SPECIAL COLUMN ON MARXIST LAW SCIENCE

A Typological Analysis of Constitutional Provisions on Supervision

Liu Lianjun

Abstract:In the Constitution of the People’s Republic of China, “supervision” is truly a high-frequency word, appearing 17 times in 12 provisions. Article 3 (2) of the Constitution provides that: “The National People’s Congress and local people’s congresses at all levels shall be created through democratic election and shall be responsible to the people and subject to their oversight.” This is the constitutional expression of the principle of popular sovereignty. Articles 77 and 102 of the Constitution are the further concretizations of Article 3(2). Article 27 provides that all state organs and functionaries must accept the supervision of the people. Article 3 (3) provides that: “All administrative, oversight, judicial, and procuratorial organs of the State are created by the people’s congresses, to which they are responsible and by which they are overseen.” The provisions on the supervisory power of the Standing Committee of the National People’s Congress in articles 67 and 104 are further elaborations of Article 3 (3). Articles 91 and 109 provide for the establishment of audit offices under the State Council and local people’s governments at or above the county level, respectively. Article 132 provides that people’s courts at higher levels overseethe adjudicatory work of those at lower levels. Article 134 establishes the constitutional position of people’s procuratorates by providing that they are the legal oversight organs of the state. Article 11 (2) is the only constitutional provision on economic supervision. Articles 62 and 67 give the power of “overseeing the enforcement of the Constitution” to the National People’s Congress and its Standing Committee, respectively. Article 41 is a provision on the supervision by citizens, whereas Article 127 is a provision on the power of commissions of supervision. The supervisory provisions in articles 11, 27(2), 62, 67(6), 77, 102 and 132 are typical of those that follow the Chinese constitutional tradition, whereas the supervision provisions in articles 3, 41, 67(1), 91, 104, 109 and 134 are the products of learning the lessons from past constitutional exercises. Article 127, which was added to the Constitution in the 2018 amendment, is a supervisory provision that changes the structure of state power in the new era of socialism with Chinese characteristics. Among all the supervisory provisions in the Constitution, there are few norms on rights or obligations, but many on powers; those that carry the value of people’s democracy mainly include articles 3(2), 3(3), 27(2), 67(6), 77, 102 and 104; and those that pursue the value objective of upholding the order of the rule of law are articles 127, 132 (2) and 134. Undoubtedly, the supervisory relationship is the core relationship among state organs in China. Only by correctly understanding the supervision relationship between them can we have a profound understanding of the internal structure of state organs created by the Chinese Constitution. A typological analysis of the constitutional provisions on supervision is conducive to accurately grasping the constitutional values of the Chinese Constitution and gaining a deep understanding of the characteristics of the Chinese socialist constitutional system.

THEME DISCUSSION: Studies on New Types of Cyber Crimes

From Traditional Crime to Cyber Crime: Jurisprudential and Legislative Reflections on Business Crimes

Sun Daocui

Abstract: In recent years, China has successively promulgated a series of basic cyber laws as well as special cyber laws, thereby significantly increasing the provisions on cyber business. Meanwhile, the continuous increase in illegal and criminal cyber activities has not only aggravated the shortcomings of the criminal law in regulating traditional business crimes and cyber business crimes but also put forward new requirements for the development of the business crime theory in criminal law. At present, China adopts fragmented and decentralized legislation on business-related crimes and includes it in the criminal system of anti-unfair competition, but this is not enough to objectively present the nature and regulatory characteristics of business crimes. The emergency response path that relies on related crimes to expand interpretation has already shown such problems as weak theory and inadequate supply of legislation. In view of the current situation and trend of development of economic form and the legislative tradition in China, the narrow concepts of business and business crime should be established and used as the basic starting point for exclusive legislation, so as to strengthen the full protection of legitimate business. With the rapid development of the Internet economy, especially the digital economy, cyber business crimes become increasingly rampant and it is obviously difficult to rely on existing computer crimes and cyber crimes to establish expansive interpretation paths. New cyber business crimes have their independent attributes that are related to but different from those of traditional business crimes. They belong to cyber crimes in the broad sense but are different from computer crimes and information cyber crimes. In essence, they are network unfair competition crimes and their protected object is legitimate and legal business. This also establishes the necessity and rationality of continuing to distinguish between traditional business crimes and cyber business crimes. The era of the Internet economy is coming in an all-round way, the legislation on anti-unfair competition triggers the connection between administrative law and criminal law, and the issue of special legislation on (cyber) business crimes is becoming increasingly prominent. China should be guided by its own actual legislative needs and reasonably draw on foreign legislative experiences, and effectively carry out the task of protecting the legitimate (cyber) business by criminal law. At the current stage, a “differentiation system” can be adopted. Namely, two separate provisions, Article 231-1 on the crime of obstructing business and Article 287-3 on the crime of obstructing Internet business, can be added to the Criminal Law to support the dual protection of legitimate traditional business and cyber business, and the legislation on cyber business crimes should also be adjusted in due time with the progress of the overall legislation on cyber crimes

