided into two categories: one in broad sense and one in narrow sense. The former is a collection of individual legal interests and has a deductive relationship with individual legal interests. It can be reduced to individual legal interests and should not be protected as collective legal interests. The latter is the collection of legal interests that cannot be reduced to individual legal interests. Compared with individual legal interests, these interests are more solid and will not be easily destroyed, so criminal law also has stricter limits for their protection. To distinguish between the two and define the former as a collection of personal interests is to reduce the abstract and vague “collective legal interests” to concrete and clear “individual legal interest”, so as to effectively limit their scope and the approach adopted in this process is the concretization and clarification of the main bodies of legal interests. For this reason, it is necessary only when several or non-specified number of individual legal interests are infringed upon or threatened. Collective legal interests in a narrow sense are related to the state system or social public interest. Based on institutional conditions or operation, they need not to be reduced to individual legal interests, but should be more strictly restricted in terms of their scope of existence because they cannot be easily destroyed. On the one hand, they should not be greatly expanded on grounds of security and order, but should be limited to the basic system of the state, the state symbol or the operation order of state organs and social organizations as stipulated in the constitution. On the other hand, it is not appropriate to indiscriminately apply collective legal interests in a broad sense as the cause of criminalization. To find the best balance point between freedom and security in the criminal law protection of collective legal interests, we should not only adhere to the principle of specific risk and apply abstract dangerous crimes with caution (even if dangerous crimes are to be provided for, the focus should be put on specific dangerous crimes) but also strengthen the review of constitutionality and take the legitimacy of purpose, the legitimacy of means and the measure of legal interest as the third-order standards for the review.


The Development and Restructure of the System of Legal Aid in Death Penalty Review Procedure - From the Perspective of the Promulgation of the Legal Aid Law


Ji Xiangde


Abstract: Controlling and reducing the application of, or even abolishing, the death penalty is the development trend of criminal penalty in the world. Highlighting and strengthening the defense function of lawyers not only plays an obvious role in but also is of great significance for the process of continuously reducing the application of the death penalty. The death penalty review procedure is the last resort for China to control the number of death sentences and achieve the goal of prudent application of the death penalty. In recent years, during the gradual reform of the death penalty review procedure, the legal aid system in China has become more and more mature, evolving along the reform path from full coverage defense to access to defense and then to effective defense and producing more and more significant results. The Legal Aid Law, which came into effect on January 1, 2022, is the first legislative norm on the legal aid system in China. The law has made breakthroughs in legal aid in death penalty review cases, especially in clearing out the final hurdles to the full coverage of criminal defense, marking the initial formation of a legal aid system with Chinese characteristics. However, there are still many problems in the overall structure of the system of legal aid in the death penalty review procedure, including such aspects as system orientation, system ontology construction and supporting system design. Due to the compromises on such needs as maintaining traditional legal customs, pursuing judicial efficiency, and balancing social contradictions, the death penalty review system in China still has some administrative features. Factors such as superstition about the judge’s review have hindered the intervention by legal aid in the death penalty review procedure, thus affecting the realization of the value goal of the procedure. Today, in building a socialist system of rule of law with Chinese characteristics in the new era, China needs to focus on some key elements, such as defining the modern position of the death penalty review procedure in the legal aid system with Chinese characteristics, building a high quality supervision system and setting the consequences of procedural violations, take the realization of effective legal aid in death penalty review cases as the logical base point, systematically deconstruct, reflect on, and rebuild the system of legal aid in the death penalty review procedure with the attitude and position of dealing with Chinese problems with Chinese solutions, so as to realize the value goal of the death penalty review procedure. The legal aid system takes the people-centered approach as its core meaning and embodies the rule of law spirit of “for the people, relying on the people, benefiting the people and protecting the people”. In the criminal proceedings, it means to restrict the judicial power and protect the rights of the parties by the right of defense. China has basically met the “quantity” requirement, namely “full coverage”, of legal aid in criminal cases. In the next step, it should focus on the “quality” requirement of legal aid, especially in death penalty cases, so as to enable the people to truly feel the fairness and justice of the judiciary through legal aid service




From “Gender Difference” to “Gender Neutrality”, and then to “Gender Reconstruction”: the Overseas Experience of Parental Leave Legislation


Wang Jian


Abstract:Since the birth of parental leave, relevant researches in the international community have been focused on the most controversial gender issue, and the consensus that the design of the legal system is the key factor affecting the sexualization of family care has gradually emerged. From the development context of parental leave systems in other countries, we can roughly sort out three legislative models: (1) the gender difference model, which replicates and strengthens the traditional gender role by allocating parental leave only to women and excluding male parental leave right; (2) the gender neutrality model, which formally provides men with the possibility to take parental leave, so that men and women have equal opportunities to apply for parental leave, but in essence provides no incentive or pressure for men to use it, and therefore does not reverse the traditional gender order; (3) the gender reconstruction model, which is characterized by the establishment of an exclusive “father quota”, that is, the father’s exclusive non-transferable parental leave. In recent years, in order to achieve a more friendly and reasonable gender normative order, developed countries have gradually adopted the gender reconstruction mode of parental leave legislation. This mode uses five criteria to assess whether parental leave measures can achieve the purpose of substantive gender equality: first, whether the subjects of right are limited to a specific physiological gender; second, whether the salary substitution level is sufficient; third, whether the relatively sufficient salary replacement payment is reasonably shared; fourth, whether the time and method of taking parental leave are flexible; and fifth, whether the attitude of the workplace towards fathers taking parental leave is positive. Practice has shown that providing fathers with non-transferable parental leave with higher salary, flexible leave methods and dismissal protection and with the labor costs borne by society instead of the employer can increase the proportion of fathers using parental leave to a greater extent, and break the traditional gender norm of “men working outside home and women working at home”. Although local governments in various parts of China have begun to intensively introduce parental leave measures since the second half of 2021, the regulations on parental leave they have adopted are relatively simple, mainly focusing on three factors, namely rights subjects, children’s age and leave time, without clearly establishing the value concepts of regulating gender order and promoting gender equality. By refining, analyzing and reflecting on the basic laws of overseas parental leave legislation, China may adopt the following measures to improve its own parental leave legislation: enhancing the legislative level of the provisions on parental leave; upgrading the legislative concept of parental leave; clearly establishing the non-transferable parental leave enjoyed by the father; adopting comprehensive measures to encourage fathers to take parental leave; gradually extending the time of parental leave; and considering frontier issues such as inequalities between different family types and between workers with different identities.




