SPECIAL COLUMN ON MARXIST LAW SCIENCE
Research on the Power of the NPC to Amend Basic Laws
Liu Yida
[Abstract]In China, laws are divided into “basic laws” and “non-basic laws”. The research on basic laws and the power to amend them focuses on the power of the NPC Standing Committee to amend basic laws. However, amending basic laws is an important part of the state legislative power of the NPC. In addition, the power of the NPC to amend basic laws and the power of the NPC Standing Committee to amend basic laws are the “two sides of one body”. Therefore, the study of the power of the NPC to amend basic laws should not be ignored. To uphold the supreme status of the NPC in the constitutional system, the 1954 Constitution stipulated that only the NPC had the state legislative power, including the power to amend laws. The NPC Standing Committee had no power to enact laws, but could only enact decrees. The 1982 Constitution reconfigures the state legislative power by creating the concept of “basic laws” and stipulating that the NPC and the NPC Standing Committee shall both have the power to amend basic laws. According to the provisions of articles 62 and 67 of the 1982 Constitution, the NPC has the power to enact and amend basic laws, while the NPC Standing Committee has the power to enact and amend non-basic laws as well as a limited power to amend basic laws. The provisions of the current Constitution and the Legislation Law on the state legislative power constitute the general basis for the power of the NPC to amend basic laws. In order to avoid frequent amendments to laws, certain laws such as the Hong Kong Basic Law contain clauses on the power to amend the law, stipulating that “the power to amend this Law shall be vested in the NPC”. Those clauses provide a concrete basis for the NPC to exercise the power to amend basic laws. In the past practice, the basic laws amended by the NPC were mainly the laws related to the Constitution, such as the Organic Law of the NPC. Although the frequency of amendment to basic laws by the NPC is not high and is continuously declining, the amendments made by the NPC are usually drastic. In order to ensure that the NPC can better exercise its power in accordance with the Constitution, it is necessary for the NPC Standing Committee to uphold the status of the NPC as the highest organ of state power and remain modest in the amendment of basic laws. It is also necessary to specify the provisions in basic laws that can be amended only by the NPC, such as those on the organization, functions and powers of the NPC. Moreover, it is important to improve the ability of the NPC to amend basic laws by such means as extending the session period.
THEME DISCUSSION: Standardizing Criminal Sentencing
An Empirical Study on Probation Sentencing Modes
— A Practical Review of 4,238 Verdicts in Criminal Cases of Dangerous Driving
Liu Chongliang
[Abstract]In recent years, despite the expansion of minor crimes, the rate of the application of probation remains low and the improvement of sentencing mode is a technical solution to this problem. After the amendment to the substantive conditions of probation, there is a major controversy over the judgment criteria of the substantive conditions of probation, which can be summarized as a parallel pattern and a progressive pattern. The proponents of the parallel pattern believe that the four substantive conditions of probation are in an additive relationship, while the proponents of the progressive pattern believe that a minor circumstance of crime and a guilty plea are the prerequisites for the determination of no risk of reoffending. The substantive difference between the two patterns lies in their different understandings of the legitimacy of probation. To find out which mode judges adopt in judicial practice, 4,238 verdicts on the crime of drunk driving were collected as research samples. A theoretical hypothesis was proposed: if the decision on whether to apply probation is based on both moral and preventive factors, it indicates that judges tend to favor the parallel pattern; if the decision is based solely on preventive factors, it indicates that judges tend to favor the progressive pattern. The results of the model analysis show that the sentencing of probation is more influenced by moral factors, indicating that judges tend to favor the parallel pattern. However, the parallel pattern does not conform to the basic legal principles and criminal justice policies of contemporary China. First, the parallel pattern makes it difficult for probation sentencing to embody the fundamental attributes of probation. Probation sentencing is essentially a preventive sentencing measure. Second, the parallel pattern may lead to repetitive evaluations of moral factors in probation sentencing. If the moral factors play a decisive role in deciding whether to apply probation after the main sentence is determined, it may violate the principle of prohibition of repetitive evaluations. Third, the parallel pattern ignores the core position of reoffending risk assessment in probation sentencing. Fourth, the parallel pattern makes the conditions more stringent for and leads to unreasonable restrictions on the application of probation. Therefore, to optimize the probation sentencing mode, we should: first, adhere to the progressive pattern of the binary sentencing mechanism, which not only embodies the basic attributes of probation but also provides technical solutions for expanding the application of probation; second, establish a universal application mode for minor crimes and prioritize the application of probation; and, third, design a probation reoffending risk assessment tool, improve the procedure for assessing probation reoffending risk, and build a probation sentencing mode centered on reoffending risk assessment.