Determination of the Nature of Cases of Virtual Futures Trading Platforms in Criminal Law

Zuo Xiuyang

Abstract: Different from formal futures trading, a virtual futures trading platform does not aim at the future delivery of the subject matter. The trader actually forms a quasi-gambling relationship with trading participants, the transaction funds flow in a closed loop, and there is no connection between transaction results and the real market. Virtual futures trading without the purpose of illegal possession can be divided into two types, namely the “binary option” model and the price difference model. For the “binary option” model, the Supreme People’s Court Guidance Case No.146 adopted the substantive interpretation approach and characterized it as the crime of operating casinos. The “binary option” involved in the guidance case does not have real underlying assets, nor does it have any function of risk management or price discovery. This is the fundamental reason why it is classified as the crime of operating casinos. As for the price difference model, although the judiciary has basically developed the practice of convicting the perpetrator for the crime of illegal business operation, this practice cannot accurately encompass the nature of the behaviors in such cases. Firstly, compared with the legislative and judicial experience of the highly similar “bucket shop” cases abroad, it is more accurate to classify them as cases of the crime of operating casinos. Secondly, the analysis of the nature of the behaviors in the cases reveals that, on the one hand, there is a high possibility that no real underlying assets exist in these cases. On the other hand, all transactions in these cases are closed in the virtual platform and have no relationship with the real futures market. Therefore, such transactions do not have the essence of futures, but purely create risks as a tool for people to speculate. Characterizing such behavior as the crime of illegal business operation does not conform to the nature of such behavior. Thirdly, based on the principle that collective legal interests should be able to be reduced to individual legal interests, the illegal business operation that can be criminalized must be those that are consistent in nature with legitimate business operations. However, there is no consistency in nature between the price difference trading and the behavior of futures trading, and it is impossible to reduce the corresponding collective legal interests to individual legal interests. Finally, the viewpoint that such transactions do not constitute the crime of operating casinos on the grounds that their participants do not have the intention of gambling has both the problem of overgeneralization and methodological errors. The verification of the purpose of illegal possession is crucial in the determination of the crime of fraud in cases of virtual futures trading platforms. The core criterion for ascertaining the purpose of illegal possession in a case should be the manipulation of the results of the transaction, which leads to the deviation of the transaction from the nature of gambling, namely the occasionality of winning or losing. Auxiliary criteria in such ascertainment include refusal to reimburse and reverse calling.

Path to the Determination of the Criminal Liability of Web Crawlers: Data Ownership and Interest Balance

