Chinese Journal of Law(3-2021)




The Rights-based Analysis and Procedural Regulation of Dignified Death


SHEN Deyong & LIU Jingkun


Abstract: In modern society, dignified death is a controversial social phenomenon that involves both the developing medical standards of death and such legal issues as personal dignity and life self-determination. Compared with natural death, dignified death can be seen as the last choice of the dying patients suffering from unbearable pain. The focus of dignified death is not the death itself, but the security and dignity of life. By recognizing the right to life as the basis of dignified death, a dual framework containing positive rights and negative rights can be established, which embraces a system of rights including the right to the security of life, the right to self-determination of life, the right to the choice of medical plans, the right to palliative care, and the right to the assistance of physicians. In order to protect the right to life of the patients and prevent the abuse of dignified death as well as the legal risks faced by physicians, it is necessary to establish the relevant rules and procedures based on the rationale of the patient’s best interests, which include the rule of limiting the application to the specified patients, the rule of informed consent of the patients, and the due process of the medical procedure, so as to contribute to the refinement of the medical treatments of the dying patients.

Keywords: dignified death, personal dignity, the right to life, the best interests, procedural regulation


Comprehensively Promoting Law-based Governance and Perfecting the Third-Party Evaluation System


ZHOU Hanhua


Abstract: There are two models of third-party evaluation of the rule of law in China: evaluation under entrustment and independent evaluation. The two models are quite different from each other in terms of legal nature, governance mechanism and operation process. They represent two different driving forces of the development of the rule of law: one is top-down political impetus, and the other is bottom-up social and competitive impetus. They also represent the functional mechanisms of two different paradigms of the rule of law: independent evaluation is a new technique of data governance embodying in a concentrated way the transformation of the paradigm of the rule of law. Third-party evaluation, as a new thing, is currently faced with such practical problems as lack of norms of conduct, unclear direction of evaluation function, and possible aggravation of the burden of assessment targets. Only by deepening the theoretical understanding of third-party evaluation, can we correctly adjust the direction of future development of this system, advance the construction of relevant institutions, and speed up the process of institutional openness.

Keywords: third-party evaluation, law-based governance, driving forces of the rule of law, data governance, paradigm of the rule of law


Constructing the Norms of Traffic Police Off-site Law Enforcement in China


YU Lingyun


Abstract:China made the first creative provisions on the off-site law enforcement by traffic police in Article 114 of the 2003 Road Traffic Safety Law. On the basis of these provisions, the norm system of off-site law enforcement by traffic police has been gradually developed. Article 41 of the Law on Administrative Penalty, as revised in 2021, absorbs and develops the core elements of the norms on off-site law enforcement by traffic police. However, with the extension of automatic administration from capturing records to self-help processing, many practical problems remain to be solved or responded to. For the problems that cannot be solved by technical updating for the time being, it is necessary to introduce or clarify more institutional norms, and further enrich and perfect the system of norms on off-site enforcement by traffic police through the amendment of the Road Traffic Safety Law.

Keywords: off-site law enforcement, traffic police law enforcement, Administrative Penalty Law, Road Traffic Safety Law


The Chinese Model of the Legal Structure of Property Management Service Contracts


XU Diyu


Abstract:In China, property management service contracts are subject to abnormal contracting rules and inherently different from other typical contracts in the Chinese Civil Code. As to legal construction, property management service contracts are of the nature of collective contracts and have the same normative goal as collective contracts, i.e., to achieve the “balance of power” between the parties by creating a structure of collective contracting and giving it normative force. Incorporating property management service contracts into the Civil Code does not change its normative model of special rules. Owners’ separate ownership in a building, including property management service contracts, constitutes a micro-system and a body of special rules on the ownership system in the Civil Code. Property management service contracts should be interpreted within this micro-system when understanding and applying rules on property management service contracts.

Keywords:property management service contract, collective contracting, collective contract, normative force, model of special rules


Nature and Mode of Regulation of Non-public Offering of Corporate Bonds


YE Lin


Abstract:The Chinese Securities Law adopts the dichotomy of public offering of corporate bonds and non-public offering of corporate bonds, according to which securities law applies first in the case of public offering, while company law applies directly in the case of non-public offering. However, such dichotomy is not comprehensive enough, in that it cannot adapt to the complex and changeable bond market, and can easily result in the deviation of regulation from the its purpose. To protect the interest of public investors and regulate companies’ acts of debt finance, rules of registration immunity can be introduced on the basis of the dichotomy, but they should not be seen as a type of non-public offering, or an opposite to public offering. By developing the causes of immunity, some debt finances that ostensibly take the form of non-public offering should be treated as public offering. Similarly, some offering of bonds that ostensibly take the form of public offering should be treated as registration immunity. Moreover, rules in restraint of resale should be introduced to reduce the possibility of sham public offering and enhance the adaptability of the rules of non-public offering. The Chinese Securities Law should also confirm the regulatory functions of self-regulatory organizations such as the National Association of Financial Market Institutional Investors and the Securities Association of China in the context of regulating the non-public offering of corporate bonds.

