THEME DISCUSSION: Frontier Issues of Digital Law
Rights Allocation for Structural Separation of Data Property Rights
Zhang Xinbao
[Abstract] The process of data value realization is mainly oriented toward circulation and cooperation, and data value should not be monopolized by a certain subject in the form of absolute property rights. The structural division of data property rights into “public data - enterprise data - personal data” establishes a structural rights system that conforms to the nature of data elements and the law of data value creation and realization. In the field of public data, public administration bodies collect and generate public data in the course of performing their duties, serving public administration rather than direct or indirect economic purposes, and they have administrative authority under administrative law to disclose and authorize the use of public data, but they are not subjects of data property rights. Although public service institutions are public in nature, they are still essentially market subjects with their own independent economic interests and are subjects of the data property rights. The public data collected and generated by them in the course of providing public services can be used for their own production and business activities, provided to other market subjects, or used to provide data services to other market subjects. In order to fully release the important value of public data as a factor of production, the system of openness and utilization of public data should be improved, and the implementation of an authorization mechanism under multiple utilization purposes should be explored. In the field of enterprise data, the confirmation of enterprise data means confirming that enterprises have the right to hold, utilize, profit from and dispose of enterprise data in accordance with law. Such a property right has the nature of in rem rights with certain dominance and exclusivity, and is a new type of property right alongside property rights and intellectual property rights. Enterprise data includes not only data collected and processed by enterprises in the course of production and operation activities that do not involve personal information and public interests, but also personal information data collected, public data legally obtained and processed, and data obtained through market transactions and other means by enterprises. Enterprise data authorization is a contractual mechanism for enterprises to grant others the use of data to which they have data property rights, mainly including data transaction, data services, joint processing, entrusted processing and other models. In the field of personal information data, personal interest should be allocated to individuals and property interest should be allocated to personal information data processors who have made labor input in accordance with the theory of “separation of personal and property rights”. As personal information data originates from personal information, the use of personal information data by enterprises should be restricted by the rules on the protection of personality interests in personal information.
A Comparative Study on Electronic Service and Electronic Filing
Zhou Cui
[Abstract] Information and data technology enables courts and parties to communicate with each other efficiently, thereby optimizing workflows, reducing management errors, and even easing judges’ work. Therefore, in recent years, various countries have continued to promote electronic communication (e-communication) reform in the field of justice with the goal of enhancing litigation efficiency and litigation economy. E-communication, also known as “elektronischer Rechtsverkehr” in Germany, consists of two parts: electronic service (e-service) and electronic filing (e-filing). For practical reasons, many countries, including China, have adopted and reformed uniform means of e-service and e-filing. In December 2021, China not only made minor amendments to the norms on electronic service (Article 90 of the Civil Procedure Law) but also introduced a general norm for electronic litigation, namely, “With the consent of the parties, civil litigation can be carried out online through information network platforms” (Article 16 Paragraph 1 of the Civil Procedure Law). As one of the earliest countries to implement e-justice reform, Austria has basically realized paperless communication between courts and parties since it amended the norms on electronic legal communication such as Article 89a of the Austrian Court Organization Act in April 2022, and professional groups such as lawyers and notaries have been required to conduct electronic legal communication since a long time ago. Taking Austria’s reform as its model, Germany reformed its own system of electronic legal interactions between courts and parties in 2013 and 2021, respectively, not only expanding access to secure interactions but also introducing and expanding the obligations of electronic interaction borne by professional groups. Through a legal amendment adopted on May 3, 2019, France allows court clerks, with the prior consent of the parties, to send notices, summons or receipts to parties through the DOJ portal (justice.fr). In 2018, the provisions regarding e-service in the U.S. (FRCP 5 (b) (2) (E)) were amended and lawyers were required to file pleadings and other documents electronically. These comparative experiences show that the nature and function of civil justice are understood differently, particularly with regard to service, in different countries that are at different stages of technological and economic development, leading to a wide variety of perceptions. As a result, the conception and design of e-service and even the electronic legal communication mechanism vary from country to country. Nevertheless, there is a clear consensus on the reform: the traditional norm structure, which regulates paper filing and physical service separately, is no longer practicable in the digital age. Legislators in all countries have begun to work towards a uniform regulation of the channels, objects, obligations and information arrival times of e-communication. It seems necessary for China to reconstruct the conceptual system of e-communication in the future and adopt uniform provisions on e-filing and e-service in a special chapter in the Civil Procedure Law.