A Re-discussion of the Applicable Objects of International Private Law and Related Issues


Shen Juan


Abstract: It is the biggest misunderstanding in private international law to think that the applicable objects of private international law are international or foreign-related civil and commercial relation. The rule of choice of law aims to specify the substantive law applicable to foreign-related civil and commercial relations, but does not specify the rights and obligations of parties involved in civil and commercial relations. That is, the rule of choice of law does not have the content and function of adjusting foreign-related civil and commercial relations, so the objects it adjusts cannot be foreign-related civil and commercial relations. The statement in the general theory that private international law adjusts foreign-related civil and commercial relations by means of indirect adjustment is also incorrect. If private international law directly adjusts the choice of law and indirectly adjusts foreignrelated civil and commercial relations, it means that there are two objects of adjustment in private international law. The former is a substantive relationship and the latter is a procedural matter, and the content and nature of the two are different. The implication that one law adjusts two objects with completely different characters at the same time can only show the fallacy of this statement. It is also a misunderstanding to think that private international law lacks the prediction of the result of law application. Since the rule of choice of law does not determine rights and obligations, such rule can only assume the function of predicting the result of choice of law, not the result of application of law. The essence of the rule of choice of law is to stipulate the criteria, methods and conditions for the judge to choose the law. It is a procedural rule as well as a rule in the category of public law, which is enough to show that “private international law” is a misnomer. Even if a civil and commercial relationship is foreign-related, it still belongs to the scope of the civil and commercial relationship and can only be adjusted by civil and commercial substantive law. Although private international law does not take foreign-related civil and commercial relations as its objects of adjustment, the rule of choice of law has an important impact on the adjustment of foreign-related civil and commercial relations. The applicable law of foreign-related civil and commercial relations must be invoked through the rule of choice of law. Therefore, the rule of choice of law is a rule that specifically serves the adjustment of foreignrelated civil and commercial relations. It expands the scope of choice for the applicable law of foreign-related civil and commercial relations through the equal choice between domestic and foreign laws regulated by bilateral rule of choice of law. The recent rule of choice of law even presupposes the results of the application of substantive civil and commercial law to strive to achieve the best effect when adjusting foreign-related civil and commercial relations. Modern private international law rules are composed of two parts, domestic rules and international rules, so private international law has the nature of both domestic law and international law.


The Conflict and Regulation of International Cybercriminal Jurisdiction


Yu Wenliang


Abstract: Positive conflict of current cybercriminal jurisdiction has become an important bottleneck in the international governance of cybercrimes. The traditional criminal jurisdiction has not acclimatized itself to cyberspace, resulting in the negative realization of criminal jurisdiction over cybercrime. The politicization, expansion, and alignment of cyberspace have further aggravated the conflict of jurisdiction over cybercrimes. With respect to the conflict attribution of criminal jurisdiction over cybercrime, the space and time elements of cybercrimes all “exist in the digital form” and the complex space-time and borderless nature has brought great uncertainty to the global criminal jurisdiction over cybercrime. The sharp contrast between the integrity requirements of the cyberspace evidence chain and the vulnerability status quo makes it extremely difficult to trace sources, collect evidence and carry out international cooperation in the fight against cybercrimes. The absence of international legislation on cybercrime jurisdiction leads to the lack of legal and practical bases for the application of universal jurisdiction to cybercrimes. The “Balkanization” of international cyberspace governance has further increased the difficulty and complexity of global governance and played a negative role in global cyberspace governance. China is actively exploring the criminal jurisdiction over cybercrime system that matches the vision of “building a community with a shared future in cyberspace”, whereas the United States, European countries and some other western countries are constantly expanding the criminal jurisdiction over cybercrime, and regard the whole world as the scope of application of the cyberspace jurisdiction. There are many endogenous and exogenous conflicts of criminal jurisdiction, showing an oscillation between the principle of expansion and the principle of modesty. The conflict of positions is reflected in the systematic game between hegemonism and sovereignty, with “hard law being not hard” and “soft law being not soft” going in the opposite direction. While the “soft-hard law mode” and the “hard law mode” are faced with many problems of inadaptability, the “soft law mode” is rising rapidly. In the global regulation of criminal jurisdiction over cybercrime, China should balance the relationship between the expansion and modesty of criminal jurisdiction over cybercrime, adhere to the principle of modesty of criminal law, and the principles of reasonableness and comity in international law, and promote the new international governance paradigm of cybercriminal governance. It should work together with countries all over the world to find a common divisor in promoting the development of rule of law in cyberspace, and “seek common ground while reserving differences” in the stance and response to major issues, so as to provide support for the formation of global common cognition and practice, constantly improve its capacity for institutional supply to the creation of cyberspace rules, and contribute its own solutions for the problems in establishing a fair, reasonable and orderly international cyberspace governance order.