Chinese Journal of Law(5-2021)




Identity Construction and Its Legal Protection in the Digital Era


LU Qing


Abstract: The object of personal information protection is not the personal information itself, but the autonomy and integrity of the individual’s identity construction in various social relations. A historical review shows that the development of personality rights is a process in which personal identity rights and interests are continuously manifested by law. The characteristic of personal information protection rules lies in the shift from “protection of personal identity as a result” to “protection of personal identity as a process of generation”. The protection of personal identity rights, especially dynamic identity rights (i.e., the social mirror image of individuals), cannot be covered by the protection of specific personality rights such as name, portrait, reputation, and privacy. From the perspective of identity construction, a series of institutional arrangements for personal information need to be reorganized and explained. In the digital age, faced with the identity crisis that may be brought about by the digital presentation of the individual self, rebuilding a new order of interpersonal relationship adjustment with digital identity rather than personal information as the center may be the direction of the future development of the rule of law.

Keywords:identity construction, personal information, digital identity


The Method of Case-by-Case Scrutiny and Comparison for the Examination of the Content of Juristic Acts


LI Shigang


Abstract: The normative nature of juristic acts raises the institutional demand for controlling the autonomy of will, namely, taking the content of a judicial act as the starting point to compare the conflicting interests involved in two norms (judicial acts and public order), so as to determine the validity of the judicial act. Therefore, the method of case-by-case scrutiny and comparison should be adopted in the determination of the legality of the content of a judicial act: the judge should identify the rule of “public order” and the interests it protects, and compare the interests with the specific content of the putative illegal judicial act in an individual case. Specifically, it takes public order as the basis, and whether the interests being protected by the public order are damaged as the substantive criterion. Interests protected by public order may be divided into public interests and individual interests, and the corresponding sanctions may also be divided into absolute nullity and relative nullity (revocable) of a juristic act. The above functions and methods of analysis of the legality of the content of juristic acts are helpful to the interpretation of Articles 153 and 154 of the Chinese Civil Code, which are general terms, and Articles 496 and 497 of the Code, which concern the rules on the validity of standard terms.

Keywords: juristic acts, nullity, public order and good morals, mandatory provision, standard terms


A Theoretical Review of the Concept of Subjective Rights


CHEN Banfeng


Abstract:Chinese scholars have given a number of different interpretations to the provision "A fetus is deemed as having the capacity for enjoying civil-law rights" in Article 16 of the Civil Code, but there is still room for improvement in the interpretation of this provision. It seems that scholars are unable to rid themselves of the influence of the concept system of rights when analyzing this issue, and they all unconsciously follow the formal logic path from rights capacity to rights, which leads to the theoretical focus on the question of whether the fetus has rights capacity. However, the concept system of rights lacks explanatory power in the situation where the subject does not exist definitely. The far-fetched use of the concept to explain the protection of fetal interests will destroy the stability and logical continuity of the system. We may accept the deficiency of the concept system of rights, and make up for it with the concept of estados de vinculação (state of constraint), which belongs to the category of objective law, so as to create a situation in which the two concept systems, namely the system of subjective rights and objective law and the system of rights and estados de vinculação, go hand in hand. When the subject is determined to exist, it is described by the concept of right; when the subject is absent, it is defined by the concept of estados de vinculação. As far as estados de vinculação is concerned, although there is no subject, the interest is still under the protection of law. After the subject appears, it becomes a right. In the concept of estados de vinculação, no question is asked about whether one has the rights capacity, whether one is the subject of rights, or what kind of legal relationship one has. Besides the protection of the interests before birth, the concept of estados de vinculação can also be applied to the protection of the interests of the deceased and the interests before the establishment of the legal person.

Keywords: fetus, rights capacity, estados de vinculação, subjective rights


Subsequent Extinction of Property, Contradictory Behavior and Validity of Will


LIU Zhengfeng


Abstract:Testamentary dispositions create statutory debts between an obligor and an heir by will or devisee. According to differences of objects, these dispositions may be divided into three categories: general disposition, generic disposition and specific disposition. Only in specific disposition does the impossibility of performance occur if its subject-matter has ceased to exist as a part of the testator’s property at his death. As for the effect of the impossibility of performance, it is not necessary to make a special provision of invalidity different from the exclusion of the duty of performance in the law of obligation. There are two types of extinction: one caused by the act of the testator and the other by the residual legal facts. In the former case, it is absolutely essential to firstly determine whether the contradictory norm applies, and then deliberate on whether to exclude the duty of performance. In the latter case, the established norms of subrogation in rem cannot be applied by analogy. Interpretation of will is the only way to mitigate the stringent effects of exclusion. The norm of the contradictory behavior is a rebuttable presumption in nature. Whether there is a high degree of probability between the behavior and the intention of revocation constitutes the criterion for the judgment in specific situations, even in complex occasions such as agency and unwinding of legal act. Contradictory behavior should not be limited to legal acts against specific property, but should also cover other legal acts such as divorce and termination of adoption. Besides, quasi-legal acts, real acts and acts under other branch laws may also be incorporated into contradictory behavior through judge-made law.