The Proportionality of the Acquisition of Communication Record Data
Guo Zhilong
[Abstract] The acquisition of communication record data is an important system for fighting crimes and governing society. Relevant legal regulatory frameworks have been continuously introduced and updated in various jurisdictions. At the current stage, the system of acquisition communication record data should develop from the formal rule of law to the substantive rule of law. The current framework of communication privacy analysis is built on the simple, static and binary communication data structure, but its theoretical assumption of the third-party rule - the user data in the non-content data is actively provided by the user and the traffic data is retained in the third party after the termination of the communication process and is in a semi-public state while the content data, on the other hand, touches directly on the secret content of communications, but is often stored on the user’s own terminal - is increasingly difficult to establish in the increasingly complex modern information technology environment. The traditional distinction between legal protections based on content data and those based on non-content data is increasingly incompatible with the generation, exchange and storage of user data and traffic data in the operation of modern communication technology, and increasingly deviates from the legitimate expectation of personal privacy and personal information protection in modern communication, constituting an unreasonable distinction between the forms and types of communication data. In the future, a unified and standardized legal framework needs to be established to match the hierarchical data-acquisition measures for the implementation of the substantive rule of law. The complex dynamic and multivariate classification and hierarchical structure of communication data provide a practical alternative to the traditional privacy analysis, that is, the multi-hierarchy of the degree of rights intervention corresponds to the multi-hierarchy of the necessity of rights intervention. The scheme is flexible enough to adapt to rapidly evolving communication technologies. The classification of communication data can be summarized as a transparent and consistent three-level framework based on the specific classification of communication data. At the first level is general communication data; at the second level is important communication data; and at the third level is core communication data. Principled pragmatism takes into full consideration the gravity of possible harm, the possibility of harm and the urgency of harm. At the first layer are general harm and threat; at the second layer are serious harm and threat that should be punished by criminal law; and at the third level are extreme social harm and threat. Through the three levels of the degree of rights intervention corresponding to the three levels of the necessity of rights intervention, we can draw many meaningful conclusions. The acquisition of communications data must reflect the legitimate expectations of modern citizens of the right to privacy and the protection of personal information, help rebuild trust between the government and the people, and create a more connected future for human society.
THEORETICAL FRONTS
The Binary Code Characteristic of the Modern Legal System
Pan Weijiang
[Abstract] One of the fundamental characteristics of the modern legal system is that it operates strictly through the schema of the lawfulness/unlawfulness binary code. This means that all operations in the legal system are subject to and at the service of the adjudication that an action or claim is either lawful or not and there is no third possibility. One of the most important conditions of the emergence of binary code is the contingency of modern society, which means neither necessary nor impossible. More and more people realize that it is impossible to completely eliminate disputes. By judging disputes, the modern legal system can recognize different types of dispute and memorize them, and then use judicial decisions to make new legal rules. Through this process, it enhances both the sensitivity and the tolerance of modern society to conflicts and, to this end, it develops the binary code inside itself. The modern legal system constructs an artificial space of contingency in which lawfulness and unlawfulness can transform into each other. The schema of the lawfulness/unlawfulness binary code is asymmetry, which means that almost everyone pursue lawfulness, but not unlawfulness. Through this schema, the legal system combines its generality and specificity, thereby making itself much more sensitive to and capable of working more efficiently with the issue of legality. One of the important consequences of the binary schema is the paradox of law, that is, the problem of legality of law. In modern society, the rapid change of the contents of legal norms should not undermine the status of legal norms. In the schema of binary code, the status of a legal norm has nothing to do with its content but everything to do with which side it stays. The binary code is the structural characteristic of modern law, which is supplemented by the legal program inside the legal system. Because of the relationship between the binary code and the program, the modern legal system constructs itself as an operationally closed but cognitively open autopoietic system. The description and explanation of the binary code of the modern legal system is very important. It gives a brand-new answer to the question of “What is law?” and can explain the separation of law and morality much clearly. What is more, it can also explain the separation of law from politics, religion, economics, art, etc. The modern legal system is different from the modern politic system, the modern economic system, the modern art system, and the modern religion system exactly because they have different binary codes. It is also of great significance for understanding the transformation of China’s legal system and society. The function of law is to guarantee the stability of expectations. The binary code of the modern legal system is developed to serve this function. China is becoming a super-scale complex society, so the binary code of the modern legal system is also very important for the Chinese society.
