Chinese Journal of Law(1-2021)



Institutional Logic and Standardization of the Joint Issuance of Documentsby the Party and the Government


FENG Lixia


Abstract: Joint issuance of documents by the Party and the government is one of the policy tools to realize the connection and integration between Party politics and government administration. In the process of state governance in contemporary China, the documents jointly issued by the Party and the government have such internal relations with state legislation as supplementation to governance functions, parallel scope of authority, and mutual transformation of normative content. The joint issuance of documents by the Party and the government is an institutional form to realize the Party’s leadership over state power and the integration of the Party and government powers, as well as an important way for the Party to exercise its leadership over legislation. To a certain extent, it makes up for the deficiency of government capacity and the institutional shortboards of the national governance system, reduces the cost of formulation of normative documents, and improves the supply efficiency and execution force of the system. At present, it is necessary to carry out theoretical demonstration and institutional arrangement for issues relating to the joint issuance of documents by the Party and the government, such as the scope of competence, identity positioning and recordation and review, within the framework of the system of socialist rule of law with Chinese characteristics, so as to avoid the generalization and abuse of joint issuance of documents by the Party and the government and achieve the coordination and balance between political characteristic of the Party’s leadership and the normative characteristic of state law.

Keywords: joint issuance of documents by the Party and the government, intra-Party's regulations, the Party’s leadership over legislation, socialist rule of law with Chinese characteristics, state governance system


“Digital Human Rights” Do Not Constitute the Fourth Generation of Human Rights


LIU Zhiqiang


Abstract: From the perspective of the principle of intergenerational division, “digital human rights” are an increase in the number of human rights, which can be reasonably explained within the framework of the existing human rights system. They do not break through the existing three-generation pattern of human rights or constitute the intergenerational innovation of human rights. From the perspective of the moral attribute of human rights, “digital human rights” do not have the moral basis of human rights, are incapable of achieving the justification of moral human rights through “digital human nature”, and thus cannot become fundamental human rights. From the perspective of fundamental rights, “digital human rights” neither have the normative basis of the constitution, nor meet “human dignity” standard or “minimum standard” and, as a result, cannot be justified as fundamental rights not listed in the constitution. Therefore, “digital human rights” are not a new type of human rights that can be upgraded to the fourth generation of human rights and, indeed, do not even constitute human rights.

Keywords: digital human rights, fourth generation human rights, moral rights, fundamental rights


A Structured Interpretation of the Risk Precaution Principle




Abstract: Many versions of the precautionary principle have been developed in theory and practice on a global scale. Differences and disputes among the proponents of different versions have given increasing prominence to the basic elements that constitute the principle gradually clarified the relationship among the elements. The internal elements of the precautionary principle include anticipation of harm, uncertainties, precautionary measures and reverse proof mechanism. The four elements and their inter-relationships determine the internal structure of the precautionary principle. With the structured interpretation of the precautionary principle, different versions of this principle may be integrated into a “structured precautionary principle” to form some kind of normative guidance that can build jurisprudential consensus and facilitate the accumulation of practical experience. The structured precautionary principle contains four sub-principles, namely the positive authorization principle, the overall proportionality principle, the minimax principle and the reverse proof principle, which should be taken as common components in the legislation and administrative rulemaking in the realm of risk governance. China needs to examine and refine its legal practice of risk precaution in light of these four sub-principles, so as to give further play to the role of the precautionary principle. To be more specific, it should improve the mechanism for the legal authorization of precautionary measures under uncertainties, introduce requirements of hierarchical or probabilistic proportionality, and establish general mechanisms for reverse proof and dynamic adjustment of precautionary measures.

Keywords: risk society, risk governance, the precautionary principle, precautionary measures, reverse proof mechanism


Reform on the “Back-end” of Company Capital System and the Solvency Test for Referenc


ZHU Ciyun, et al.


Abstract: In recent years, the changes in Chinese company capital regime have been concentrating on the “front-end”, which aims at relaxing capital controls and encouraging investment. But the “back-end” of corporate capital system, namely the flow of assets from companies to shareholders, remains under the control of the traditional capital maintenance principle. The 1980 US Model Business Corporation Act (MBCA) unifies the flow of assets from companies to shareholders with “distribution” and creates the solvency test, which includes equitable solvency test, balance-sheet solvency test and capital-adequacy solvency test. Solvency test overturns the capital maintenance principle’s treatment of the relationship among company’s capital, assets and liabilities by focusing on ensuring the priority distribution of creditors, basing itself on the fiduciary duty of directors, and getting rid of excessive dependence on financial and accounting indicators. This change reflects the development trend of liberalization of corporate behavior, abstraction of capital rules and facilitation of corporate financing, which is in line with the development trend of accounting specialization. China should learn from the US solvency test and establish a relatively flexible capital system, so as to improve the function of the capital system, the quality of corporate governance and the actual effect of corporate creditor protection.