Procedural Paradigm of Death Penalty Sentencing
Sun Hao
[Abstract]The application of the death penalty in focus cases has always been a hot topic. In view of the great difference between “sentence of life” and “sentence of death”, adopting a simple reasoning method in criminal judgment in such cases is not appropriate and the deeper causes of this problem are the vagueness, narrowness and lack of operability of the relevant judicial decision-making criteria. On the one hand, when judges make death penalty decisions, they tend to pay more attention to the specific performance of the defendant in criminal activities than to the evaluation of the soundness of his personality and the possibility of restoration from the perspective of socialization. On the other hand, the trial process of death penalty cases cannot provide a solid basis for the final judicial decision-making but rather strengthens the internal subjective bias of the judges. For the deprivation of the defendant’s right to life, the reasonableness of judicial discretion depends on the self-consistency of the relevant proof process, and the tendency of judicial arbitrariness should be avoided as much as possible. The broader goal of the prudent application of the death penalty may have a better chance of being achieved if the steps of assessment of the severity of the crime, personal development and the likelihood of correction are integrated into the planning of an independent sentencing process in an orderly manner. Of course, the corresponding procedural framework requires the following consensuses as necessary prerequisites: (a) the death penalty with immediate execution and the death penalty with a two-year reprieve represent different types and intensities of punishment in the environment of procedural law, and should be treated differently; (b) death penalty decision-making should follow the logic process of “from the light to the heavy”, otherwise it would easily create the paradox that the death penalty with immediate execution takes precedence over the death penalty with a two-year reprieve; (c) it is necessary not only to place the death penalty discretion in the special court process, but, more importantly, also to clarify concrete litigation conducts in this process and their objectives. Moreover, in terms of supporting arrangement of trial organization, the procedural creation of death penalty discretion should echo the social moral concept embedded in the people’s jury system, and the functional presupposition of sentencing suggestions should be made full use of, so as to reasonably allocate the burden of proof at different stages. Such procedural paradigm should be embodied in the initial trial, and reasonably link the relief trial and death penalty review procedures, so as to achieve a proper division of labor between different trial levels. As a result, the specific choice between immediate execution or suspension of execution can no longer be summarized in a few words. The logical discourse based on empirical investigation not only is enough to exclude subjective assumptions but also can ensure its rigor and rationality through meticulous evidence analysis.
THEORETICAL FRONTS
The Practical Logic and Operational Adjustment of the Court Supervision Mechanism
Guo Song
[Abstract]The supervision mechanism is a special institutional arrangement for the internal governance of the court system in China. From the perspective of practice, the supervision of the court system not only tends to be stable in organizational composition, but also relatively mature in specific operations, and has become an important tool for task promotion, organizational mobilization and resource allocation. The supervision mechanism is generally activated in the context of the conveyance and implementation of the spirit of important meetings and documents, the promotion of key tasks, the resolution of difficult problems and complex contradictions, and the handling of specific cases. In practice, supervision activities can be divided into regular supervision and mobile supervision. The former refers to the supervision driven by the relevant organizational goals of the court, while the latter is triggered by a problem or sudden risk that arises in the operation of the court. In a complex governance situation, control logic, cost logic and bureaucratic logic together constitute the institutional logic of the court supervision mechanism. Control logic explains why supervision is needed in the operation of the court system, cost logic reveals the mechanism for selecting and determining supervision matters, and bureaucratic logic answers the question about the time node of the start of supervision. From the perspective of practice, the supervision mechanism outputs considerable governance performance, thus making up for the shortcomings of the regular governance mechanism. However, its practical operation also has inherent limitations such as the strengthening of administrative elements in bureaucratic relations, high-cost operation, and information dilemmas. In order to give full play to the governance efficiency of the supervision mechanism, in the future, China should reform the supervision method on the basis of limiting the scope of supervision, and continue to promote the institutionalization of the supervision mechanism itself. Under the reality of the coexistence of movement-style governance and bureaucratic regular governance within the court system, the supervision mechanism is an important channel connecting the two governance modes, constituting the "Third Sphere" of internal governance of the court, and will continuously play an important role in regulating the bureaucratic relationship of the court system and realizing the court’s organizational goals. In this regard, the specific operation, actual effects and operation difficulties of the supervision mechanism are all important empirical themes for us to observe and analyze the internal governance and daily operation of courts in China.