Regulatory Boundaries of the Freedom of Commercial Speech
Long Jun
[Abstract] The freedom of commercial speech is the ideological market freedom in the field of the market economy, and the reasonable division of its regulatory boundary is an important basis for protecting the legitimate rights and interests of operators and maintaining the order of market competition. From the point of view of the form, the regulation of the freedom of commercial speech by public authorities is mainly manifested in restrictions on positive freedom and restrictions on negative freedom. The former includes restrictions on market access of tobacco advertising and drug advertising, and the latter includes the use of a mandatory labeling system for genetically modified food. The reasonableness of such restrictive measures should be tested by certain methods. Foreign courts have developed a representative method of “four-part analysis” in the judicial review of government regulation of commercial speeches, but it is difficult to directly apply this method in Chinese legal practice. Through the bidirectional transformation between “four-part analysis” and the principle of proportionality, a “new method of four-part analysis” that conforms to the objective reality of China can be developed. The first step of the analysis is to judge whether a certain commercial speech damages the interests of a third party or the public. If the answer is no, no restriction may be imposed on such speech. If the answer is yes, the analysis enters the second step, namely interest measurement. If the interest of a commercial speech itself is more worthy of protection than the interest of a third party or that of the public, restriction on such a speech is not allowed; otherwise, the analysis enters the third step, namely the judgment of whether the restrictive measure can achieve the purpose that public authorities intend to achieve. If the answer is no, the restriction is not allowed. If the answer is yes, the analysis enters the fourth step, that is, the judgment of whether the restrictive measure taken is proportional: if not, the restrictive measure is not allowed; if yes, the restrictive measure can be taken. Through the test with this new method, the following conclusions can be drawn: (1) the attitude of strict restriction rather than total prohibition should be adopted toward tobacco advertising. Among the specific restrictive measures, the prohibition of tobacco advertising in all types of mass media and public places is reasonable, while tobacco sponsorship activities and in-store advertising of tobacco monopoly outlets should be allowed. (2) The absolute and relative restrictions on the advertising of special drugs should be appropriately relaxed. Among them, absolute restrictions should be relaxed to allow advertising in professional journals; relative restrictions should be gradually relaxed to allow the advertising of prescription drugs in public places, with warnings about the dangers of such drugs. (3) The mandatory labeling system of genetically modified food meets the requirements of the “new method of four-part analysis” and is a legitimate measure to restrict the negative freedom of commercial speech of operators.
Legal Nature of Labor Relations - a Return to the Relationship ofPersistence Obligation
Shen Jianfeng
[Abstract] The exploration of the legal nature of labor relations should not be a factual description. Instead, it should start with the basic meanings of rights and obligations between parties in labor relations and solve the problem of classification of labor relations in the legal system, namely, it should adhere to dogmatic methods. The characteristic connotation of a labor relation is that the employee undertakes a subordination labor obligation, which is neither economical subordination nor organizational subordination, but personal subordination. Its basic characteristic is the limitation of the freedom of the employee. From the point of view that the essence of personality is freedom, it is a labor relationship of personality subordination. The system classification of these legal relations, which take personality subordination as their characteristic connotation, has undergone a qualitative process of evolution from personal law relations to community relations, both of which have a strong community color, and theories of personal relations or unequal relations are also derived from this process. The personal law relationship theory believes that there is a status relationship between the employee and the employer, which leads to directive constrain on the employee. This theory, derived from the feudal tradition, has disadvantages in terms of ideology, the possibility of institutional formation, etc. The community relationship theory insists that a production community relationship is formed between the employee and the employer, which generates a relationship of subordination and the employee’s compliance obligation. This theory has defects in institutionalism, contradictions in axiology, flaws in teleology and deficiencies in methodology. A variation of the community relationship theory is the theory of labor relations as partnerships. This theory, which confirms but exaggerates the element of cooperation in labor relations, is a utopia that treats labor relations as relations of cooperation. Generally speaking, the persona law relationship theory, the community relationship theory and the partnership theory all fail to explain the nature of labor relations. The objects of obligatory relations are human behaviors. With respect to the nature of obligatory claims, the confirmation of labor relations as obligatory relations would not derogate from an employee’s personality. The main performance obligation in labor relations is mainly determined by the time factor, which is in line with characteristic of the relationship of persistence obligation. The legal technique of materializing the obligatory content through the employer’s directions and decisions can well coordinate relations between the claim nature of obligation and the constraint by directions or other’s decisions in labor relations. Therefore, labor relations are neither personal relations nor unequal relations, but a long-term transaction and persistence relations of materialization of the right to the performance of labor enjoyed by the employer. The dogmatic structure of labor law should be developed on this basis.