Keywords: solvency test, capital maintenance principle, capital system, distribution rules, creditor protection


Normative Structure of Consensual Rescission of Contract


YAO Mingbin


Abstract:Article 562 Paragraph 1 of the Chinese Civil Code clearly stipulates that parties to a contract may rescind the contract based on agreement (consensual rescission). In terms of institutional positioning and operational details of consensual rescission of contract, however, there are unresolved disputes in academic theory, ambiguity in judicial practice and complicated interaction in normative system. Therefore it is necessary to organize the normative content of consensual rescission with the help of dogmatics of law. Consensual rescission is a parallel agreement with internal cause and disposition character, and its core effect is the rescission of the content of the “debt in a broad sense” relating to the original obligation in contract. With respect to its ancillary effects, consensual rescission creates liquidation obligation when it involves liquidation, and the statutory rules on the effects of contract rescission can be applied when there is no special agreement on its content. In principle, an established liability for breach of contract is not affected by consensual rescission. The effect of consensual rescission should be limited if the interests of a third party could be harmed by it. Consensual rescission can be realized by reaching a “typical agreement” or by reaching an “atypical agreement” through the re-interpretation of legal transaction. It is appropriate in terms of legal technology and legal policy to integrate consensual rescission as a part of the system of contract rescission in Chinese Law.

Keywords: consensual rescission, debt in a broad sense, disposition, restitution, re-interpretation of legal transaction


Procedural Violation Cause for the Revocation of Original Judgment


ZhAN Shan’gang


Abstract: In civil litigation, procedural violation is one of the reasons for a party’s refusal to accept the judgment. The revocation of the original judgement by the appeal court should be based on the causal relationship between the procedural violation and the judgment, which is both the inherent requirement of the principle that the judgment reason has no res judicata and the inevitable response to the appeal for the purpose of correcting the wrong judgment. The current Civil Procedure Law, by taking “serious violation of statutory procedure” as the illegal procedural cause of revocation of the original judgment, not only fails to respond to the parties’ dissatisfaction, but also obliterates the functional boundary between revocation of the original judgment and remand for retrial, thereby eroding the appeal interests of the parties. The procedure violation cause for the revocation of original judgment should return to its original legislative design, namely “in the original judgment a violation of the prescribed procedure may have affected the correctness of the judgment”. The standard of “possibility” should be adopted to determine the causal relationship between procedural illegality and the judgment. The “serious violation of statutory procedure” stipulated in the interpretation of Civil Procedure Law can be irrefutable presumption of the causal relationship between procedural illegality and judgment.

Keywords: procedural violation, revocation of original judgment, causation, serious violation of statutory procedure


Comprehensive Mode of Criminal Proof and Its Transcendence overthe Corroboration Mode




Abstract: Currently the researches on the corroboration mode of proof in China mostly focus on the level of empirical phenomenon, while ignoring the ultimate questions of proof mode, namely how to find the truth through evidences and what are the core elements of and functional mechanism for judicial proof. The corroboration mode of proof, as the representative of the traditional judicial proof theories and practices in China, neglects the analysis of judicial reasoning and the function of “narratives” and “generalizations”. It relies on core evidences and underestimates subsidiary evidences, focuses on the one-way linear inference and ignores the argument structure, thus leading to its limitation in finding the truth. According to the general principle of the judicial proof, the fundamental way to realize the fact-finding purpose of criminal procedure law is to establish a comprehensive proof mode that takes the natural historical fact as its object of proof, integrates core evidences and subsidiary evidences and allows for probabilistic inferences.

Keywords: corroboration mode of proof, comprehensive mode of proof, natural historical fact, subsidiary evidences


Land Transaction Norms and Private Law Ideas in Ziyang County Litigation Archives of the Qing Dynasty


WANG Shirong


Abstract:The litigation archives of “The Main Hall of Ziyang County” preserved by Shaanxi Provincial Archives are records of land dispute cases brought by the parties to the government in the Qing Dynasty. The land transaction norms presented in these archives include: “the landlord determines the transaction”, the transaction should be “clearly priced” and “no dispute over purchase afterwards”. These norms standardized trading activities and corroborated with laws, customs and judicial precedents at the levels of the initiation, the procedure and the result of transaction. Through the petitions of both parties, the government’s judgments and its statement in the judgments, land transaction norms had been continuously strengthened and followed by parties, governments and villagers. Transaction norms regulated not only trading activities, but also litigation procedures and adjudicative results and, as such, were generally recognized by members of society. The private law ideas embodied in these land transaction norms include: respecting the will of the selling party, guaranteeing the freedom of transaction, facilitating the transfer of property, reducing transaction costs, preventing and reducing disputes, maintaining the stability of transactions, promoting the keeping of promises and optimizing the trading environment. Land transaction norms also embodied the balancing the interests of both parties, indicating that the Chinese private law culture is endogenous to its sources, and China should attach great importance to its creative transformation and innovative development.