The Legal Effectiveness of Collusive Sham Acts
Zhai Yuanjian
[Abstract] Article 146 of the Chinese Civil Code is a new provision on collusive sham acts. According to the principle of autonomy of will, a sham property act is invalid between the parties and the effectiveness of a hidden property act depends on whether the corresponding substantive and formal requirements of the act could be met. When a property hidden act does not contain any mandatory formal requirement and the sham act has already contained such requirement, the effectiveness of the collusive sham is not affected. In addition to shaming the nature or content, the parties may also sham the subject of the act by implementing a pure nominal act. A pure nominal act could be established only when all three parties - the name borrower, the name lender, and the counterparty - participate in the collusive sham. In a pure nominal act, the name borrower, not the name lender, should be regarded as the real party. The special nature of identity acts is not sufficient to exclude the application of the general rule that a sham act is void between the parties. A sham marriage in which the parties agree to neither exercise marital rights nor perform marital obligations should be regarded as null and void. It would be a rigid interpretation of the relevant provisions if we do not recognize collusive sham as a cause of defect in the effectiveness of marriage acts, and it would also be an improper understanding of the nature and function of marriage registration. Recognizing collusive sham as a cause of defect in the effectiveness of marriage acts would be more in line with the principle of autonomy of will and the requirements of systematic thinking in the application of laws and more conducive to building a complete system of norms for defects in the effectiveness of marriage acts and dealing with the problems of incidental effects of marriage. In a sham divorce, the marriage relationship is terminated because both spouses jointly applied for divorce registration and received a divorce certificate. Sham divorce leads to the termination of the marriage relationship not because the intention expression of fake divorce is valid, but because both spouses jointly applied for divorce registration and received a divorce certificate, and their marriage relationship ends due to lack of marriage registration. It is necessary to generally recognize that the invalidity of a sham act must not be used against a bona fide third party and, in the absence of an explicit provision to that effect in the Civil Code, such loophole can be stopped by overall analogy.
A Systematization of the Trademark Indirect Infringement Regime
Cai Yuanzhen
[Abstract] China’s trademark indirect infringement rule is not sufficient in theoretical logic and systematic construction to be viewed as a regime. Art. 57 of the current Trademark Law covers indirect infringement, yet its model is flawed in three aspects: firstly, it blurs the boundary between indirect and direct infringements, secondly, it obstructs the implementation of the trademark infringement system, and thirdly, it leads to the coercion of legislative reasoning by the pragmatism of law, thus deviating from the essence of trademark infringement theory. The constituent elements of trademark indirect infringement generally include indirect act, subjective intent, and direct infringement, the theoretical interpretation and judicial application of which would considerably impact the effectiveness of the rule of law. The satisfaction of the indirect act element should be determined by using the “supply of substantive convenience” as a strict criterion. The current categorization of contributory acts lacks a basic pattern, hence is overly repetitive and miscellaneous, and accompanied by the potential judicial risk of extensive interpretation of contributory infringement. The “unlawful printing of marks” clause, although its independent existence does not seem to have much significance, can set an important example for the drafting of the “trademark indirect infringement provision” in the future. In terms of the satisfaction of the subjectivity element, we should take the “intentional action criterion” as the bottom line of trademark indirect infringement and limit the concept of intention to “direct intention” only. The “subjective fault criterion” can be applied to cyberspace managers and trademark printers as an exception. For the satisfaction of the direct infringement element, the actual existence of direct infringement is no longer an absolute judicial rule and can be downgraded to a “quasi-element”. Differentiating indirect infringement and joint tort is not only feasible but also gives independent legal significance to the indirect infringement regime. The essential question regarding trademark indirect infringement liability lies solely in damage compensation and should focus on the application of punitive damages. The imposition of punitive damage in such cases complies with the trademark regime’s purpose, function and conditions for application and therefore is both reasonable and feasible. The judicial predicament of imposing punitive damage on indirect infringers only lies in the calculation of the actual amount of the damage, especially the base number. Making the “reasonable multiple of royalties” as the base number requires drawing experiences from the “implied license” rule. In case the base number is completely incalculable, indirect infringers can be alternatively punished by aggravated statutory damage. When imposing punitive damage on indirect infringers alone, judicial authorities should uphold the principle of “avoiding comprehensive compensation” and the principle of “limited repetitive punishment”, so as to balance the severity and prudence of the regime.