Wang Huawei

Abstract: Web crawlers are more and more commonly used in many fields of production and life, but the criminal legal risks of data crimes also come with them. The core issue in the determination of the boundary of criminal liability of web crawlers is the authorization for obtaining data. Different regulatory structures of data crimes not only directly affect the boundaries of criminal liability for data crawling, but also limit the path to the determination of the authorization issue. The data crime provisions in the criminal laws of China and the United States have both adopted a relatively broad expression, so it is of great value to analyze the paradigms for determining the authorization issue in the United States. Regarding the determination of “no authorization” or “exceeding authorization” in data crimes, there exist different paradigms in American jurisprudence, such as the agency paradigm, the contract paradigm, the revocation paradigm and the code paradigm. The criteria of contractual rights and those of technical barriers represented by the above paradigms have their own advantages and disadvantages. The two sets of criteria are not mutually exclusive but should be in a complementary relationship with each other. To determine the criminal liability of web crawlers, we should first analyze the data ownership with scenario-based and typological thinking. However, the ownership of data rights in network platforms is highly controversial and discussion about this crucial issue is lacking in the current analysis of the criminal liability of web crawlers. Specifically, personal data should be distinguished from platform control data, and the data rights of individuals, platforms, and the public should be ascertained in light of different situations. On this basis, the violation of contractual rights lays the foundation for the illegality of data crawling. The form of the contract should be limited and the Robots Exclusion Protocol plays an important role in this respect. The breakthrough of technical barriers further enhances and confirms criminal illegality, thereby limiting the excessive expansion of punishment. The identification of technical barriers should not be too strict. Anti-crawler measures can be classified into this category and the balance between multiple interests such as enterprise data rights and platform operation mode should be taken into proper consideration. Through the combined criteria of contractual rights and technical barriers, data crawling behaviors that seriously violate data rights can be distinguished from daily misbehavior and minor infringements. In this way, data rights are fully protected and the last-resort nature of criminal law is maintained. The determination of the criminal liability of web crawlers requires us not only to carry out comparative research by taking relevant paradigms of data authorization as reference but also to carefully observe the reality of the Internet economy and the internal logic of the platform business model in the context of localization. Only in this way can we propose theoretical solutions to the problems relating to controversial data processing behaviors that truly suit China’s national conditions.

THEORETICAL FRONTS

The Conceptual Origin and Contemporary Expression of the Relational Proposition between Constitutional Law and Ordinary Law

Xu Ruichao

Abstract: Different from the relational expression of “general rules and sub-rules” or “parent law and sub-law”, the relational proposition between constitutional law and general law involves the structure of the relationship between the constitution and the general norms formulated by the legislator. How to understand the constitution and whether and how to limit the creation of general norms by formal law are the core of the relational proposition between constitutional law and general law. From the perspective of the history of ideas, the relationship between constitutional law and general law is based on the dualism of law represented by the relationships between natural law and positive law, between law and statutes, and between fundamental law and general law. The dualism of law is the ideological source of the thought on fundamental law and the theory of constitutional superiority. The modern constitution is the codification and institutionalization of the natural law theory after the rise of popular sovereignty and constitutionalism in the 17th and 18th centuries. In the positive legal order, the dualism of law is manifested in the relationship between the written constitution and legislative statutes and was first practiced in the United Kingdom and the United States. Legislative statutes are inevitably subject to dual, i.e., formal and substantive, restrictions by the fundamental (constitutional) law. During the period of parliamentary legislation, the general laws in continental European countries were created by the formal law, and the relational proposition between the constitutional law and the general law appeared illusory. The parliamentary legislative state opposes the dualism of law but does not advocate that the constitution is a higher law. It is a state form based on the superiority of legislative power and the concept of formal law. After World War II, as a result of the reflections on absolute legal positivism, the dualism of “law” since ancient Greece and the idea of the superiority of constitutional law (fundamental law) that attached equal importance to form and substance in the United States were inherited by European countries and then influenced other latecomers in the development of the rule of law. The relationship between constitutional law and general law is a hierarchical judgment consisting of two levels: at the first level is the judgment of the impact of the will of the framers and higher laws on the cognition of the constitutional law, and at the second level is the judgment of the influence of the constitutional law with formal and substantive superiority on the general law. The relationship between constitutional law and general law is not a unilateral subordination relationship, but a complex relationship structure containing many decisive elements. The structure of the relationship between constitutional law and general law not only includes the relationship of specificity, and the conditions, modification and abolishment of normative validity, but also the relationship of normative association and mutual influence. Although democratic legislature dominates the creation of general norms, general norms are not created by formal law soely, they come from the constitutional order as a whole.

