Chinese Journal of Law(2-2021)

Source: | 2021-03-26  




The Theory of Law-based Power Supervision in Xi Jinping's Thought on the Rule of Law


Jiang Bixin and Zhang Yu


Abstract: Xi Jinping's Theory of Law-based Power Supervision is an important part of Xi Jinping's Thought on the Rule of Law, and its core is to restrict and supervise power by law-based means. This theory not only thoroughly explains the internal mechanism for power restriction and supervision, but also discusses in a deep-going way the organization and implementation of the law-based supervision system. Taking the protection of people's interests as its basic purpose and starting point, it attaches great importance to the people's status as the main body of supervision. Global and forward-looking in perspective, comprehensive in the scope of supervision, and innovative in supervision mode, it has not only inherited and developed the Marxist and Leninist classic theory of power supervision, but also provides a new sample and model for law-based power restriction and supervision and therefore is of great practical significance and distinct epochal values.

Keywords: power supervision, power restriction, Xi Jinping’s Thought on the Rule of Law, law-based supervision system


Reflections on the Rise of Systematic Theory of Constitutional Law in China


Chen Yunsheng


Abstract: The systematic theory of constitutional law takes the differentiation of social functions as the logical premise, leans towards empiricism in research standpoint, and implements the basic model of "deduction from existence" in methodology. This theory takes various experiences of social life as the normative basis of constitutional practice and attempts to provide appropriate interpretation and explanation of constitutional practice by objectively describing the systematic phenomenon and all the elements that form the systematic phenomenon. However, the concept of a system based on the functional differentiation of the whole society cannot separate specific constitutional practice from general constitutional norms. Moreover, since the description of constitutional practice often requires the use of value judgment, and there is no logical derivation between what is in existence and what should be done, the academic proposition of systematic constitutional law, although has certain practical explanatory power, still needs reflections at the deep theoretical level.

Keywords: The systematic theory of constitutional law, social systems theory, normative constitutional law, differentiation of functions


Implied Extension of Personal Security Interest


Zhuang Jiayuan


Abstract:Since personal securityperforms a function of “dynamic circulation” in security practice, it is necessary for security interests to extend to the substitution of collateral. However, the doctrine of in remsubrogation makes such extension difficult when the debtor loses collateral or when the economic value of collateral decreases due to sale, accessions, rental, etc. Article 9 of the UCC adopts the rule of automatic attachment of security interests to maintain the security interest through physical changes of collaterals. This rule is based on an implied agreement centered on the economic value of the collateral, assuming that the parties will also create personal security in the proceeds. Automatic attachment is limited neither to existing collaterals, nor to exchange value in a narrow sense, but even extends to various converted forms of collateral value. Under the current Chinese law, consensual personal security agreement has provided the institutional basis for the implied interpretation, such as the existing vertical expansion of collateral in China. The expanded interpretation of the word "etc." in Article 390 of the Chinese Civil Code is consistent with the assumption of parties' security agreement. Furthermore, registration system of personal security should undertake the task of perfection of proceeds,so as to avoid negative effects of automatic attachment of proceeds to the third parties.

Keywords: floating charges, extension of person security interest, implied security agreement, registration of proceeds


On the Systematization of Communication Right in the Copyright Law


Wang Qian


Abstract:The lack of systematization of various exclusive rights under the broad communication right leads to problems both in legislation and judicial practice. The dichotomy between the interactive and non-interactive communications can only apply to some but not all communication rights. The communication right should be divided into two categories: on-site communication right and distance communication right. The former covers the communication to the public present at the place where the communication originates and includes the right of performance, the right of projection, the right of exhibition, and the right of public communication of received broadcast, which is a sub-right under the right of broadcasting. The latter covers the communication to the public not present at the place where the communication originates and includes the right of making available and two sub-rights under the right of broadcasting – the right to initial broadcasting and the right of retransmission of the broadcast. “The place where the communication originates” is not an absolute concept of physical site. If the communication involves the use of technical process to transmit a work from one place to another, it is the communication to the public not present at the place where the communication originates. The systematization of the communication right is conducive to the establishment of a scientific system of the right of communication in the copyright law and to the solution of some difficult problems in judicial practice. The provisions that redefine the right of broadcasting and establish the new right of remuneration for sound recording producers in the newly revised Copyright Law are ill-worded and may cause confusion between various exclusive rights under the communication right. In addition, the new right of broadcasting is a mixture of distancing communication right and on-site communication right. These provisions should be revised in order to construct a scientific system of the communication right.