Normative Identification of an Undertaking’s Act of Facilitating Others to Reach a Monopoly Agreement
Ding Maozhong
[Abstract] Prohibiting undertakings from facilitating others to reach a monopoly agreement is a new content added to the revised Anti-Monopoly Law. In nature, it is not a new category of monopoly agreement introduced by the revised Anti-Monopoly Law, but rather a remedy for the focus omission in the original Anti-Monopoly Law regarding factors that can lead to the formation of monopoly agreements. According to legal norms, an undertaking’s act of facilitating others to reach a monopoly agreement should consist of the subject element, the conduct element, and the result element. The subject element of the act is that the undertaking must be the one defined in Article 15 Paragraph 1 of the revised Anti-Monopoly Law, namely, “a natural person, a legal person, or an unincorporated organization that engages in the production or distribution of commodities or the provision of services.” Natural persons, legal persons, and unincorporated organizations providing administrative services are not undertakings in this context. With the exception of profit-making legal persons and unincorporated organizations, entities providing uncompensated services are also not considered undertakings in this context. Branches are not undertakings in any situation. Subsidiaries can be considered as undertakings, but the relationship between the parent company and subsidiaries should not be categorized as that between undertakings facilitating others to reach monopoly agreements and other undertakings. The conduct element of the act is that there must be an act of organizing other undertakings to reach monopoly agreements or providing substantive assistance for other undertakings to reach a monopoly agreement. Transmitting specific and identical information about a monopoly agreement to two or more undertakings other than oneself constitutes organizing. An act is considered as providing substantive assistance if a subjective fault exists and the act not only is necessary for reaching a monopoly agreement but also plays a direct role in the formation of a monopoly agreement. The result element is that the conduct must lead to the result of other undertakings reaching a monopoly agreement. As long as other undertakings clearly express affirmative intentions regarding a monopoly agreement or implement a monopoly agreement, which has a causal relationship with the undertaking’s act of organizing or providing substantive assistance, the act falls within the scope of causing other undertakings to reach a monopoly agreement. The types of monopoly agreements continue to include only horizontal and vertical monopoly agreements. Those that comply with Article 18 Paragraph 2 of the revised Anti-Monopoly Law or the “safe harbor” system should not be considered monopoly agreements.
