Chinese Journal of Law(6-2021)





Substantive Constitutional Interpretation as a Fact of Law


MO Jihong


Abstract: There are different understandings in the constitutional law circle as to whether there are acts or results of constitutional interpretation with legal binding force in China. Some scholars believe that China has produced substantive constitutional interpretation documents with legal binding force, but there is no academic consensus on the judgment methods and standards of substantive constitutional interpretation. Whether constitutional interpretation has become a constitutional implementation system with the unity of substance and procedure law and legal binding force still needs to be carefully analyzed from the perspective of jurisprudence. From the point of view of the characteristics of legal facts of constitutional interpretation, the constitution interpretation system established by Article 67 of China's current Constitution contains the substantive elements of constitutional interpretation in the sense of complete legal facts and plays a substantial function of constitutional interpretation through legally binding legal document. However, it is incomplete in terms of procedural requirements. In order to improve the constitutional interpretation system in the future, it is necessary to comprehensively and systematically integrate all kinds of constitutional interpretation documents with legal binding force, promulgate official decrees of constitutional interpretation through unified and standardized procedure, and construct a complete constitutional interpretation system in the sense of legal fact with scientific judgment method, clear determination standard and strict structure system.

Keywords:constitutional interpretation, implementation of the constitution, legal interpretation, substantive constitutional interpretation, procedural law of constitutional interpretation


Formation and Perfection of the Intra-Party Regulation System




Abstract: Intra-Party regulations are derived from Party documents and belong to the socialist system of rule of law with Chinese characteristics. The logic of the Party's institutional construction and the logic of legal system construction jointly promote the formation of the intra-Party regulation system. The Party's institutional construction determines the basic functions and institutional content and affects the structural style and normative form of the intra-Party regulation system, while the logic of the legal system construction shapes the structural style and normative form and serves the basic functions and institutional content of the intra-Party regulation system. At present, the framework of the intra-Party regulation system has already taken form, which can be understood from the two dimensions of the vertical strata system and the horizontal branch classification. In order to perfect the intra-Party regulation system, China should further clarify the boundaries between intra-Party regulations and normative documents, and improve the formulation, implementation and guarantee systems of intra-Party regulations, resolve regulatory conflicts and adjust the branch classification within the intra-Party regulation system, strengthen the institutional construction of the regulations on the Party's leadership, further clarify the adjustment boundaries between intra-Party regulations and state laws, and realize the two-way linkage and coordination between the two.

Keywords: intra-Party regulation system, the Party's institutional construction, governing the Party by regulations, the state law system


Conflicts of Constitutional Rights and Their Solutions




Abstract:Conflicts of constitutional rights are a sub-type of conflict of rights. Conflicts of civil rights only occurs between private individuals, while conflicts of constitutional rights occur in the triple structure of "private individual-the state-private individual". In the settlement of conflicts of constitutional rights, the third-party validity of constitutional rights should not be resorted to, and the state’s performance of its obligations should be mainly replied on. The resolution of conflicts of constitutional rights requires a systematic approach: for potential conflicts of constitutional rights, their actual occurrence should be avoided as much as possible through procedure design; after conflicts of constitutional rights have occurred, the best solution should be found through practical reconciliation to avoid the concession by any party on his own fundamental rights and realize to the greatest extent the constitutional rights of both parties; and if there is no optimal solution, an acceptable solution should be determined through the application of the principle of right rank and the principle of proportionality, and then excessive prohibition review and insufficient prohibition review should be adopted to ensure that the solution is constitutional.

Keywords: constitutional rights, conflict of rights, state's obligation to protect constitutional rights, practical reconciliation, proportionality


The Establishment, Status and Framework of the Fundamental Administrative Law Code


YANG Weidong


Abstract:A feasible path of codification of China’s administrative law is to carry out the substantive codification of general administrative law and substantive or formal codification of special administrative laws in light of their specific conditions, thereby forming the “1+S+F” structure of administrative law codification. In this structure, the fundamental administrative law code plays the chief and leading role. It should be a substantive code that covers main aspects of general administrative law, integrates substantive and procedural provisions, embodies the level of development of administrative law in China, and offers the “Chinese solution” to the codification of law in the world, rather than a set of general rules of administrative law or general provisions of administrative law, a code of administrative procedure, or a compilation of administrative law. In the construction of the system of administrative law code, China should take the regulation of administrative power as the theme to develop a framework that consists of six books: general provisions, administrative organs, administrative activities, administrative procedure and information disclosure, administrative supervision, and administrative remedies.

