Chinese Journal of Law(4-2021)



Vol. 43, No. 4, July 2021




The Inheritance and Development of Marxist Ideas of the Rule of Law by Xi Jinping Thought on the Rule of Law SUN Qian

A New Criterion on the Distinction Between Legal Interpretation and Legal Renewal CHEN Kun

State Protection of Fundamental Rights LI Haiping

The Principle of Prohibiting Under-protection in the Constitution CHEN Zheng

Critique of and Reflections on the Theory of Unequal Civil Rights Capacity of Natural Persons WANG Zhigang

The Development of the Liability System of Restitution for Unjust Enrichment in the Civil Code CHEN Ziqiang

The Legitimacy and Independence of Disgorgement Damages for Breach of Contract

WU Guozhe & CHANGWEN Xiping

Determination of Knowledge Attribution of Legal Persons in Situation of Separation Between Knowledge and Behavior XIAO Xin

Anti-monopoly Regulation of Internet Platforms from the Perspective of Publicness

ZHANG Chenyin

The Judicial Practice and Reconstruction of Sentencing Guidelines PENG Yali

An Examination of the System of Past Practices in the Song Dynasty



The Inheritance and Development of Marxist Ideas of the Rule of Law by Xi Jinping Thought on the Rule of Law

SUN Qian

Abstract: Xi Jinping Thought on the Rule of Law, as an important part of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, provides a fundamental guideline and a roadmap for China to pursue law-based governance. Inspired by the general principles of Marxism, Comrade Xi Jinping seeks to guide the progress of rule of law in China by carrying forward Marxist ideas about the material, political, people-centered, social, practical, and inheriting natures of law. Based on Marxist positions, views and methods, Comrade Xi Jinping declares that China will unswervingly follow the path of socialist rule of law with Chinese characteristics, establishing for the first time the scientific connotation of the socialist system of law with Chinese characteristics. He also clearly defines the rule of law as a vital concept of governance and scientifically designs the objectives, tasks and stages of the development of the socialist rule of law. The Thought shows distinctive Chinese characteristics, practical characteristics and characteristics of the contemporary times, creatively enriches and develops Marxist ideas of the rule of law, and provides a powerful ideological tool for the construction of a socialist legal system with Chinese characteristics and a law-based socialist state.


Key Words: Xi Jinping Thought on the Rule of Law, Marxist ideas of the rule of law, comprehensive law-based governance, adherence to the leadership of the CPC, being people-centered


A New Criterion on the Distinction Between Legal Interpretation and Legal Renewal


Abstract: The prevailing doctrine of legal methodology distinguishes between legal interpretation and legal renewal, and has taken possible semantic meaning as the distinguishing criterion for a long period of time. With the development of meaning theory and the deepening of the study of legal interpretation, more and more scholars have realized the shortcomings of this criterion and proposed some new ones. But these new criterions are not satisfactory, for they either have an inappropriate extension, and thus will encounter counterexamples, or lack generality and/or clarity, and thus cannot effectively distinguish between renewal and interpretation. A proper criterion should be neutral to different positions of legal interpretation, so that various values related to the rule of law may have the opportunity to participate in the weighing process of legal interpretation. Based on reflections on criteria that have been proposed, a composite criterion can be advanced: an activity that explores the meaning of a legal text is interpretation, if and only if: (1) it is an activity that explores the conventional meaning, the speaker meaning, or the true meaning of the legal text; or (2) when conventional meaning does not exist in particular cases, it is an activity to explore the reasonable meaning of the legal text.


Key Words: legal interpretation, legal renewal, possible semantic meaning, speaker meaning, legislative intent, value weighing


State Protection of Fundamental Rights

LI Haiping

Abstract: The theory of state obligation of protection based on objective value is the prevailing theoretical paradigm of the state obligation to protect fundamental rights in Chinese academia today. This theoretical paradigm has a few logical defects, including insignificance of objective values, the paradox of subjectivization of objective values and indistinguishability of state protection among natural rights, fundamental rights and civil rights. The theory of state protection obligation based on subjective rights is the development direction in China because it can not only be justified by combining the general human rights clause with the specific fundamental rights clauses in the constitution, but also solve the theoretical predicament of state protection obligation based on objective values. The three constituent elements of the subjective rights theory of state protection obligation are: the structure of the state-victim-inflictor triangular relationship containing the element of publicness; the rule attribute of the right to be protected, and the conditional application of minimum degree of effective protection; and constitutionality interpretation in judicial decisions. With the transformation of the theory on the state obligation to protect fundamental rights from an objective value theory to a subjective rights theory, the dual nature of fundamental rights will evolve from a subjective right and objective order of value to the right to defense and the right to be protected.