Codifying Environmental Health Risk
Wu Kaijie
[Abstract] Environmental health risk refers to the kind of risk that human activities or natural activities act on environmental media, cause pollutants or other hazardous substances to transform and migrate through the environment into human bodies, and ultimately harm public health. Currently, policy responses to environmental health risks are triggering changes in the environmental law system and there is an urgent need to clarify the value orientation and achieve systematic improvement of the environmental health system. Not only the potential conflict between environmental protection and economic development is universal, but also the protection of public health is not always going in the same direction as the protection of the environment itself. Therefore, the formulation of environmental health norms will inevitably be faced with the weighing of different interests. After the revision of the Environmental Protection Law in 2014, the environmental law system has become increasingly clear in its pursuit of the value of prioritizing the prevention of health risks, including the relative priority of public health interests over economic development interests and other environmental public interests, as well as the precautionary principle in addressing environmental health risks. The value pursuit of prioritizing health risk prevention does not necessarily lead to the creation of a new regulatory system. Priority should be given to the integration of the new value pursuit into the existing regulatory system. The current environmental law system, however, does not give clear priority to the value of public health interests, lacks an “integrated management” model for the prevention of environmental health risks, and fails to establish a coordinated and harmonized “goal-instrument-enforcement” regulatory structure. As a result, it faces insurmountable limitations in meeting the needs of priority prevention of environmental health risks. The codification of environmental law provides the opportunity to realize the comprehensive integration of the value and the legal system. In order to fully express the value of prioritizing health risk prevention, the environmental code should first establish a risk classification system for priority areas, identifying special areas and populations to be prioritized for protection and special pollutants to be prioritized for risk prevention; and then establish a whole-process system for risk assessment and management, integrating the concept of risk prevention into the existing “ends - means - enforcement” regulatory structure. Environmental health provisions should adopt a structure of “general provisions + special provisions” to realize the systematic expression of the value of prioritizing the prevention of health risks in the environmental fields of pollution prevention and control, nature and ecology protection, and green and low-carbon development.
Argument Against the Criminalization of Minor Acts of Violence
Zou Bingjian
[Abstract] Under the current legal system in China, minor acts of violence usually do not constitute a crime. This situation has been criticized by many Chinese legal scholars who believe that China should establish new charges in its criminal law to punish minor acts of violence. Moreover, some scholars suggest that the offense of intentional injury should be explained broadly to cover minor acts of violence. This article refers to the above two viewpoints as the theory of the criminalization of minor acts of violence. This theory has a significant influence in the Chinese criminal law academic community, yet its validity remains questionable. The issue of whether minor acts of violence should be criminalized can be analyzed from three perspectives: legitimacy (retribution), necessity (prevention), and feasibility (costs and benefits). Firstly, the criminalization of minor acts of violence lacks legitimacy. China’s current criminal law follows a legislative model that combines qualitative and quantitative elements. Within this framework, the degree of unlawfulness exhibited by minor acts of violence does not meet the threshold for criminalization. Secondly, the criminalization of minor acts of violence lacks necessity. A central premise of the theory advocating such criminalization is that the deterrent effect of Chinese law against assault and injury is insufficient, thus necessitating the inclusion of minor acts of violence in the scope of criminal offenses to enhance the deterrent force of Chinese law against such acts. However, this premise is tenuous. On the one hand, statistical data demonstrates that the deterrent effect of Chinese law against assault and injury is sufficient. On the other hand, assuming that there is a need to augment the deterrent effect of Chinese law against assault and injury, the optimal method to achieve this goal should be moderately reducing the rates of public security mediation and criminal reconciliation, rather than resorting to the criminalization of minor acts of violence. Lastly, the criminalization of minor acts of violence lacks feasibility. On the one hand, the costs associated with implementing such criminalization far exceed the maximum limits that Chinese society can bear. On the other hand, criminalizing minor acts of violence produces very limited benefits and, at times, may even have adverse effects. The prevalence of the theory advocating the criminalization of minor acts of violence in the Chinese criminal law circle reflects a potential methodological pitfall in the research of legislative theory, which is primarily manifested in the failure to effectively address four sets of relationships: the relationship between macro and micro perspectives, the relationship between domestic and foreign considerations, the relationship between qualitative and quantitative research, and the relationship between costs and benefits.