Keywords:corporate bonds, non-public offering, private placement, illegal fund-raising, registration-based system


New Public Unity Theory of Platform Regulation




Abstract: Government regulation of the economy has always been an antitrust method parallel to the antitrust law. To fully address the problems caused by the monopoly power of digital giants, a new regime should be created to regulate these giants as if they were public utilities. The combination of the regulation of public utilities and the antitrust law will strengthen the antitrust law enforcement. Since the regulation of public utilities is able to realize broader social management goals in addition to promoting competition, the digital platform regulation policy that combines antitrust law and regulation law has transformed itself from a purely economic antitrust policy into a broader social regulation policy that will better respond to the current social demands. The new public utility regulatory framework should contain three key elements: freedom of competition, non-discrimination and consumer protection. Meanwhile, China should establish a new independent regulatory agency with adequate professional expertise, clarify the position of private enterprises in this regulatory system, and properly combine and coordinate antitrust law and regulation law.

Keywords:platform antitrust, regulation of public utilities, platform neutrality


Classification and Interpretation Rules of Mandatory Norms in Cross-departmental Law Contract Disputes




Abstract:Both the separation theory adopted in the decisions on disputes over VAM contracts and the contracting fault theory imply the distinction between mandatory norms, which is quite different from the traditional classification of mandatory norms. By synthesizing these two theories, a contract in the sense of process can be divided into three basic stages: contracting, validity and performance, and interfaces between contract law and other department laws should be extended from single interface (validity interface) to all interfaces. Correspondingly, mandatory norms on contract can be divided into the contracting norms, validity norms and enforceability norms, so as to pursue the integration and maximization of the values of both the contract law and other department laws. Based on the concept of all interfaces, the court should apply the final rule, the remedy rule and the possible rule as the methods of explaining mandatory norms in the judgment of cross-departmental law contract disputes, so as to reduce as far as possible the compulsion on the contract on the premise of not detracting from the effect of other laws, update the existing classification and interpretation rules of mandatory norms as well as the grounds for the judgment of the cross-departmental law contract disputes.

Keywords: mandatory norm, VAM, contracting fault, validity of contract, performance of contract


The Dogmatics of Criminal Law and Empirical Research


BAI Jianjun


Abstract:The differences between qualitative research and quantitative analysis and between normative science and factual science are only superficial differences between dogmatics of criminal law and empirical research of criminal law, which cover up the intrinsic values of the two. The rationality assumptions of positive law and that of the collective experience of empirical legal research are both relative. Therefore, there is no fundamental opposition between them and it is not impossible to study the dogmatics of criminal law with the method of empirical research. Dogmatics of criminal law and empirical research of criminal law are unified in practical rationality, meet in a large sample of criminal law cases, and intersect in the validity of law. Neither the empirical criminal law research without dogmatics nor the criminal law dogmatics without empirical research is conducive to the comprehensive development of criminal law research in China. The most extreme evil is the crime of illegally depriving another person’s life and the most extreme negative social evaluation is the criminal punishment of depriving the offender’s life. These two deprivations are the boundaries of all other deprivations. Therefore, the application of the death penalty in homicide cases is “the first piece of domino” in Chinese criminal law. Taking the criminal penalty dogmatics research of near 80,000 death penalty cases as an example, this paper shows that the empirical research of criminal dogmatics is a descriptive criticism of a large sample of criminal law phenomenon, including the dogmatic empirical research of criminal theories, the dogmatic empirical research of criminal law provisions and the dogmatic empirical research of criminal justice practices.

Keywords:dogmatics of criminal law, empirical research, large sample of criminal law cases, validity of law


Consciousness of Disposition in Fraud


YUAN Guohe


Abstract: The doctrine of unnecessity of disposition consciousness cannot properly distinguish theft from fraud, and is inconsistent with the proposition that the right holder’s consent shall exclude theft. Disposition is a proper means to realize the value of property and thus worthy of legal protection. Since property right is a self-determination right, the exercise of it must reflect the true intention of the right holder. The doctrine of necessity of disposition consciousness can support the comprehensive expression of differences between theft and fraud in the type and degree of their unlawfulness. Therefore, the right holder’s disposition consciousness is a fundamental premise of the constitution of fraud. In the crime of fraud, the right holder’s error only refers to the error about motive, in which the defective cognition of disposed property’s ontological attributes is not included. With the respect to the degree of disposition consciousness, the standpoint of a strict disposition consciousness should be firmly adhered to. The right holder must clearly understand that his disposition behavior would lead to the transfer of his possession of or domination over a specific amount of property, but needs not be aware of the value of the disposed property. The misunderstanding of the property’s weight is just an error about motive, which is irrelevant to the disposition consciousness. In some special types of transactions, the right holder packages several single items into a collection when delivering, without caring about the specific number of individual properties. Only in such situations can the general disposition consciousness against the whole be exceptionally admitted. Only when the victim has an accurate knowledge about the amount, can a conscious disposition of the creditor’s right for deposits be affirmed.