The Exercise of Legislative Power by the National People’s Congress and Its Standing Committee through the Adoption of Resolutions or Decisions

Jiang Hui

Abstract: The National People’s Congress (NPC) and its Standing Committee (SC) exercise legislative power in two ways: enacting “laws” and adopting “resolutions” or “decisions” (hereinafter referred to as “decisions”). When exercising legislative power by adopting decisions, the NPC and its SC no longer strictly follow the law-drafting standards and often use policy language. Furthermore, they also adopt more flexible law-making procedures: most of the legislative decisions are not promulgated by the order of the President, are deliberated only once, and are not published for comments before adoption. This practice has caused many problems. First, in practice, there is no difference between legislative decisions and “laws” in legal effect. Legislative decisions are applied as “laws” by the judiciary and other state organs. As a result, theoretically, the NPC and its SC can legislate without following the law-making procedures stipulated in the Constitution and the Legislation Law, which undermines the seriousness of the legislative procedure. Second, the legislative power and other kinds of powers exercised by the NPC and its SC are different in terms of exercising requirements and legal effect. If the NPC or its SC can exercise both the legislative power and other powers by adopting decisions, the distinction between the legislative power and other powers is blurred and it is difficult to tell the exact nature of the power exercised by the NPC or its SC when it enacts a decision. This situation results in many controversies and other problems in theory and in practice. Third, legislative decisions can contain provisions that contravene existing laws. Consequently, they can be used to explain the improper exercise of powers by the NPC and its SC. As a result, it would be difficult to effectively regulate the exercise of powers by the NPC and its SC. In view of these problems, it is necessary to change the practice of exercising legislative powers through the adoption of decisions. Firstly, it should be made clear that the NPC and its SC can only exercise the legislative power when they need to handle a one-off matter in a way contrary to current laws or in a situation where there is no constitutional or legal basis. The idea that the legislative power cannot deal with one-off matters should be abandoned. Both the origin of legislative power and comparative law show that it is common for legislative power to deal with one-off matters. Secondly, the procedures of the exercise of legislative power should be unified. The legislative procedures provided for in the Legislation Law should be followed whether in creating non-ideal laws with local and temporary characteristics or in exercising legislative power for one-time matters. Meanwhile, it may be necessary to revise the Legislation Law in light of the uniqueness of these two situations. In the long run, the name of all kinds of legislation should be unified as “law”.

The Justification of Automated Administration

Li Qing

Abstract: In order to further modernize the state governance system and capacity, China is currently committed to building a digital government. Automated administration is an important aspect of digital government. Whether administrative actions can be automated is the starting point for discussion as well as the basic issue in this paper. Self-review of administrative organs, counterpart’s consent, and legislative authorization are the three main propositions about the justification of automated administration. However, each of these propositions has its limitations and none of them can provide a complete and undisputed legitimacy basis for automated administration. The essence of constructing the legitimacy basis of automated administration is to clarify the relationship between automated administration and law, that is, to ensure that automated administration does not overstep the legal authorization given to administration organs. Taking whether the legal authorization is overstepped as the standard to type automated administration points directly to the essence of the legitimacy foundation of automated administration. There are two elements in the judgment of whether the legal authorization is overstepped, organizational element and conduct element. According to the above criteria, automated administration can be divided into the non-overstepping system and the overstepping system. The overstepping system can be further divided into the auxiliary intervention system, the alternative benefit system, and the alternative intervention system. The non-overstepping system can be introduced by self-review of administrative agencies without the need for authorization. However, it should be noted that, the ability of administrative law enforcement officers to make judgments anytime and anywhere should be guaranteed and their superstition of and over-dependence on the non-overstepping system should be avoided. The legitimacy basis of the overstepping system should be constructed in a typed way. The justification of the auxiliary intervention system should be discussed in stages. The primary auxiliary intervention system represented by electronic technology monitoring, which involves the processing of personal information, can be introduced through authorization by laws, administrative regulations, local regulations, department rules, or local rules. The advanced auxiliary intervention system represented by the “Traffic Administration 12123” APP, which not only involves the processing of personal information, but also infringes on the procedural rights of the persons concerned, can be introduced only through authorization by laws, administrative regulations, or local regulations. The introduction of the alternative benefit system is essentially an issue of whether the counterpart is willing to replace the reduction of procedural obligation with personal information. The system can be introduced with the consent of the individual concerned. The alternative intervention system can replace administrative law enforcement officers and be completely removed from the control of administrative agencies, resulting in the administrative power authorized by law losing its proper role. In this case, only by re-authorizing the alternative intervention system according to the authorized path of the replaced executive power, can the doubts in the behavioral law and the organizational law be eliminated.