Key Words: fundamental rights, state obligation of protection, objective order of values, rights to be protected, the principle of prohibiting insufficient protection



The Principle of Prohibiting Under-protection in the Constitution

CHEN Zheng

Abstract: Regarding the fulfillment of the state's obligation to protect fundamental rights, the principle of prohibiting under-protection should be applied to examine whether the protection plan adopted by legislators meets the constitutional requirements. There is no structural symmetry between the principle of prohibiting under-protection and the principle of proportionality, and it is not feasible to construct the former by imitating the latter. Regardless of whether there is a conflict of fundamental rights, the principle of prohibiting under-protection only puts forward the minimum protection requirements for legislators. As long as the (partial) legislative inaction is anticipated to be possible for the protected person, legislators will not violate this principle. In the determination of anticipated possibility, comprehensive consideration should be made of a number factors and, on the basis of modern scientific and technological cognition, the current normal level of acceptance and tolerance by social individuals should be taken as the standard. In the case of conflict of fundamental rights, legislators still have a certain decision-making space under the two-way constraint of the two principles. Compared with the principle of proportionality, the principle of prohibition of under-protection usually leaves legislators with more decision-making space.


Key Words: principle of prohibition of under-protection, principle of proportionality, the state obligation of protection, anticipated possibility, fundamental rights


Critique of and Reflections on the Theory of Unequal Civil Rights Capacity of Natural Persons

WANG Zhigang

Abstract: The disputes over the nature of a natural person's capacity for rights is mainly manifested in the debate between the following two different theories: one theory claims that the capacity for rights is transcendental and equal, and cannot be abandoned and deprived; while the other theory claims that the capacity for rights is granted by national legislation, which is unequal and can be abandoned and deprived. The latter theory is incorrect because it not only contains the legal danger of taking the granting and depriving of the capacity for rights as the governing tool, but also misunderstands the concept of the capacity for rights, confuses norms and facts and the capacity for rights and rights, and cuts the linkage between the norms of the capacity for rights and the ethics on which they are based. A "specific right capacity” such as the marriage capacity, is not the capacity for rights, but a capacity for liberty as reflected by the setting of qualifications for a specific act. The system of rights capacity is only responsible for the distribution of legal subject qualifications, but does not solve the problems of the availability of rights and the conditions for enjoying rights. The latter two issues are the issues of right distribution, which need to be applied to the consideration of the adaptability of rights and the consideration of the conditions for the enjoyment of rights. In addition to the three characteristics advocated by the first theory, the capacity for rights of a natural person is also characterized by indivisibility, normativeness and potentiality.


Key Words: natural person, capacity for civil rights, specific right capacity, capacity for marriage


The Development of the Liability System of Restitution for Unjust Enrichment in the Civil Code

CHEN Ziqiang

Abstract: Unjust enrichment is provided for in the General Principles of the Civil Law, and its legal effect is further stipulated in the Civil Code. It seems to be taken for granted that, in the determination of the scope of restitution, a distinction should be made between bona fide enrichment and malicious enrichment. There is a consensus that unjust enrichment can be divided into two types: payment enrichment and non-payment enrichment. However, if the provisions on the effect of restitution are applied indiscriminately to all unjust enrichment cases regardless of the differences between various factors of initiation of restitution, then the "non-unity theory" has no practical significance. In the case of invalidity or cancellation of a bilateral contract, the payment already made has no legal basis and constitutes unjust enrichment. However, Article 157 of the Civil Code should be given priority among legal provisions applicable to the content of the restitution relationship. If the restitution of original property is not possible, the court should order compensation at an estimated price, rather than apply the provisions of Articles 986 and 987 of the Civil Code - the most important objects of the application of these two articles are cases of one-party payment not based on bilateral contract and cases of rights infringement-type unjust enrichment. The party who is unjustly enriched pecuniarily has the obligation to return the amount of enrichment, and usually the issue of non-existence of the benefit from the enrichment does not arise in such cases. However, in cases of overpayment of wage or child support, the non-existence of benefit is often defined broadly based on value judgment other than unjust enrichment law. The interpretation and application of Article 987 of the Civil Code on compensation for losses resulting from malicious enrichment need to be clarified. If the compensation is considered to be a tort liability, the relationship between restitution for unjust enrichment and tort liability will become helplessly messy.


Key Words: restitution for unjust enrichment, invalidity of bilateral contract, non-existence of received benefit, liability for malicious enrichment


The Legitimacy and Independence of Disgorgement Damages for Breach of Contract

WU Guozhe & CHANGWEN Xiping

Abstract: Benefits derived from breach of contract are the specific and definite benefits obtained by the defaulting party from a third party through breach of contract, rather than through a transfer made by the non-defaulting party or other forms of value transfer. The purpose of disgorgement damages for breach of contract is to make the breaching party disgorge all his illegal gains, rather than to make up for the losses suffered by the non-breaching party. The system has specific constituent elements, especially the requirements of subjective intent and causality. It is also necessary to pay attention to the exceptional circumstances for its application. In the demonstration of its legitimacy, the application of efficient breach of contract should first be excluded, and then the demonstration can be carried out from two perspectives: concept and principle, and the exclusion of the application of civil confiscation. It cannot be realized through damages system or unjust enrichment system, and it is different from other similar legal systems in a number of ways. It cannot be incorporated into the existing system of rules, so recognizing its independence has become an inevitable choice.


