Chinese Journal of Law(3-2020)

Government-court Interaction in Administrative Litigation


Zhang Zhiyuan


Abstract: In the recent 15 years, the development of government-court interaction in the practice of administrative law in China has updated the traditional understanding of the relationship between judicial power and executive power, promoted the functions of the administrative trial system in resolving disputes and supporting and supervising administration. But at the same time, the problem of lack of operational norms also existed. Case-based government-court interaction under the guidance of the concept of trial-oriented and substantive resolution of administrative disputes aims to achieve the judicial goal of dispute resolution. Rule of law-enhancing government-court interaction promoted by the concept of legitimacy bottom line theory and administrative process theory aims to achieve the judicial goal of policy implementation. The continuous growth of this function in the new era not only reflects the response of the courts to changes in social governance policies and the efforts to optimize the judicial environment, but also stems from the need to moderately expand the judicial functions under the guidance of administrative tasks. In order to give full play to the positive function of government-court interaction, China needs to complete the construction of the rule of law in terms of the application of jurisprudential hermeneutic, the openness of process and the effectiveness of relief, so as to better transform the advantages of the administrative trial system with Chinese characteristics into the effectiveness of state governance.

Keywords: government-court interaction; optimization of the judicial environment; substantive resolution of administrative disputes; administrative trial system with Chinese characteristics



The Dominance-subordination Relationship Between General Provisions and Specific Provisions of the Chinese Civil Code


Sun Xianzhong


Abstract: The upcoming Chinese Civil Code contains over 1,200 articles and adopts a legislative mode that distinguishes general and specific provisions. This legislative mode is the result of systematization and scientization of legislation and has the advantages of saving legislative costs and being easy to study and implement. From the perspective of the historical development of civil law, this mode of civil law codification is necessary and scientific. Under this mode, the general provisions of the Civil Code embody in a concentrated way the legislature’s guiding ideology, provide for the general principles and general rules of the civil law, fully implement the basic scientific principles of the civil law, and exercise control over all the specific provisions. Solving the problem of system logic between enormous groups of norms and institutions in the civil code, pointing out the division of work-cooperation and domination-subordination logic relationships between general provisions and specific provisions, and putting forward the principle of taking the general provisions as the ideological basis, the basis of the validity of the rules, and the basis of the scientificity of the jurisprudential understanding of the entire civil code are the keys to understanding the Chinese civil code system and conducive to rectifying the jurisprudential tendency of neglecting, even being divorced from the rules of the general provisions in the compilation of some parts and chapters of specific provisions against the special background of implementing the “two-step” plan of codification of the civil code in China.

Keywords: the civil code; general provisions; specific provisions; civil subjects; rights in civil law; juristic act



Types and the Handling of Official Seal Defenses


Chen Su


Abstract: The significance of official seal is to connect a specific declaration of will to a specific subject. It is an important method of identification of written juristic act. In cases of unauthorized use of a genuine official seal or the fraudulent use of a fake official seal in economic activities, the nominal person of an official seal may raise a defense against the authenticity or the effect of the use of an official seal. In practice, however, there are often misunderstandings of the effect of an official seal and one of the important reasons for these misunderstandings is the lack of a set of systematic and effective rules on the handling of public seal defenses. Public seal defenses include defenses against the confirmation of official seal and defenses against the effect of official seal. The latter can be further divided into defense against the effect of genuine official seal and defense against the effect of fake official seal. Different types of official seal defense have different rules and key points of handling in terms of defense ground and burden of proof. In the handling and determination of official seal defenses in practice, a judge should effectively grasp the basic rules and special circumstances of different types of official seal defense, and appropriately identify and employ the mutual confirmation relationship between the effect of official seal and apparent agency or apparent representation.