Keywords:contradictory behavior, specific property, exclusion of the duty of performance, revocation


The Duty to Review Government Rules and Administrative Regulations Invoked in a Civil Judgment




Abstract:The legal meaning and applicable standard of the no-withdrawing-contribution rule have always been vague. The "damage to corporate rights and interests" standard established by judicial interpretations fails to solve the problem of the application of the rule. The "impairment of capital" standard improves the operability of the identification of the withdrawal of contribution, but it is faced with difficulties in screening out transactions that meet the capital maintenance requirements but damage a company's solvency. The dilemma of the no-withdrawing-contribution rule is rooted in and reflects the structural defects of the distribution regime in the Chinese Company Law. In carrying out systematic reform of the corporate distribution regime, China should try to establish a combination mode that allows the equity solvency test and the capital maintenance rules to complement each other’s advantages by taking capital maintenance rules as the basic framework to provide clear rules on corporate distributions that do not impose excessive burden on capital operation and by using the equity solvency test as the bottom mechanism to require directors to perform the duty of prudent assessment and to check the improper behaviors which are difficult to eliminate under the capital maintenance rules. In the framework of the distribution regime under the combination mode, the no-withdrawing-contribution rule should not be applied as an adjudicative rule. The various behaviors to the rule is originally directed should be dealt with according to the dividend distribution rules, the share repurchase rules and the capital reduction rules, and examined by the equity solvency test.

Keywords:withdrawal of contribution, corporate distribution, capital maintenance, equity solvency test, duties of directors


The Shifting of the Duty of Specific Allegation in Civil Procedure




Abstract: The shifting of the duty of specific allegation means that, under certain circumstances, the burden of persuasion shifts from the party who has originally taken it to the other party. This shifting is based on the duty of truthful and complete statement and it is aimed at overcoming the evidence-producing difficulty resulting from a huge information drop regarding the case between the two parties. This shifting will not lead to the reversion of burden of proof and can be separated from the burden of persuasion. The concept of shifting of the burden of specific allegation has been recognized in the judicial practice in China and is conducive to improving the implied admission system. The condition for applying this shifting should be unified as the following: the party who takes the burden of persuasion is unable to obtain the necessary information to support his case; and the other party can be expected to take the duty of specific allegation. Meanwhile, the duty of specific allegation of the party who takes no burden of persuasion should not be confused with the general obligation of clarification.

Keywords:burden of specific allegation, denial with reason, implied admission, truthful statement, obligation of clarification


Procedural Remedy for the Third Party Claiming Substantive Rights over Subject Matter of Civil Execution




Abstract:To protect the substantive rights of a third person against compulsory enforcement, Article 227 of the Civil Procedure Law establishes a dual remedy system with application for a retrial and action against enforcement as its content. This system directly ties the correctness of procedure to the authenticity of substantive rights, and embodies the dependence of civil procedure law on substantive civil law, which not only is inconsistent with the structure of civil litigation and the principles and rules of the civil procedure law, but also wastes judicial resources, leads to unnecessary litigations, and creates gaps in judicial protection. The dual remedy system should be transformed back into a unitary remedy system, which is the common practice of comparative law: as long as the third person claims a substantive right to exclude the enforcement, he can bring an action against the enforcement, regardless of whether he believes the original judgment is wrong, or whether the enforcement object has already been chosen by the original judgment. Before the legislative amendment, courts can promote the transformation of the dual remedy system into a unitary remedy system.

Keywords: application by a third party for a retrial, the third party’s action against enforcement, “identity of objects”


The Formal Requirements of Restriction of Fundamental Rights in Chinese Constitution


CHEN Chufeng


Abstract:A number of fundamental rights in Chinese Constitution are guaranteed in an unreserved manner, that is, there is no explicit reservation clause on these rights either in laws or in the Constitution. There are three theoretical views on the question of what formal requirement should apply to the restriction of these fundamental rights: reservation in law, reservation in constitution, and abandonment of reservation. Chinese Constitution does not expressly provide for the formal requirement of restriction of fundamental rights, so as maximize the guarantee of these rights. The theory of abandonment of reservation is contrary to the normative purpose of maximizing the guarantee of fundamental rights. Although the theory of reservation in constitution conceptually agrees with this normative purpose, from the perspective of comparative law, its connotation often changes in practice, so that it loses the character of the formal requirement for rights restriction, and therefore is also not feasible. Among the above three theories, the theory of reservation in law is most conducive to the safeguarding of fundamental rights and it is also supported by the principles of democracy and rule of law, the theory of functional propriety, and Article 33 Paragraph 4 of the Chinese Constitution.