Key Words: liability for breach of contract, benefits derived from breach of contract, the disgorgement damages for breach of contract, damages, unjust enrichment


Determination of Knowledge Attribution of Legal Persons in Situation of Separation Between Knowledge and Behavior


Abstract: A legal person, as a labor-division organization, is often in a situation of separation between knowledge and behavior. How to carry out knowledge attribution of the legal person, especially whether it can be determined by the collective knowledge attribution doctrine in such situation, has become an important issue in practice and theory. According to the principle of integrity inherent in the knowledge-based rules and legal person attribution rules, the collective attribution doctrine itself is not desirable. The knowledge attribution of a legal person under the separation situation essentially still relies on the determination of the reasonable liability scope of the legal person based on certain reasons. In this regard, both the organ theory and the equal treatment theory are fundamentally flawed. The knowledge responsibility theory is more appropriate as it bases knowledge attribution in the event of separation on the violation by the legal person of its own obligation to be an informed organization. However, as this theory essentially follows the idea of negligence liability, it has an inherent conflict with the knowledge-based rules that explicitly exclude "should know". To apply this theory in such situation, it is necessary to take into consideration such factors as the scope, the negative legal consequences, the appropriateness of negligence liability, the predictability of the outcome and the judicial policy of the relevant knowledge-based rules.


Key Words: separation between knowledge and behavior, collective knowledge attribution, knowledge-based rules, attribution rules of legal persons, the theory of knowledge responsibility


Anti-monopoly Regulation of Internet Platforms from the Perspective of Publicness

ZHANG Chenyin

Abstract: After experiencing three stages of evolution, Internet platforms have become new economic hubs with such functions as information accumulation, element production, resource allocation and rule making. They are an organizational form that enables the relevant entities to jointly create value, and plays the ecological function characterized by integration of multiple industries. Internet platforms reshape the process and organizational form of economic production, changes the method of resource allocation, and becomes the third force between political power and market rights. Internet platform economy is different from traditional economy in terms of competition features, posing challenges to global anti-monopoly regulation in technique, rules and juridical logic. In essence, this is the result of the increasing penetration by Internet platforms into social economy, and the transformation of their nature from private to public. Because of the lack of efficient regulation, the dissimilation of the public nature of platforms has led to the distortion of competition and monopoly, concretely manifested in the non-openness and non-neutrality of data elements and platform elements. In order to restore the competition order, promote innovation and protect the rights of Internet platform participants, it is necessary to reform the current anti-monopoly system, establish anti-monopoly rules with “abusing of publicness” as the underlying logic, and impose competitive liabilities on internet platform operators.


Key Words: Internet platform, anti-monopoly, publicness, competitive obligation, abuse of publicness


The Judicial Practice and Reconstruction of Sentencing Guidelines


Abstract: Although studies on sentencing guidelines are abundant in China, no empirical research has been carried out to quantitatively evaluate the actual effects of the guidelines. As a result, the existing doctrinal researches are unable to provide the legislative techniques necessary for the improvement of the guidelines. This article empirically examined the judicial practice of sentencing guidelines through the lens of crime of theft. The Stata empirical analysis shows that the effect of mitigating circumstances is generally weaker than that of aggravating circumstances in the sentencing of fixed-term imprisonment. Moreover, the sentencing guidelines failed to provide sufficient guidance on fines. On the basis of the above analysis, this article draws on the legislative techniques of the British and American sentencing guidelines, and put forward suggestions for improving the sentencing guideline system in China. Firstly, the starting point for sentencing should be determined as a specific point instead of a range; secondly, the decisive role of the marginal amount should be reduced; thirdly, when determining the benchmark sentence from the starting point, the amount should be considered together; fourthly, in the arrangement of sentencing factors, those relating to deterrence should be determined before those relating to retribution, so as to limit the final sentence under just deserts; and finally, it is necessary to strengthen the guidance on fines and to ensure that the fines, taken together with other sanctions imposed, are punitive in nature.


Key Words: sentencing guidelines, theft, benchmark sentence, amount, fines


An Examination of the System of Past Practices in the Song Dynasty


Abstract: In the Song Dynasty, past practices, also called precedents, were very important sources of law besides so-called statutory laws, such as the Penal Code, edicts and decrees. Past practices were usually compiled by official historians to record some facts or institutional arrangements in the past, which made them different from the modern statutory law and customary law both in form and in content. According to the time dimension, the past practices of the Song Dynasty can be divided into the practices of the previous generation, the practices of ancestors and the practices of the previous dynasties. Reviewing the past practices almost became a kind of self-consciousness when the emperor and his subjects met with great events in the Song Dynasty. However, sometimes the past practices were not followed. Then the change might be regard as a new practice by later generations. The legal effect of past practices in the Song Dynasty did not lie in the actual acts of people imitating and obeying the past practices, but in the fact that people had taken them as part of the legal system that must be obeyed. Relying on past practices brought authority, coherence and unity to the political rule of the emperors of Song Dynasty and, to some extent, overcame the drawbacks of the rule of man, which should not be ignored when we investigate the political and legal systems in the Song Dynasty and even in the whole ancient Chinese history.


Key Words: the Song Dynasty, past practices, classification, origin, legal effect