Keywords: official seal; official seal defense; appearance of rights; apparent agency; apparent representation



The Company Law Approach to Explaining the Voidness of Resolution Made by Shareholders’ Meeting


Ye Lin


Abstract: The voidness of resolutions made by shareholders’ meeting is a special phenomenon in company law, on which detailed rules need to be made through legislation. However, the current rules in both the Company Law (2018 Amendment) and the Judicial Interpretations IV of Company Law are quite simple, causing many theoretical and practical divergences on the test for determining void resolutions made by the shareholders’ meeting. The mode of regulating the validity of resolutions made by the shareholders’ meeting has shifted from the common law mode to the civil law mode. The former is represented by Article 111 of the 1993 Company Law, which focuses on controlling the implementation of resolutions, whereas the latter is represented by Article 22 of the 2018 Company Law, which focuses on controlling the formation of resolutions. The interpretation of the rules on the voidness of resolution made by the shareholders’ meeting should not follow the paths of conceptualist jurisprudence analysis, juridical act analysis, or tort law analysis, but should return to the path of company law analysis. Specifically, such analysis should consider the stability of company relationships, the dynamic nature of the formation of the resolution, and the timeliness of the control of validity, so as to achieve the double objectives of maintaining the stability of company relationships and eliminating the illegality of resolution. When determining the illegality and voidness of a resolution, the starting point should be the essence of the voidness of resolution, while emphasis should be laid on the interaction between rules on void resolutions and rules on voidable resolutions. Therefore, the general statutory grounds of the voidness of resolution should be: (i) violation of the essence of company, (ii) violation of company democratic participation rules, and (iii) violation of mandatory rules or the public order and good morals.


Keywords:voidness of resolution; shareholders’ meeting; corporate stability; corporate democracy; judging criterion



Paradigm Shift and Institutional Reconstruction of the Legislation on Defective Corporate Resolutions


Ding Yong


Abstract: The current Chinese law applies the civil law paradigm of juridical acts to resolutions, invalidates all defective resolutions from the beginning to ensure the plaintiff ’s remedies, and maintains corporate stability by reliance protection. In the end, however, this approach will lead to the separation and conflicts between the plaintiff's remedies and corporate stability and efficiency. The root cause of this problem lies in the lack of justification, pertinence and feasibility of the plaintiff ’s remedies provided by the invalidity of the defective resolution from the beginning. In accordance with the requirements of the principle of proportionality, the arrangements for legal consequences should be distinguished by the severity of the defects. Only through the reconstruction of the validity of defective resolutions, the balance between the individual plaintiff and the company's overall interest can be reached. Under this new paradigm of the organizational law, only resolutions with extremely serious defects can be denied of their validity from the beginning, and thereby forbidding their implementation or granting restitution after the implementation. Otherwise, resolutions shall incur more soft legal consequences, such as being rendered invalid in the future and paying damages. By this way, corporations can obtain greater efficiency and stability in the implementation of resolutions. Based on the above analysis, the current trichotomous litigation classifications should be abolished and replaced with a uniform litigation of defective resolutions and litigation period. Resolutions on corporate organizational changes can be implemented and maintain their validity after the implementation only if there is no lawsuit filed within the litigation period or the court has ruled out serious deficiencies after any lawsuit is filed. As to other resolutions, plaintiffs may prevent the implementation of resolutions with extremely serious defects in accordance with the conduct preservation rules. After the implementation of resolutions, plaintiffs can only claim invalidity of the resolutions from the beginning and the restitution to the extent permitted by the corporations’ interests.

Keywords: defects in resolution; retroactivity; restitution; the principle of proportionality; corporate stability



The Ecology of Execution and Uneven Judgement Execution in Grassroots Courts


Yu Longgang


Abstract: Executive ecology refers to the environment and atmosphere in which the court executes judgements. It mainly includes the internal ecology composed of vertical and horizontal ecologies, and external ecology composed of political ecology, economic ecology and social ecology. Through the investigation of several grassroots courts, the author finds out that the current execution is under great pressure from outside the court, including the governance pressure of political ecology, the relief pressure of economic ecology, and the interaction pressure of social ecology, and these pressures have been exacerbated to a certain extent by the internal ecology of the court. The excessive pressure of executive ecology has given rise to the court's demand and preference for uneven executive strategy: on the one hand, such a strategy can avoid the pressure through the termination of enforcement procedure and enforcement compromise; on the other hand, it can relieve the pressure by periodically carrying out campaign-style execution. Uneven executive strategy may induce non-standard execution and undermine executive authority. In order to achieve the goal of "effectively solving the problem of enforcement difficulties", it is necessary to improve the executive ecology and weaken the court's demand for uneven executive strategy and the key to doing so is to establish the executive authority in social situation and realize the mutual promotion between positive executive ecology and active even execution.