The Linkage Between Civil and Criminal Aspects of Trademark Protection
Liu Tieguang
[Abstract] The disconnect between the civil and criminal aspects of trademark protection is manifested in the identification as trademark crimes of acts that do not constitute trademark infringement, the “inversion” between civil liability and criminal liability, and the incorporation in disguised form into the scope of criminal law regulation of trademark infringements that should not be regulated by criminal law, thus making the crime of illegally manufacturing registered trademark an “all-inclusive crime”. The reason for this is that, in the determination of trademark crimes, either the existence of trademark infringement is ignored, or any type of trademark infringement becomes a prerequisite for the establishment of trademark crimes, or the actual status of the use of the infringed trademark is ignored. Since the same legal interests are harmed by both trademark crimes and trademark infringements, the establishment of a trademark crime presupposes the existence of a trademark infringement. Articles 213 and 214 of the Criminal Law only choose to regulate “double identical” trademark infringements, while the trademark crime stipulated in Article 215 cannot be premised solely on the acts specified in Article 57(4) of the Trademark Law. According to the principle of legality, the manufacture and sale of registered trademark marks for “double identical” trademark infringements as stipulated in Article 57(1) of the Trademark Law is a prerequisite for the establishment of the trademark crime under Article 215 of the Criminal Law. Therefore, the establishment of the crimes stipulated in Article 213, Article 214 and Article 215 of the Criminal Law should be premised on the existence of a “double identical” trademark infringement. The Trademark Law has always adopted an attitude of negation and no active protection towards the hoarding trademark and this attitude should also be adopted in the determination of trademark crimes, which should be premised on the existence of a “double identical” trademark infringement, and become a guideline to be followed in linking the civil and criminal aspects of trademark protection. In this regard, defense against trademark infringement and trademark use should be used as a filtering rule to determine the existence of the “double identical” trademark infringement as the prerequisite of the establishment of the crime of counterfeiting a registered trademark and the crime of selling counterfeit registered goods; acts not intended for “double identical” trademark infringement should be excluded from the crimes of illegal manufacture or sale of illegally manufactured registered trademarks; and the actual loss of the right holder should be the precondition of the establishment of the crime in the case of an infringement involving trademark hoarding.
Clauses on Positive Repentance in Chinese Criminal Law: JurisprudentialBasisand Legislative Model
Zhang Zhigang
[Abstract] Positive repentance, as a special provision on the remission of criminal penalty for accomplished offenses, bears great resemblance to, but is essentially different from, discontinuation. Scattered in special provisions of the Criminal Law, clauses on positive repentance lack internal integrity due to the diverse criminal policy objectives. However, two functional types of positive repentance can be found in the current clauses, namely, preventive positive repentance and compensatory positive repentance. Preventive positive repentance is more commonly seen in the constitutive elements of early intervention of criminal penalty, such as dangerous crime, attempted act crime and illegal possession. In these crimes, the separation between formal accomplishment and substantial accomplishment leads to a “post-crime space”, making it possible for the perpetrator to take active action to avoid the result of legal interest infringement. On account of this, the underlying jurisprudential basis of punishment remission for preventive positive repentance is the realization of the purpose of criminal penalty as well as the early intervention of criminal penalty from the perspective of the perpetrator. Besides, compensatory positive repentance is mainly prescribed in provisions on economic crimes and property crimes where the result of legal interest infringement can be calculated by the amount of property loss, aiming at making up the consequent substantial legal harm, and the jurisprudential basis of punishment remission is victim protection. If the internal differences in the types of positive repentance are ignored, the diverse policy objectives behind various clauses will inevitably also be neglected, thus affecting the choice of legislative mode of positive repentance clauses. The randomness of positive repentance clauses in the current law does not mean that there is a legal loophole. Allowing the application by analogy of positive repentance will impede the achievement of the substantive justice pursued by application by analogy, thereby further undermining the fairness and legal stability of the application of criminal law. Therefore, the requirements of the substantive law of punishment remission for positive repentance can only be met through legislation. It can be predicted that the legislative mode of pure special provisions can’t meet the practical needs of judicial practice, while the legislative mode of pure general provisions fails to take the internal differences of positive repentance into consideration or coordinate with provisions on discontinuation. Thus, the practical choice is to adopt a dual legislation model as a compromise. On the one hand, the analogy of preventive positive repentance to discontinuation can be stipulated in the general provisions. On the other hand, a trans-constituent similar crime pattern can be established for the application of compensatory repentance by using the model of special provisions and taking Article 167 of the Austrian Criminal Law as a reference.