Keywords: fraud, disposition consciousness, fraud of interest


Research on Divided Trial of Cases of Organized Crimes


LONG Zongzhi


Abstract: Cases of organized crime involve multiple defendants and multiple charges that are closely related to each other, and in the trial of such cases the court must ascertain the state and framework of the criminal organization. Divided trial of cases of organized crime that involve too many defendants can improve the order of trial, avoid excessive delay, guarantee the quality of examination and debate at court, reduce the difficulty of court trial, and embody criminal policies. However, the division of trial can bring about some prominent problems, such as fragmentation of trial, limitation on the cross-examination of different defendants, administrative features of judgments, and especially, violations of the due process, such as “evaluation of evidence without examination” and “trial in absentia”. In judicial practice, there exist such problems as random and excessive division of trials, lack of guarantee of procedural rights of the defendants, etc. To improve the system of divided trial of cases of organized crime, China should adhere to the principle of “one case tried by one court”, and allow divided trial only as a necessary exception. When the trial has to be divided, the division should follow the logic of the case itself and rules of litigation; rights of defendants should be sufficiently protected and cases in which the defendants plead guilty and accept the punishments should be cautiously dealt with; and attention should be paid to the composition of the trial organization and the coordination between different trials. Confessions of defendants in one trial should be regarded as confessions instead of witness testimony in other trials. Meanwhile, the rules on the combination and division of related trials should be further improved.

Keywords: organized crimes, division of trial; combination of trial


The System Structure of Extraterritorial Jurisdiction




Abstract:Currently, a crucial issue faced by China is how to construct a theory on extraterritorial jurisdiction and build a system of extraterritorial application of domestic laws and the key to address this issue is the proper demarcation between extraterritorial legislative jurisdiction and extraterritorial judicial jurisdiction. For both jurisdictions, the distinction between public and private laws lays a foundation for theoretical and practical pursuits. The principle of territoriality has not been strictly followed by various states in legislative and judicial jurisdictions. The basic methods for extraterritorial legislative jurisdiction are unilateralism and multilateralism, while those for the judicial jurisdiction are general and specific jurisdictions. Because of the lack of uniform and systematic standards, the extraterritorial application of public law is a hard problem to tackle, and public international law cannot provide coherent principles or standards except for some external limitations. Public international law, including customary law, however, imposes no similar restrictions on the extraterritorial jurisdiction of private law. The system of extraterritorial jurisdiction should not be constructed in a top-down manner according to a unified principle. The appropriate way is to develop different rules for the extraterritorial legislative jurisdiction of private law, for the extraterritorial judicial jurisdiction of private law, and for the extraterritorial judicial jurisdiction of public law. Extraterritorial legislative jurisdiction and extraterritorial judicial jurisdiction pursue different legal aims and perform different legal functions, and they do not take value uniformity as their common objective.

Keywords: extraterritorial jurisdiction, extraterritorial legislative jurisdiction, extraterritorial judicial jurisdiction, the principle of territoriality


Measures for the Management of Litigation Source in Administrative Trial in a New Era


ZHANG Zhiyuan


Abstract:The concept of management of litigation source is embedded in the process of administrative trial. It is not only the political embodiment of the adherence to the Party's absolute leadership over the work of people's courts and the practical demand of people's courts for getting out of the predicament in administrative trial, but also the true portrayal of the transformation of the administrative trial system with Chinese characteristics from the mode of pure power confrontation to the mode that gives consideration to power interaction. In the policy participatory litigation source management pattern aimed at effectively regulating the increment of administrative litigation, the people's court pursues the litigation source management by playing the role of the participant and diverter. In the legal and normative litigation source management pattern aimed at eradicating the soil for administrative disputes, the people's court pursues the management of the source of appeals by playing the role of the leader and referee. To create an ideal situation of management of litigation source in accordance with law in trial activities, people’s courts should promote of the extension of the objective clause on litigation, the reinforcement of the legitimacy of pre-litigation mediation, the standardization of the procedure for the separation between complicated cases and simple ones, the expansion of the scope of application of clauses on the concurrent settlement of related civil disputes and the appropriate expansion of the scope of application of change of judgment, so as to accelerate the historical process of the integration of the administrative trail system into the rule of law.

Keywords: governance of litigation sources, pre-litigation medication, social governance, integrated construction of the rule of law, administrative trial system with Chinese characteristics