Keywords:communication right, the right of communication to the public, the right of public communication, performance right, broadcasting right


The Category, Normative Structure and Private Law Validity of Labor Standard Law


Shen Jianfeng


Abstract:Labor standard law is the sum total of mandatory legal norms that protect employees’ interests. According to different normative validity structures, labor standard law can be divided into three categories: private labor standard law, public labor standard law and dual-validity labor standard law. The question of how legislators design the validity structure of a specific labor standard rule depends on a variety of factors, including upholding of public interests, protection of employees’ interests, and legislation techniques. Whichever normative validity structure the labor standard law chooses will produce private law validity in the end. With respect to public labor standard norms, this will be manifested in reflexivity, dual-validity and the effect of illegal control of public law. The private law validity of labor standard law in labor relations is concretely embodied in such aspects as the access by subjects of labor relations, validity control of legal behavior and performance of payment obligation. With respect to the labor standard law with dual-validity of public law and private law, it is necessary to coordinate the relationship between the two validities. With respect to the determination of the connotations of norms, China should proceed from the understanding in labor law, take into consideration the value and system of public law itself, and allow the existence of different connotations of relevant norms in public law field and private law field; with respect to implementation mechanism, public remedy and private remedy should run parallel to each other, and possible conflicts between them should be resolved by the choice of parties.

Keywords:labor standard, mandatory law, private law validity, reflexivity, dual-validity


Rethinking and Establishment of the Primary Liability of Controlling Person in a Public Company


Zheng Yu


Abstract: Currently China is incorrectly relying on the fiduciary duty theory in the company law to pursue the liability of the controlling person in securities regulation. Over-emphasizing the role of the controlling person in a Listco will blur the liability boundary between the controlling person and the Listco in the corporation governance structure of Listco. China should, on the basis of clarifying the boundary of the fiduciary duty of the controlling person of Listco in the company law, change the logical basis of the controlling liability in the securities law, and establish a reasonable liability system with the real director’s liability as the main liability. If a controlling person harms the interest of Listco by his control of the company, he shall assumed the role as a de facto director and be liable for the violation of the director’s fiduciary duty in the derivative litigation brought by minority shareholders. Furthermore, if such control leads to the violation of the securities law, the controlling person should be considered as one of the statutory violators who will bear the same direct and primary liability as that of the Listco in the class action brought by minority shareholders, without the need for introducing the joint liability theory under the traditional tort law to judge the controlling person’s liability. Under such liability distinguishing structure, it is necessary to introduce the good-protection scheme under US federal securities regulation to safeguard minority shareholders’ right to choose the cause of action under either the company law or the securities law against the controlling person, so as to promote the correct understanding of the good corporation governance structure and realize the conversion of the logic of the securities liability of the controlling person.

Keywords:controlling person, legal personality, fiduciary duty, de facto director, derivative litigation


The Reform Aimed at Transforming Preliminary Investigation into Administrative Law Enforcement and Its Supporting Mechanisms