The Rules of Judicial Proof of Network-based Illegal Fundraising Crime
— An Analysis Based on the Theory of Evidence Portse
Liu Jingkun
[Abstract] Network-based illegal fundraising crimes often exhibit characteristics such as involving multiple parties, forming a chain of actions, and generating massive amounts of evidence, which pose unique challenges for judicial proof. Current judicial interpretations propose rules for comprehensive determination, sample verification, attribute inference, etc. However, the theoretical foundation for such rules is yet to be clarified and the judicial application of the rules entails numerous risks. Due to the complex chain of network-based illegal fundraising crimes, a distinctive evidence structure emerges, encompassing such evidence ports as the investment port of investors, the flow port of financial institutions, and the transaction port of fundraisers. Analyzing the evidentiary functions and interrelationships of these evidence ports helps to clarify the fundamental requirements for investigating and proving such crimes. Integrating and optimizing existing proof rules based on the theory of evidence ports aids in addressing the judicial proof challenges posed by these crimes. Given the lack of unified standards in the application of comprehensive determination rules and the risks of key evidence being absent, it becomes necessary to comprehensively collect evidence from the preferred transaction port of fundraisers, while corroborating and verifying such evidence through other evidence ports, including the investment port and flow port. For evidence within the scope of quantitative standards, each should be investigated and verified individually. On this basis, for quantities or amounts that exceed the standard, conclusions drawn from the selected evidence port can be verified through sample validation. Building on comprehensive determination rules, the premise for applying sample validation rules is that qualitative and quantitative conclusions have been drawn from the relevant evidence port. Subsequently, evidence from other ports is used to validate and verify these conclusions. In the process of sample validation, evidence for analysis is not limited to that from the investment port but can be comprehensively selected from both the investment port and the flow port. For rules for inferring the attributes of funds within an account, they are not a kind of reversion of burden of proof that is prescribed by law. When the prosecution provides initial evidence, prompting the court to infer the attributes of funds within the account, the accused and other parties are allowed/required to counter. There are strict conditions for the application of the rules. The prosecution needs to prove the illegal use of the account and infer the nature of funds received based on the account’s demonstrated purpose. The inferred attributes of funds within the account can be countered by the accused and other parties. If the prosecution fails to counter the defense claims of the accused, thus raising doubts about the case’s facts, the court will rule in favor of the accused.
REVIEW OF FOREIGN LAWS
In Defense of the Will Theory of Rights
Zhang Tu
[Abstract] The debate about whether the idea of rights protects will or interest has lasted over a century. The will theory argues that rights essentially protect right-bearers’ personal autonomy and freedom of choice, while the interest theory claims that rights are boiled down to safeguarding right-bearers’ well-being and interests. The will theory is often criticized by the interest theory on two grounds. On the one hand, the will theory falls short of explaining why children and persons in a comatose state cannot be right-bearers. On the other hand, it cannot explicate the idea of inalienable rights, such as the right to life, the right to liberty, the right not to be enslaved or tortured, and so on. These two criticisms appear to be scattered, yet they pose foundational challenges to the will theory because they touch upon two core features of rights in the will theory, namely enforceability and waivablity. Since only enforceable rights can be regarded as genuine rights, children and persons in a comatose state who are unable to enforce their rights cannot be considered as right-bearers. Similarly, since rights are waivable, the will theory cannot consistently make sense of the concept of inalienable rights. Nevertheless, both criticisms are based on a misplaced presumption of the normative foundation of the will theory, namely personal autonomy. The fact that rights protect personal autonomy does not mean that it merely protects individuals’ actual choice or actual pursuit of their conception of the good. Personal autonomy is not simply a descriptive concept, but rather a normative idea as it is intertwined with moral autonomy which involves substantive values of self-governance and self-reflection. It is responsive to either the reasoning of moral agents or objective practical reasons. Therefore, personal autonomy is rather inclusive insofar as it allows individuals to keep their distance from their first-order motivations or even disown those motivations. However, I will not discriminate between personal autonomy responsive to reasoning and personal autonomy responsive to reasons, as either of them would suffice to support the will theory against those two criticisms. Once we begin to see the more complex view of personal autonomy, we will understand that the two core features of rights in the will theory are largely unshaken. Although children and persons in a comatose state cannot actually enforce their rights immediately, with the device of the double structure of ideal theory and non-ideal theory, the right theory can provide guidance for what needs to be protected under non-ideal circumstances. And, granted that rights are fundamentally waivable, the will theory does not have to subscribe to the idea that all rights can be waived, as at least the right not to be enslaved cannot be waived by human beings as moral agents. Otherwise, it would logically violate a pervasive feature of our humanity.