Result Avoidance Possibility in Negligent Crimes - Normative Structureand Practical Application
Yang Xufeng
[Abstract] Result avoidance possibility is an indispensable element of negligent crimes. With regard to its structure, there are many representative schemes, such as the theory of behavior, the theory of violation of the duty of care (or the theory of perpetrating act), the theory of result, the theory of conditional relation, and the theory of result imputation. Although various kinds of schemes fully demonstrate the problem consciousness of the theorists, they have left many questions in systematic thinking unanswered. The single-positioning structure can easily split the practical judgment and greatly limit the scope of application and explanatory power of result avoidance possibility, so it is necessary to consider the possibility of integration of the above opposing schemes. The difficulty of the “integration theory” lies in finding a suitable integration path and a legal basis. The introduction of the perspective of ex-ante judgment and ex-post judgment can break the existing shackles of oppositional thinking, which is not only a different point of judging time but also the “combination of behavior norms and sanctions norms” thinking behind it. A behavior norm is the expectation of the standard behavior pattern established to prevent specific results. If compliance with the rule exceeds the actor’s range of possibility, the result avoidance cannot be made obligatory. The purpose of sanction norms is to ensure the effectiveness of behavior norms. If the compliance with behavior norms is ineffective in avoiding the result of infringement on legal interests, the effectiveness of behavior norms is out of the question. Reflected in the structure of result avoidance possibility, the ex-ante result avoidance possibility should be regarded as the premise of the duty of care that includes the dual judgment of the necessity and possibility of the performance of the duty of care. If it is negated, the behavior norms in negligent crime cannot be established. The judgment logic of the necessity of the performance of the duty of care is no (objective) foreseeability of the result → no necessity of taking the result avoidance measures → no ex-ante possibility of avoiding the result → no duty of care. The judgment logic of the possibility of the performance of the duty of care is no possibility of performing the duty of care → no ex-ante possibility of result avoidance → no duty of care (namely no violation of the duty of care). The ex-post possibility of result avoidance should be regarded as an issue of result imputation, which is in essence the confirmation of the effectiveness of the performance of the duty of care. If it is negated, the sanction norms in negligence crimes cannot be applied. It takes the “legitimate alternative behavior” as the analytical tool, and its judgment logic is no effectiveness of the performance of duty of care → no ex-post possibility of avoiding result → no attribution of the result of legal interest infringement to the breach of duty of care. By clarifying the legal theory behind it, the possibility of result avoidance can be interpreted in a new way in normative theory.