Keywords: enforcement difficulty; executive ecology; executive authority;even execution



Legislation on Protected Natural Reserves as a Part of the Environmental Law System


Wu Kaijie


Abstract: The Law on Protected Natural Reserves, the Law on National Parks and other legislations on protected natural reserves, as emerging environmental laws, may contradict and overlap with other environmental laws and, therefore, it is necessary to clarify their value orientations and the corresponding normative expressions. Against the background of the enshrinement of the construction of ecological civilization into the Constitution and the basic environmental law, the “protection first” principle and the comprehensive treatment principle of the basic environmental law embody the value expectation of giving priority to the protection of ecological integrity, which needs to be expressed through the legislation on protected natural reserves. Compared to pollution prevention and control laws and resources protection laws, the legislation on protected natural reserves takes the protection of the ecological environment as its fundamental objective, is characterized by the systematicness of regulated targets and the adaptiveness of regulatory methods, and therefore is able to meet the need of giving priority to the protection of ecological integrity. To realize this value expectation, China should establish through the legislation on protected natural reserves an institutional system with area-based protection level system and integrated behavior control system as the core, and adopt a general-specific structure of “a basic law on protected natural reserves + special laws on different kinds of protected natural reserves”.

Keywords: legislation on protected natural reserves; environmental law system; the protection first principle; the comprehensive treatment principle; ecological integrity



Reflection on and Correction of the Approach of Taking Crime Title as Discussion Platform in Criminal Law Research


Ding Shengming


Abstract: There is a phenomenon of taking crime title as discussion platform in the research of criminal law in China, which has caused many confusing problems in quantity of crime, mistake, mens rea, etc. The titles of crimes in China are determined by judicial interpretations, which do not strictly follow the principle of “one crime constitution, one title”, but make extensive use of the method of “one sort of crime constitution, one title”. Therefore, crime title and crime constitution in China are not always in one-to-one correspondence, “multiple crimes, one title” is a prominent feature of China’s crime title system. Problems relating to the quantity of crime, mistake, and mens rea in criminal law research origin from the confusion about the relationship between crime constitution and crime title. We should strictly distinguish crime constitution from crime title, and abandon the approach of taking crime title as discussion platform in criminal law research. The object of criminal law research is crime. Therefore, the center of the discussion platform of criminal law is crime constitution, not crime title. Accordingly, the basic unit of analysis in criminal law is “a crime constitution” rather than “a crime title”. The “crime” in the “quantity of crime” refers to crime constitution rather than crime title. If an offense meets several crime constitutions under one title, we should make full use of the principle of prohibition against double evaluation and the requirement for overall evaluation to assess the quantity of crime. A concrete mistake refers to “a mistake within a crime constitution”, rather than “a mistake within a crime title”. The possible punishment loopholes could be dealt with flexibly through interpretation and legislation. The discussion of the form of mens rea should be based on crime constitution rather than crime title. If there are several crime constitutions under one title, the mens rea of each crime constitution should be discussed separately.

Keywords: crime title; crime constitution; quantity of crime; mistake



The Role Evolution from Expert Assistant to Expert Witness in Criminal Cases in China