INTERNATIONAL LAW ISSUES
The Justification Principle for Nuclear Radiation Protection in International Law: Connotation, Legal Nature, and Regulatory Practices
Zhang Shi’ao
[Abstract] Since the 1970s, the international community, led by the International Commission on Radiological Protection (ICRP), has gradually developed three basic ethical principles on radioactive protection, namely “justification” “optimization” and “dose limitation”, regarding nuclear activities such as the introduction of radiation sources or intervention levels. Relevant safety standards, giving these principles a soft-law nature and transforming them into potential national obligations in nuclear regulatory processes. The “justification principle” means that governments and regulatory bodies should follow the “risk - benefit” logic of analysis in decision-making on nuclear activities, taking into account non-technical factors such as economic, political and cultural considerations. A decision can be considered justified only if expected benefits “outweigh” expected risks. Currently, the international community is still exploring and accumulating experience regarding the detailed implementation of the “justification principle” based on the “risk - benefit” approach. As a soft-law principle, the “justification principle” does not have a binding force on state practices. However, with the support of specific obligations in international nuclear law and general international law, the “justification principle” becomes a consideration or compliance requirement in some specific treaties when state parties implement their treaty obligations. The Convention on Nuclear Safety requires states to adhere to basic safety principles, including the “justification principle”, while the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management requires states to have “due regard” to the “justification principle”. This principle is also touched upon by a number of other treaties in international environmental law. As a typical example, Part XII of the United Nations Convention on the Law of the Sea provides for different forms of pollution sources, leaving room for contracting parties to practice the “justification principle” when dealing with radioactive pollution. Currently, the majority of nuclear-possessing states have indicated their adherence to and practice of the principle. Among 8 out of the 13 countries with outstanding technics and operation experiences. The other 5 countries, although have not specifically incorporated this principle into their domestic laws, have expressed their willingness to comply with it. This suggests that the “justification principle” may become a principle of customary international law in the future. China should consider at least two issues in responding to this trend of development: first, how to improve its own relevant laws, regulations, and regulatory systems; and second, how to construct a “risk - benefit” evaluation mechanism compatible with its own national contexts and societal culture.
Intellectual Property Protection Disputes under International Investment Agreements: Challenges to Fair and Equitable Treatment and Their Solutions
Zhu Yue
[Abstract] With the emergence of the trend towards the return of states, the international investment law regime is undergoing systemic adjustments and reordering. Host states become more active in strengthening their claims and defending their right to regulate in fields of public interest, imposing increasing restrictions on intellectual property (IP)-based investments. Three disputes over the protection of intellectual property rights (IPRs) under international investment agreements (IIAs), namely Philip Morris v. Uruguay, Philip Morris Asia v. Australia and Eli Lilly v.Canada, indicate that IIAs and investor-state dispute settlement (ISDS) mechanism constitute an appropriate forum for litigating IP disputes at the international level. Since the clause of fair and equitable treatment (FET) is vague and controversial and has the potential to reach further into the traditional domaine réservé of the host state or to implement IP treaties outside the multilateral trading regime, it is often invoked by IP owners against the public policies of a host state, leading to an imbalance between the protection of interests of investors and the regulatory right of the host state and resulting in a departure from the original legislative intent of FET. The application of FET in IP disputes has its distinct features, particularly the extra-territorial application of laws in different fields. In view of this situation, the arbitral tribunal should consider the exclusivity, publicity, and territoriality of IPRs, scrutinize and determine the appropriateness of the host state’s act, and solve the dilemma of concurrent protection of IIAs and IP treaties. Unfortunately, the arbitral tribunal has failed to properly respond to the foregoing focal points when applying FET in IP disputes, thus either allowing FET to be abused as a tool to compress the public policy space of the host state or making it difficult to ensure that the host state exercises the right to regulate in a proper manner. In this regard, this paper provides the following advice regarding the overall system design. With respect to revising the treaty clauses, it is necessary to clarify the meaning of the elements of FET while reserving the right to interpret FET for contracting parties and to define the conditions for the exercise of the host state’s right to regulate. With respect to optimizing ISDS practice, it is essential to give full play to the advantages of amicus curiae from the conflict-law perspective and reasonably allocate the burden of proof among disputing parties. In this way, we could make better use of the elasticity of FET to take into consideration both the protection of IP-based investments and the host state’s right to regulate, guide the arbitral tribunal to rationalize the application of FET in cross-regime matters, and ultimately achieve a rebalancing between the interests of investors and public interest of the host state.