Keywords: Ziyang County Litigation Archives, land transaction norms, private law ideas


Negotiation of the HCCH Judgment Convention and the International Judicial Cooperation on the Protection of Intellectual Property


HE Qisheng


Abstract: In the intellectual property negotiation of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (HCCH Judgment Convention), the European Union (EU), the United States (US) and China have taken the positions of cooperation, non-cooperation and restrictive cooperation, respectively, representing different modes of interest game at the multilateral level. The Convention finally excludes its application on intellectual property rights and the US mode of non-cooperation is ultimately adopted. At the same time, through unilateral pressure and the Economic and Trade Agreement between the United States of America and the People’s Republic of China, the protection standards of intellectual property rights in China have been improved, and the US has realized comparative advantages over China at the level of intellectual property system and intellectual property development, which is conducive to the US economic benefits. Similarly, the reason why the EU is willing to carry out international cooperation is also for improving the intellectual property system throughout the world, so as to gain global comparative advantages similar to that of the US. In the future, under the circumstance that the intellectual property system has been improved and the prospect of intellectual property development is promising, China should adopt the international cooperation mode at the multilateral level, so as to provide international public products and safeguard its own intellectual property interests.

Keywords: intellectual property, the HCCH Judgment Convention, international judicial cooperation, Economic and Trade Agreement between the United States of America and the People’s Republic of China


Regulation of Affiliated Transactions: World Bank’s Paradigm and Reconstruction of the Chinese Paradigm


WANG Qingsong


Abstract: The indicator of “protecting minority investors” in the World Bank Doing Business Report is based on the textual regulation of affiliated transactions of listed corporations in every economy entity. Its case hypothesis contains such presuppositions as independence of corporate form, harmfulness of affiliated transactions, stricter regulation of the better law and dominance of private law enforcement. The indicator constitutes a “World Bank paradigm of the regulation of affiliated transaction” with its own value tendency. However, its simple case hypothesis is far from being able to reflect the objective market situation, its understanding on the structure and function of affiliated transactions is biased, its regulatory method ignores the overall coordination among different legal means, and its evaluation results can not reflect the legal operational practice and regulatory effect. Drawing lessons from the World Bank paradigm, which is based on the independent corporation perspective, we can find the same limitation of perspective and institutional deficiencies in the current Chinese legislation. In response to the development of market situation and practical needs, China should transform its affiliated transaction regulation paradigm from the current behavior regulation paradigm, which is based on the independent company perspective, to the structural and behavioral regulation paradigm, which is based on the corporate group perspective. In the reconstruction of the paradigm, China should take the coordination between behavior law and organization law as the basis, focus on the regulatory function of the balancing of interests, promote multiple legal mechanisms simultaneously, and pay equivalent attention on public and private law enforcement.

Keywords: business environment, protecting investors, affiliated transactions, corporate group, public law enforcement


Criminal Compliance Approach for Building a Law-based BusinessEnvironment


LI Bencan


Abstract:A law-based business environment and organization compliance have the same value pursuit, that is, the compliance of their performance. Since compliance programs have the advantages of efficiency, saving public resources, and internationalization,thus could become legal tools for creating a sound business environment. Public institutions and companies are the primary participants in the business environment. As the main builders of business environment, public institutions must exercise administrative power and provide public services strictly in accordance with law, and companies must also operate their business in accordance with law. In this way, building a law-based business environment would become an act of following the natural course. The purpose of legal operation of public institutions could be better achieved with public power compliance programs. Public institutions not only rely on compliance programs to achieve their own compliance, but also promote corporate compliance through an external incentive mechanism. The role of self-regulating industry organizations, as a communication bridge between public institutions and corporations, has also been underlined. In business practice, they have indeed promoted corporate compliance by carrying out industry supervision, co-constructing information systems of untrustworthy organizations, facilitating joint investigation, and so on. China should further promote the participation in compliance by public institutions, companies, and self-regulating industry organizations and maximize their role in building a law-based business environment through such measures as building a “top-down” responsibility chain and a “down-top” information flow within the organizations, strengthening external incentives, and toning down the administrative color of self-regulating industry organizations.

Keywords: building business environment, public power compliance programs, corporate compliance


Dilemma of Interpretation of International Tax Treaties and Its Alleviation


CUI Xiaojing


Abstract: Several tax treaty interpretation methods have been developed in the field of international taxation over a long period of time, which mainly includes the treaty interpretation rules stipulated in the Vienna Convention on the Law of Treaties, the OECD Model Commentary, interpretations according to national laws of the contracting states, and the unilateral technical interpretations formulated by some countries. Moreover, in order to achieve the consistency in the interpretation of tax treaties by contracting states, the common interpretation method has been developed in international taxation theory and practice. However, the current interpretation framework of international tax law could not provide a satisfactory interpretation scheme for tax treaties. Due to the differences in tax policies or interpretation methods between China and its treaty partners, the conflicts of interpretation may lead to tax disputes in the interpretation and application of tax treaties, thus expose taxpayers to the risk of double taxation. In order to create a sound law-based business environment for taxpayers and improve the clarity and predictability of international tax law, Chinese Government should clarify the provisions of tax treaties, pay close attention to the positions and attitudes of various countries towards the OECD Model Commentary, formulate technical explanations of tax treaties between China and other countries, properly refer to the judgments of foreign courts, and recognize the qualification results of the source countries and other complementary methods.

Keywords: tax treaty, qualification, common interpretation, qualification of source country