ZhangBaosheng and Dong Shuai


Abstract: In the context of Chinese criminal procedure, the role of an expert assistant is multiple-facet, somewhat similar to that of a lawyer’s role, and somewhat similar that of a forensic examiner or a witness. Views on the nature of an expert assistant’s opinions also range from “a cross-examination method”, “forensic expertise” to “witness testimony”. This confusion regarding the role of an expert assistant has not only resulted in the unique "dual-track system" of forensic examination and expert assistant, but also often led to difficulties in deciding the reliability of an expert assistant opinions in trial. Recent regulations on expert assistant issued by the Supreme People’s Court have shown a trend of evolution of the role of expert assistant towards that of expert witness. This article attempts to analyze the reasons, the significance, and the prospect of this evolution, as well as the future problems that might be brought about by this evolution. The core requirements of this evolution include, first, achieving the equal litigation status of forensic examiner and expert assistant and the equal testimonial status of their opinions in the sense of expert testimony; second, giving the duty of cross-examination, which has been unreasonably imposed on expert assistants, back to lawyers and prosecutors; and third, improving the ability of lawyers and prosecutors to cross-examine scientific-evidences and giving full play to the judge’s role as the “gatekeeping” of scientific evidence, so as to help lawyers and prosecutors to adapt themselves to the needs of "scientization of fact-finding".

Keywords: forensic examiner; expert assistant; expert witness; evolution of role; admissibility rules of scientific evidence



On the Rules of Temporal Effect of Criminal Procedure Law




Abstract:The Chinese Criminal Procedure Law and related regulations have not clarified the rules on the temporal effect of the application of the law, resulting in difficulties in the transition of criminal procedures from these under the old law to those under the new law. With respect to this issue, the academic circle believes that the principle of applying new procedure law should be applied, but related understandings and definitions are problematic. In terms of normativism, it can be deduced from the principle of immediate application of laws and the principle of non-retroactivity of laws that the law in force at the time when the act is committed should be applied in criminal procedures. For unfinished lawsuits, because the procedures under the new law may not be compatible with the old procedural facts, the application of the law in force at the time when the act is committed will inevitably affect these incompatible old facts. Some scholars believe that this situation belongs to the retroactivity of the new law. In fact, it is only non-authentic retroactivity, and does not violate the principle of non-retroactivity of laws. However, the non-authentic retroactivity of criminal procedure law may still substantially damage the legal certainty and legitimate expectation, which is exactly the values to be protected by the principle of non-retroactivity of laws. As far as legislation is concerned, in addition to stipulating the principle of applying the law in force at the time when the act is committed, legislators should follow the thinking path constructed by the theory of legitimate expectation to identify the reliance interests that need to be paid attention to in advance, and then choose an appropriate legislative plan to incorporate such exception into the legal system of criminal procedure. With regard to the choice of legislative plan, a legislative decision can be first adopted by the Standing Committee of the National People's Congress in the near future, then the decision could be formally incorporate into the Criminal Procedure Law when the law is revised next time.

Keywords: the immediate application of laws; the non-retroactivity of laws; trust protection



Application of Punishments for Absconding Crimes and Related Procedures in the Qin and Early Han Dynasties


Zhang Chuanxi


Abstract: The legal provisions on crimes relating to absconding during Qin and early Han dynasties were complicated and systematic. With respect to the application of criminal punishment, the punishment for simple absconding crimes was different for absconders of different statuses. The punishment for absconding after committing a crime comprised of both punishment for the principal crime and the punishment for absconding. With respect to procedures, simple absconding crimes committed by officials or ordinary persons were generally not followed by a trial and a manhunting procedure; absconding crimes committed by convicts or persons with special status were followed by two different trial and manhunting procedures in light of the severity of the crimes, namely “sentencing and certifying it (论,命之)” or “sentencing and ordering criminals to surrender themselves and accept punishments (论,令出、会之)”. As to absconding after committing crimes, either one of the aforesaid two procedures could be applied in light of the punishment for the principal crime. In the procedure of “sentencing and ordering the criminals to surrender themselves and accept punishments”, if criminals failed to come forward to accept the punishments, their punishments should be determined by assuming that they absconded after receiving the original punishments. Surrendering at different stages of judicial procedure in different kinds of absconding cases could lead to different reduction of punishment, including caning, reducing the punishment of the crime by one degree, and reducing by one degree the final punishment comprising of both the punishment for the principal crime and the punishment for absconding.

Key Words: Qin and early Han dynasties; absconding; to surrender oneself; to certify; to accept the punishment