Types of Violation of Duty to Cooperate and Their Legal Consequences - A Doctrinal Research Focusing on Hired Work Contract

Liu Yang

Abstract:Cooperative acts play a significant role in the obligation of hired work. However, because of the lack of systematic coherence in the design of relevant rules in the Chinese Civil Code (CCC), there are many loopholes in the provisions on legal effect. With the help of the method of categorization, we can divide violations of the duty to cooperate into three types, i.e., cancellation of the duty to cooperate, delay in the performance of the duty to cooperate, and defective performance of the duty to cooperate. On basis of this categorization, the legal effect can be ascertained accordingly. The cancellation of the duty to cooperate can be further divided into four concrete forms, namely arbitrary termination of contract by the hirer, refusal to cooperate, blamable impossibility of cooperation, and non-blamable impossibility of cooperation. Subjective teleological, systematic and teleological constructions of § 787 CCC all come to the conclusion that the liability for damages resulting from arbitrary termination of a contract is “the right to claim remuneration under the cloak of damages”. Refusal to cooperate or blamable impossibility of cooperation may give raise to the right to full compensation of performance interest, instead of the right to partial remuneration, under § 584 of the CCC. When the impossibility of cooperation is not blamable, the legal effect can be ascertained through the analogous application of the right to partial remuneration. If the violation of the duty to cooperate lies in its delay, the waste of time and unnecessary reservation of resources constitute the occupation of ability to perform and the right of the contractor to damages should have the connotational structure of “additional costs + lost profits”. Nevertheless, the influence of judicial discretion on the determination of the amount of compensation in judgment should be recognized. This legal effect structure corresponds to transaction practice and is confirmed by comparative law experience. In the case of defective performance of the duty to cooperate, a determination should be made on the question of whether or not the contractual exchange plan is excluded. If the answer is yes, the legal effect can be ascertained by applying the treatment model of blamable absence of cooperation. If the answer is no, the judge should further determine whether the performance of the contractor’s obligation has already taken place. Where the obligation of the contractor is not yet performed, the legal effects can be ascertained by applying the treatment mode of delay in the performance of the duty to cooperate. Where the performance of the obligation has already begun, the legal effects should be ascertained in light of the impact of the defective cooperation on the partially finished work. If the partially finished work was damaged but not completely destroyed, the contractor shall be equipped with the right to claim the repairment expense plus the remedies designed for the case of delay in cooperation. If the partially finished work was completely destroyed, the contractor should be entitled to partial remuneration.

Normative Interpretation of the Connotation of the Principle of the Best Interests of the Child

Yuan Ningning

Abstract: On June 1st, 2021, the first judgment on civil public interest litigation case relating to tattooing for children in China was made. In the absence of legal rules and precedents, the court invoked the principle of the best interests of the child and found that the defendant, who provided tattoo services to children, violated the rights and interests of child consumers and should be held liable under the law. Because of the fact that the law inherently lags behind the practice and because of the extensiveness of the rights of the child, the application of the principle of the best interests of the child will become the norm in the future, especially in law enforcement and judicial activities, which makes it urgent to fully and accurately define the connotation of the principle. An examination of the sources of international law shows that the principle should inherit five attributes from Article 3 of the United Nations Convention on the Rights of the Child, including conceptual basis, dimension of understanding, scope of application, method of application, and priority status. Specifically, it is based on the promotion and realization of the rights of the child, has three dimensions, namely a substantive right, an interpretative principle, and a rule of conduct, applies to all matters concerning children both as individuals and as a group, weighs and judges all relevant elements contextually, ensures that the best interests of the child are given priority and not absolute exclusivity. As the principle of the best interests of the child enters into the domestic legal systems of different state parties of the Convention on the Rights of the Child in different ways, it needs to be concretized by being integrated with the cultural values and legal traditions of each state party. China’s understanding and integration into its own law of the principle of the best interests of the child was a process of evolution from ambiguous treatment to direct transplantation and thence to local transformation. After years of effort, the principle of the best interests of the child was formally established in both the Law on the Protection of Children and the Civil Code in China in 2020. An analysis of Chinese domestic legal norms reveals that Article 4 of the Law on the Protection of Children expends the local connotation of the principle in terms of the equality of status of minors, the subjectivity of their rights, their physical and mental vulnerability, the social nature of their development, and the plasticity of their growth. Its specific requirements can be summarized in the following five aspects: respecting the human dignity of children, listening to their views, giving them special and priority protection, adapting to the rules and characteristics of the development of their physical and mental health, and combining protection and education. From the standpoint of legal doctrine, the integration of the ten aspects summarized above constitutes the external and internal logic of the principle of the best interests of the child, forming a complete and feasible set of guidelines that provide a stable body of knowledge and a framework of thinking for dealing with matters involving children, especially various difficult and complex issues.