Zhang Zetao


Abstract:In practice, the preliminary investigation by public security organs has in effect replaced criminal investigation. A large number of administrative enforcement means have penetrated into initial investigation, leading to the substantiation of preliminary investigation and many other problems. China should abolish the case filing procedure or lower the standard for filing criminal cases, directly initiate criminal investigation on criminal suspects, and convert the investigation of administrative illegal acts into criminal investigation once initial investigation confirms that a crime has been constituted. From the perspective of the attribute of power, preliminary investigation is an act of administrative law enforcement. Improving the connection between administrative procedure law and criminal procedure law is one of the core requirements of law-based governance. The elaboration on criminal prosecution standards and the use of big data in public security law enforcement provide the data standard and technological supports for transforming preliminary investigation into administrative law enforcement. The legislation on the use of administrative evidence in criminal proceedings provides the institutional premise for the connection between preliminary evidence taking and criminal evidence, thereby not only resolving difficult problems in legislation and administrative regulations, but also confirming the experiences of public security and judicial organs in law enforcement and judicial interpretation. In the future, China should refine and systematize criminal prosecution standards of public security organs, revise Article 65 of the Provisions on the Procedures for Handling Administrative Cases by Public Security Organs, give full play to the role of big data as big engine in the handling cases, raise the standards of administrative enforcement by public security organs in accordance with the principle of proportionality, intensify supervision by procuratorates over administrative law enforcement activities of public security organs, strengthen mechanisms for the internal and external supervision over public security organs’ handling of cases involving the connection between administrative and criminal proceedings, and regulate the restraint mechanism for converting administrative evidence into criminal evidence.

Keywords: preliminary investigation, administrative illegality, connection between administrative and criminal law


The Hierarchy of Evidence Attributes


Zheng Fei


Abstract:The fundamental reason for the existence of four sets of discourse system of evidence attributes in China is that currently the Chinese academia has not yet realized the hierarchy of evidence attributes. The first manifestation of this hierarchy is that, based on the distinction between element theory and structure theory, elemental attributes such as relevance, authenticity and legitimacy are the basic elements of evidence evaluation, and structural attributes such as competency of evidence (or admissibility) and probative force are the embodiments of the structural process of fact-finding procedure. Among them, the three elemental attributes are parallel to each other with relevance taking the lead, and the two structural attributes form a relationship of progression based on the structural process of procedure. Meanwhile, the three elemental attributes affect the judgment of the two structural attributes to varying degrees. The second embodiment of the hierarchy is that, based on the distinction between epistemology and axiology, evidence attributes can be divided into natural attributes and legislative attributes. Among the elemental attributes, relevance and authenticity are the natural attributes promoting the internal objective of the accuracy of fact-finding, and legitimacy is the legislative attribute promoting external objectives other than the accuracy of fact-finding. Among the structural attributes, the competency of evidence is the legislative attribute of the legal problem, and the probative force is the natural attribute of the factual problem. The research paradigm in China should be changed from one that “focuses only on elements theory” or “pays attention only to the structure theory” to one that “pays equal attention to elements theory and structure theory”. In addition, Chinese academia should reshape the system of evidence rules through the improved western structural attributes or the improved “three Chinese style structural attributes” on the basis of a deep understanding of the proposition that “the system of evidence rules is the logical extension of the hierarchy of evidence attributes”.

Keywords:evidence attributes, elemental and structural attributes, natural and legislative attributes, the system of evidence rules


Game Playing Between the Monarch and Ministers around Leniency outside the Law in Qing Dynasty


Jiang Tiechu


Abstract: Leniency in Qing Dynasty took two forms: leniency outside the law and leniency according to law. Leniency outside the law in capital cases was a matter of uncertainty as well as a beneficial thing in the eyes of the monarch and his ministers. And both the monarch and ministers could take part in the trial of capital cases. As a result, it had become the object of game playing between the monarch and his ministers. In the Qing Dynasty, the monarch and ministers played two rounds of game around leniency outside the law: one initiated by ministers and the other initiated by the monarch. There were two ways for the minister to initiate leniency outside the law: requesting the monarch to grant the leniency in advance and giving the leniency first and asking the monarch to recognize it afterwards - with the latter mainly appearing in the late Qing Dynasty. When the monarch took the initiative to show mercy outside the law, he often asked the ministers to publicize it. In addition, the monarch also promoted leniency outside the law through special cases and in legislation, and the ministers had accepted the idea that the monarch was the only subject of leniency outside the law. The game playing between the monarch and ministers had led to cautious leniency outside the law and the externalization of leniency according to the law, and aggravated the problems of not giving leniency in the cases that leniency should be given and giving leniency outside the law in favor of relatives, friends and officials and so on. The particularity of Qing society had a certain impact on the practice of leniency outside the law.