The Openness of Plea-bargaining Procedure and Its Path Selection
Zhang Qing
[Abstract] The reform of the system of leniency for admitting guilt and accepting punishment has significantly simplified criminal trial procedures and shifted the focus of litigation procedures to an earlier stage. This structural change undermine the status and weakened function of the criminal trial as the most complete rights protection mechanism and the guardian of pre-trial litigation rights, thereby posing more challenges to the litigation rights of criminal suspects. In view of this, the traditional trial-focused procedural safeguards, especially procedural openness measures, should naturally be extended to the stage of pretrial plea-bargaining procedure to ensure the minimum standards of transparency and legitimacy are met at the stage of prosecution-defense negotiation. From the perspective of jurisprudence, the core of principle of openness should be guaranteeing the right to know and the autonomy of interested litigants and ensuring the reviewability, supervisability and accountability of the negotiation process. The openness of the plea-bargaining procedure is obviously different from the openness of the trial in terms of stage, object and scope. Moreover, due to the uniqueness of the litigation stage, the realization of the openness of the procedure requires not only the appropriate formal openness to the parties and other relevant personnel but also such essential elements as the disclosure of key information, full notification of rights and obligations, and maintenance of the transparency of the process itself. A review of the institutional arrangement and practical operation of the current plea negotiation system in China shows that this system is a prosecutor-dominated prosecution-defense negotiation mechanism without direct intervention by the judge. Although the Supreme People’s Procuratorate has issued a series of documents aimed at enhancing the transparency of the procedure in recent years. However, there is still a big gap between the current practice and the general requirements for the disclosure of the procedure. From the perspective of comparative law, there are three typical approaches to the openness of the plea-bargaining procedure: the prosecution-defense dual negotiation approach, the judicial participation approach and the judicial dominance approach. Among them, the prosecution-defense dual negotiation approach and the judicial dominance approach constitute the two endpoints of openness at the bottom and top, respectively, while the openness of the judicial participation approach lies in between the two endpoints. Based on the local context, in optimizing the approaches to the openness of the plea-bargaining procedure, China should take the judicial participation approach as a reference, appropriately introduce the judge’s early intervention mechanism, strengthen the information disclosure obligation and the notification obligation of specialized agencies, and improve the institutional guarantee for the formality and transparency of the negotiation process, so as to ensure that it complies with the minimum requirements of due process of law.
Basic Norms and Evaluative Standard for the Transition from PrivateProsecutionto Public Prosecution - an Analysis Based on the State’sProsecuting Interestin Criminal Justice
Mou Lyuye
[Abstract] An analysis from the perspectives of normative doctrine, protection of legal interest, practical needs, and legal dogmatics shows that the private prosecution system mainly aims at preventing the abuse of non-prosecution by the state, working as a restriction rather than an exclusion of public prosecution. The non-exclusive and non-supplementary relationship between private and public prosecutions can not only meet the requirement of prosecuting crimes but also provide reasonable dogmatical interpretations for relevant theories and normative rules. Clarifying the relationship between private prosecution and public prosecution can lay a normative foundation for the transition from private prosecution to public prosecution. A procuratorial organ can take over a private prosecution and turn it into a public prosecution if the circumstance of the case meets certain standards. In the “Hangzhou Defamation Case” prosecuted in 2020, the provision of “seriously endangering social order and national interest”, relied on by the prosecution in turning private prosecution into public prosecution, has such problems as vague standards, absence of value restraint and lack of procedural transparency. Therefore, China should establish the standard of the state’s prosecuting interest, which, as the concrete embodiment of public interest at the stage of criminal prosecution, has such values as restricting non-prosecution, safeguarding basic rights, providing a set of coherent and systematic norms for implementing the systems of prosecution-upon-claim, transforming private prosecution into public prosecution, and making non-prosecution decisions, and promoting theoretical dialogues among criminal justice, constitutional law, other branches of law, and other disciplines (such as economics and political science). Factors for evaluating the state’s prosecuting interest include internal and external ones. Internal factors focus on the culpability and necessity of crime prevention, and external factors embed criminal justice into the larger structure of social governance. Establishing the criteria of the state’s prosecuting interest are necessary for making detailed rules for turning private prosecutions into public prosecutions. The application of the standard of the state’s prosecuting interest is a process of “re-weighting under asymmetric situations”, requiring procuratorial organs to consider various considerations and individual cases holistically and demonstrate the necessity of turning private prosecution into public prosecution. The process of re-weighting should meet three requirements: firstly, the state’s prosecuting interest must be holistically evaluated in light of the purposes of punishment; secondly, elements of a crime and factors relating to the state’s prosecuting interest cannot be repeatedly evaluated; and thirdly, caution must be exercised towards the role of statistics in assessing the culpability and necessity of prevention in individual cases.