Keywords:restriction of fundamental rights, reservation in law, reservation in constitution, constitutional review


The Systematic Reform of the No-withdrawing-Contribution Rule and the Corporate Distribution Regime




Abstract: In a civil judgment, when the judge invokes a document of government rules or administrative regulations as the reasoning basis, he must review the legitimacy and effectiveness of such document. The essence of this kind of review is the judge’s determination of the qualification of the document as reasoning basis by taking the unity of normative order as the standard in the law-finding process. It differs from judicial review exclusively focused on the legitimacy of abstract administration acts in such aspects as institutional properties, purpose of review, degree of proactivity and processing mode. Authoritative written review standards in the field of administrative adjudication can be taken as reference when reviewing a document of government rules or administrative regulations in civil adjudication. However, different review standards should be applied to the review of government rules and that of administrative regulations on the basis of clarifying their respective scopes. In particular, the review of government rules should be limited to specific articles, whereas the review of administrative regulations should be carried out in three aspects, namely the formulation authority, specific articles and the formulation procedure. The presentation of the review results in a civil judgment, especially the assessment of the legitimacy of a document of government rules or administrative regulations, should be more modest and restrained than that in an administrative judgment.

Keywords:basis of judgment, reasoning basis, judicial review, source of civil law, civil-administrative collaboration


“Harmful to Society” in Criminal Intention


ZENG Wenke


Abstract: In Chinese criminal law, “harmful to society” is the most characteristic expression in the concept of intention. Under the theory of normative culpability, to judge whether the actor intentionally committed a crime is no longer a simple fact-based judgment, but a normative judgment. “Harmful to society” shows that when consequences can be attributed to an actor, the actor must have the possibility of forming opposed motives. Intention means that the actor needs to know the facts, but he is not required to know whether his act is “harmful to society”. “Harmful to society” is used only to describe the nature of the act or the result. Norm standard theory means that, according to the laws of science, the state (as the total sum of norms) should use the facts recognized by the actor as judgmental materials to judge whether the act is “harmful to society”. Intention does not require the actor to know whether his act is prohibited by criminal law. The possibility of formal illegal consciousness is just the material used to judge the possibility of substantial illegal consciousness. “Harmful to Society” has already covered the possibility of substantial illegal consciousness, and there is no need to discuss the possibility of illegal consciousness beyond the intention.

Keywords:criminal intention, harmful to society, illegal consciousness, possibility of illegal consciousness


What is the Objectivity of Evidence?


XU Shuhao


Abstract:The objectivity thesis of evidence contains some plausible intuitions. By relying on some philosophical methods developed in recent years, one can formulate a strong version of that thesis and restate the objectivity of evidence as a determination relation between facts of cases and facts of evidence. However, an absolute and infallible metaphysical determination relation is far from practical, which means that it should be weakened into a prima facie determination relation. The practice shaped by prima facie determination can provide guidance to the investigation of case fact, especially in the early stage of investigation, that is, the objective materials are used to form a suggestive structure of facts, which is called probandum, that guides the election, formulation and evaluation of all relevant evidences. According to the objectivity thesis, which is based on the prima facie determination relation, objectivity is not an independent property, but a built-in standard of relevance. However, it has a unique meaning, that is, the function of objectivity is not only to make the probandum more plausible or less plausible, but also to build the probandum itself. Specifically, at the outset, an investigator needs to ask: if the case ever happened, what traces would it have left behind? Through investigations, he finds some traces which might be determined by the event. He marks them as objective evidences, then considers the information dots provided by these evidence and makes hypotheses, organizes these hypotheses into a framework, i.e. the probandum, then considers which materials make any part of the framework more plausible or less plausible. The investigator needs to collect as many of these materials as possible and marks them as relevant evidences. The two-stage marking activity defined above delimits the scope of the materials. After entering into the substantive proof stage, one could evaluate the weight and probative force of these materials and their combinations.

Keywords: objectivity of evidence, determination relation, probandum, relevance


Case Law Practice against the Background of Statutory Law in Modern China


LIU Xinjie


Abstract:Different from those in the Dali Court period, the case reports in the Republic of China period were compiled against the background of the successive promulgation of statutory codes. In the process of transition from law-making function to law interpretation function, the case law was still an important way for the highest judicial organ to exercise the power of law interpretation. Since the official Reports of Judgments were not compiled in a timely manner, a large number of non-official reports of cases appeared in the Republic of China period, and the contents of different versions of these reports were different because of the unclear definition of the cases. In order to facilitate the application by judges, most case reports extracted, dissembled and reorganized the digests of judgments in the cases, and compiled and systematized the digests of judgments of the Supreme Court cases in the style of the existing legal provisions, thereby forming a de facto system of supplementary legal rules. This method of case compilation increased the convenience of application of case law, but masked the judicial characteristics of precedents, and failed to manifest the practical advantages of precedents over statutory law. With the increasingly perfection of statutory codes, the decline of the influence of precedents in modern China became inevitable.

Keywords: Modern China, the Supreme Court, precedents, case reports