Keywords: Qing Dynasty, leniency outside the law, leniency within the law, the game playing between the monarch and ministers


China’s Ratification and Implementation of the Singapore Mediation Convention


Sun Nanxiang


Abstract: The Singapore Mediation Convention aims to establish a direct enforcement mechanism for international settlement agreements resulting from mediation. It responds to the needs of international commercial practices and reflects the trend towards harmonization in international mediation rules. There is still a gap between relevant legislations and judicial practices in China and basic requirements of the Convention. The main problems include: international settlement agreements still have no enforceability, the individual mediation system still has not been established, and the idea of enforcement of commercial mediation still needs to be updated in China. In essence, the Singapore Mediation Convention aims not only to overcome the difficulties in execution, but also, more importantly, to build a friendly dispute resolution mechanism in the international commercial field. China, as a responsible country, should actively create conditions for the ratification the Convention and, in particular, clarify the independent remedy status of international commercial mediation in domestic legal system. In the implementation of the Convention, China should give full play to the function of judicial review, establish a code of conduct for mediators, and, through the improvement of judicial remedy for a third party, establish an implementation mechanism that is both compatible with advanced international experiences and able to address China’s core concerns.

Keywords: Singapore Mediation Convention, international commercial mediation, implementation of law, judicial review


Creation of a Law-based Business Environment in the Context of Cooperative Governance


Shi Youqi and Chen Kexiang


Abstract:The in-depth integration of the two major themes - optimization of business environment and construction of the rule of law - requires the government to create a law-based business environment based on the evolution of the relationship between the government, market and society and adopt corresponding institutional measures and action plans. The rise of cooperative governance in the reformation of the public domain has set a realistic context for the creation of business environment. In this context, the transformation of the governance structure, the expansion of governance demands, the integration of governance resources, and the alternation of governance processes require the government to rely on such means as the adjustment of the structure of the rule of law, the balance of its values, and the expansion of its framework and the forms of its sources of law to give full play to market functions, coordinate diversified interests, improve the normative system and provide platforms for innovation, so as to conform to the law of the logical evolution of the creation of a law-based business environment. The goal of creating a law-based business environment can be achieved through such concrete approaches as defining the institutional boundaries of the cooperation between the government, the market and society, creating a law-based environment that combines the dual requirements of form and substance, promoting the inclusiveness of legal systems, and transforming the mode of the rule of law.

Keywords: cooperative governance, creation of a law-based business environment, institutional innovation, inclusive governance


Critique of the Indicatorization of Insolvency Law


Gao Simin


Abstract:Although the World Bank Group’s Doing Business Indicators (DBIs) can make up for the shortcoming of "black box problem" in comparative law caused by the lack of clear metrics, it is biased in legal origins and flawed in measurement, and its pursuit of uniform best rules may lead to regulatory moral hazard. The World Bank's Resolving Insolvency Indicators (RII) also has such problems as flaws in procedures and objects of assessment, defects in measurement methods which can’t truly reflect the recovery rate, and misunderstandings of going concern value of reorganization regime. In China, the new financing rule, the voting rule of impaired parties, the rule on information accessibility for creditors and other rules set forth in the Judicial Interpretation III of Enterprise Bankruptcy Law, which benchmarks the RII, are imperfect and still need some improvements. The existing rules of executive contract and of best interests of creditors, which got the full scores by RII, fail to respond effectively to the demands of practice due to some defects. Indicators of the efficiency of bankruptcy law should focus on assessing the fulfillment of two objects, namely the optimal allocation of control and assets of the insolvent firms and the protection of the expected return on investment before and after firms’ bankruptcy, ensure the efficiency and bottom-line fairness of collective resolutions in insolvency proceedings, and rationally allocate the decision-making power of new financing among the trustee, creditors' meetings and the court.

Keywords: quantitative comparative law, Doing Business, Resolving Insolvency Indicators (RII), new financing in insolvency, creditor protection