The Theoretical Foundation and Rule Building of the Regulation of Abuse of Superior Bargaining Power by Internet Platforms

La Sen

Abstract:The development of the platform economy poses new challenges to the Anti-Monopoly Law in regulating the abuse of market power by platforms. The traditional “prohibition of abuse of market dominant position” is ineffective in dealing with the abuse of market power by platforms. The superior bargaining power of Internet platforms stems from the particularity of platform competition. On the one hand, due to the role played by platforms in rule-making and market entry and the specific nature of cross-market competition, on-platform undertakings are dependent on platforms. On the other hand, compared with small and medium-sized competitors, platforms have certain advantages in terms of scale and users’ data. The abuse of superior bargaining power by platforms may also lead to the effect of eliminating and restricting competition. Therefore, it is reasonable to introduce a clause of “prohibition of the abuse of the superior bargaining power” in the Anti-Monopoly Law. The Chinese Anti-Monopoly Law establishes multiple goals, among which protecting fair competition in the market and safeguarding consumer interests and social public interests can provide a value basis for prohibiting the abuse of superior bargaining power. To regulate the abuse of the superior bargaining power by platforms, it is necessary to clarify the idea of the governance, the functional positioning and the analysis approach of this clause at the institutional level. In terms of governance ideas, there has been a trend of development in recent years from focusing solely on consumer welfare growth to emphasizing prevention and lowering the threshold for intervention, and prohibiting platforms from abusing their superior bargaining power is consistent with this trend. In terms of functional positioning, the prohibition of abuse of the superior bargaining power and the prohibition of abuse of a dominant market position have certain commonalities and differences. Both aim to safeguard the free competition opportunities for undertakings. The prohibition of abuse of the superior bargaining power can be regarded as an extension and effective supplement to the prohibition of abuse of a market dominant position. Superior bargaining power implies that it is difficult for transaction counterparties to find alternatives in the market, or small and medium-sized competitors lose the opportunity of free competition and are excluded from the market due to the aggressive commercial behavior of platforms. This problem cannot be solved through the prohibition of abuse of the dominant position. Moreover, the determination of the superior bargaining power of enterprises is based on the comparison of the two parties’ market power, which reduces the impact of uncertainty in the determination of the dominant position of a platform. To introduce a clause in the Anti-Monopoly Law that prohibits platforms from abusing their superior bargaining power, China should adhere to an analysis method based on market power, follow the approach of “defining the relevant market - determining that the undertaking has relative or superior bargaining power - identifying the abusive behavior”, consider the characteristics of competition in the platform economy, and weigh the impact of the behavior on different values and interests.