INTERNATIONAL LAW ISSUES
Sources of Trade Sanctions against China in International Rulesand China’s Response
Hu Jiaxiang
[Abstract] Trade sanction is a kind of economic sanction with a long history. In practice, the restrictive measures taken by an importing country against imported products for such reasons as unfair trade behaviors, a threat to national security, or protection of the common interests of mankind belong to “active sanctions”. In contrast, the measures taken by a country to cut off its trade relationship with another country through law-making or administrative measures, so as to isolate it in international trade, can be regarded as “negative sanctions”. China is one of the WTO members receiving the largest number of trade sanctions, which are mainly imposed by the United States and some other Western developed countries. Trade sanctions imposed on China used to be adopted unilaterally by a country based on its existing domestic laws, including specific laws and comprehensive laws, that are not specifically targeted at China. However, the current trade sanctions imposed on China have shown two new characteristics. One is that a few countries represented by the United States have begun to tailor-make legislations that specifically target China, such as the 2022 Chip Act. The other is that regional trade agreements represented by USMCA contain some unfriendly provisions, such as the “poison pill clause”, aimed at isolating China. Against the background of economic globalization, the trade legislation of individual countries and regional trade agreements are inextricably linked to the multilateral trade regime. Although these trends in legislation are inseparable from the spread of unilateralism in some countries and the rise of anti-globalization thoughts in the world, they also reflect the limitations and helplessness of the multilateral trade regime with the WTO as its main body. To cope with wave after wave of sanctions imposed by some countries, China has adopted a series of laws and departmental rules, such as the Anti-foreign Sanction Law, the Export Control Law, the Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures, and the Provisions on the Unreliable Entity List, as the legal base for taking countermeasures. Generally speaking, these measures are defensive legislations that are basically responses to sanctions imposed by other countries on China. The actual effect of these countermeasures remains to be seen and the legal status of some organs implementing these measures is debatable. While abiding by WTO rules and upholding the multilateral trade system, we should also learn to use these rules to protect our own interests, provided that this protection is not inconsistent with our international obligations. This is what we should be prepared for in the great changes not seen in a century. As a responsible big country, China will not only firmly protect its own interests but also make more contributions to upholding the multilateral trade regime and world peace.
SPECIAL COLUMN ON MARXIST LAW SCIENCE
Strategies for Realizing the Social Effect of Judicial Decisionsand Their Optimization
Zhou Lin
[Abstract] In recent years, China has made remarkable achievements in poverty eradication, and how to prevent people lifted out of poverty from slipping back into poverty is a long-term issue faced by China that not only affects the actual effect of poverty eradication but also determines whether China can ultimately achieve common prosperity. In practice, Chinese courts have taken “preventing people lifted out of poverty from slipping back into poverty” into judicial consideration and used it as a ground for reducing the legal liability of the parties involved in the case, which is a unique judicial phenomenon in the post-poverty alleviation era. Relevant cases show that Chinese courts have adopted two different positions on the issue of “preventing people lifted out of poverty from slipping back into poverty” in specific cases: in some cases, mainly criminal cases, enforcement cases, and state judicial assistance cases, courts have adopted a relatively positive attitude towards taking this issue in judicial consideration, while in other cases, mainly civil and administrative cases, Chinese courts have adopted a relatively cautious attitude towards taking this issue into judicial considerations. Each of these two kinds of judicial positions has its own internal causes, which are mainly embodied in the impact of the position of judges in different case structures on the exercise of judicial discretion: when the judge plays the role of “mediator” in the case structure, his/her judicial discretion is restricted by both parties and he/she can only make judicial decision within the existing normative system; however, if the judge plays the role of “supervisor” in the case structure, he/she has more leeway to “show leniency beyond the law” due to the lack of strong constraints from the other party and the policy incentives under the guidance of specific social functions. Based on the above, Chinese judges have formed two distinct kinds of judicial strategy: strict normative judicial strategy and social functionalist judicial strategy. However, the application of these two judicial strategies inevitably leads to “polarization” in judicial practice, which not only affects the effective realization of preventing people lifted out of poverty from slipping back into poverty, but also undermines the value of justice to a certain extent. In view of this situation, China should improve the application of rules of judicial strategy at two levels: one is to establish the priority status of strict normative judicial strategy in application, and the other is to clarify the reasoning obligation of judges in social functionalist judicial strategy. Through such measures, China can, on the precondition of not deviating from the principle of the rule of law, maximize the social effect of the consideration of preventing people lifted out of poverty from slipping back into poverty and add “warmth” to judicial judgments.