Substantive Review of Indirect Danger in Abstract Dangerous Crime

Li Zhi

Abstract: Abstract dangerous crime can easily be supported by legislation in the very important field of collective legal interest because its pre-sanction embodies proactive crime prevention. In the relevant provisions on abstract dangerous crime in criminal law, the inherent expression path of “conduct + consequence” is not adhered to and only the characteristics of “conduct” are presented. This can easily lead to not only the adoption of the formal interpretation of abstract dangerous crime in theory, which requires only an action of the body, but not infringement consequences, but also the irrational orientation of the judiciary when it comes to the punishment of abstract danger. The specific dilemma is that the formal interpretation of abstract dangerous crime can easily undermine the social basis of trust and further obscure the distinction between criminal justice and administrative justice. The unitary understanding of abstract dangerous crime can neither accurately summarize the dynamic structure of the crime, nor comprehensively review the various elements that embody the abstract danger and, as a result, is not operable. Meanwhile, discretionary non-prosecution, as a system aimed at alleviating the above dilemma, is easily restricted by the criminal policies of various regions, resulting in judicial injustice. In fact, all crimes require some kind of consequence, only that the consequence required in the abstract dangerous crime is the “external changes” that affect reality. To re-examine the nature and structure of abstract dangerous crime, it is necessary to make a substantive review of abstract danger. First of all, with respect to the time point of the judgment of the danger, the ex-post judgment based on fact can be generally maintained, but it is necessary to comprehensively evaluate the objective conditions and facts at the time when the act is carried out, so as to get an appropriate judgment of danger. What’s more, in the judgment of the fact of danger, it is necessary to judge the danger of legal interest infringement (indirect danger) with the help of various constituent elements and in combination with various facts. With regard to the basis of danger judgment, it is necessary to take abstract and generalized elements as the basis, and then review them with empirical insights in the social community. With regard to the method of danger judgment, it is necessary to carefully and accurately embody all aspects of indirect danger and review the danger in a three-dimensional manner. The danger should be empirically reviewed in light of the three elements, namely “degree”, “distance” and “severity”. However, due to the dynamic structure of abstract dangerous crime, it is necessary to establish different thresholds of criminalization for different abstract dangers in practice, so as to maintain the balance between the two interests of safety and freedom.

INTERNATIONAL LAW ISSUES

The Abuse of Process Objection in the Legal Settlement of Inter-State Disputes

Gao Jianjun

Abstract: Abuse of process is an existing notion in the legal settlement of inter-State disputes, but some basic questions about the concept still need to be clarified. Recently the respondents frequently raised the abuse of process objection in cases submitted unilaterally by the applicants to inter-State tribunals. This has occurred not only in cases before the International Court of Justice (ICJ) but also in the practice of the tribunals under the 1982 UN Convention on the Law of the Sea. So far, no abuse of process objection has succeeded before inter-State tribunals and no sufficient explanations for the issue have been offered by the tribunals from a positive perspective. Currently, the understanding of the abuse of process in inter-State litigation is still developing. As far as its nature is concerned, abuse of process is an objection raised by the respondent against the admissibility of the submissions of the applicant. It is an objection against the abuse of the dispute settlement procedure as a whole by the applicant, rather than the abuse of certain procedural rights by the parties in the proceedings. It is neither a plea on the merits nor an objection to the jurisdiction. If the respondent considers that the applicant has submitted to the tribunal any dispute beyond the jurisdiction of the tribunal or the applicant has not satisfied the pre-conditions to the jurisdiction of the tribunal, the respondent can raise the objection to the jurisdiction directly, rather than resorting to the abuse of process objection in such situations. Moreover, even if the respondent raises the abuse of process objection to the jurisdiction of the tribunal, it will be difficult for the objection to have any real effect. As far as the current jurisprudence is concerned, there is no direct causality between the jurisdiction of a tribunal and the abuse of process. The legal basis of the abuse of process objection is not the abuse of right doctrine. There are obvious differences between the concept of abuse of process and that of abuse of rights. Actually, its legal basis is a general principle of law, namely international tribunals should not exercise jurisdiction over the application that constitutes an abuse of process. Abuse of process includes the use of a process for an illegitimate purpose (subjective abuse) and the unreasonable use of a process (objective abuse). However, not all of the circumstances that may constitute an abuse of process can be used as the grounds for the abuse of process objection. As a residual defense, the abuse of process objection is fit for situations where the respondent has no other effective instruments to oppose the admissibility of the submissions of the applicant. The “exceptional circumstances” criterion that the ICJ put forward recently is appropriate for the abuse of process objection. As a whole, the abuse of process objection is not a powerful means of defense in the legal settlement of inter-State disputes, because the scope of its grounds is limited and it’s very difficult for the objection to succeed in a particular case. Accordingly, respondents should not expect too much of the effect that the objection may achieve in preventing the international tribunals from hearing the cases. Rather, they should take a more positive attitude toward dealing with litigations in order to safeguard their own interests more effectively.