Keywords:administrative law code, codification, general administrative law, special administrative laws, administrative procedure law


Application of the Principle of Data Minimization to the Processing of Personal Information by Online Platforms


WU Teng


Abstract:The principle of data minimization consists of three sub-principles: relevance, minimization and proportionality. The mainstream attitude adopted in the application of this principle is merely recognizing online platforms’ accessory purpose of processing personal information, which is the realization of specific business functions, while denying its main purpose, which is to provide targeted intermediation services. There is a great tension between the sub-principle of minimization and the realization of the main purpose of online platforms, which can hardly be relieved by either the norms on data self-determination or the norms on anonymization. Given the fact that the principle of data minimization should be applied only if the processing of personal information has a negative impact on data subjects, the conditions of applying this principle are not satisfied as long as online platforms act for the data subjects’ best interests. With the help of supplementary interpretation of contract, online platforms should be imposed duties of loyalty toward data subjects when they perform main contractual obligations, i.e., they should act for the maximization of consumers’ expected interests in the promoted transactions. As to platforms that fulfill duties of loyalty, they may process non-sensitive or low-sensitive personal information within a reasonably necessary scope, if the comprehensive impact of processing on data subjects’ interests is positive, and the negative impact can be limited to a certain extent.

Keywords:protection of personal information, the principle of data minimization, online platforms, duties of loyalty, supplementary interpretation of contract


System Orientation and Rule Reconstruction of Safety Maintenance Obligation in Insurance Law


MA Ning


Abstract: In addition to the basic attribute of damage-filling contracts, insurance also has the additional attribute of risk regulation tool, which requires integrating the idea of risk governance into the insurance contract law system, and improving the safety maintenance obligation as the core technique of risk governance. Legislation should define the content boundaries and expression methods of safety maintenance obligations, and introduce elements of content importance and clarity. The former is sufficient to influence the insurer’s decision on whether to underwrite or increase the insurance premium, and the latter is sufficient to determine the specific risk (change) type and scope. When the insured violates the safety maintenance obligation and the insurance accident has not occurred, the insurer has the right to request an increase in premiums or terminate the contract, but the preconditions of urging the insured to perform the safety maintenance obligations must be met, and meanwhile, there is no need to set the preconditions of subjective and causal factors for the exercise of the insurer's right to terminate the contract. If the insured accident has occurred, the exemption of insurance liability should be strictly limited, the preconditions of subjective elements and causal elements, including intention and gross negligence, should be set, and proportional liability should be introduced in the case of gross negligence.

Keywords:risk governance, safety maintenance obligation, termination of contract, insurance liability, proportional liability


The Boundary of Discretion in Sentencing


WU Yuhao


Abstract:In the process of sentencing regulation reform, one issue that has drawn the attention of both academic and practical circles is how to acknowledge judicial discretion while keeping sentencing deviations within a legitimate limit. A feasible solution is to compare a judge’s individual sentencing decision with the collective experience of judges and to adopt an affirmative and respectful attitude towards the discretion of judges whose decisions are close to the collective experience while identifying and correcting the decisions of judges that significantly deviate from the collective experience. This paper is an empirical study of nearly 50,000 criminal cases adjudicated in Beijing courts, covering larceny, fraud, robbery, intentional injury, and traffic crimes. Firstly, the results of the multilevel model show that the variable "who hears and decides the case" can explain 5%-11% of the sentencing disparity. Secondly, using a specific statistical model, this study calculates the sentencing deviation of each judge, illustrating that most judges’ sentencing decisions fluctuate around the collective experience, and only a small portion of judges’ sentencing decisions deviate significantly from the collective experience and, therefore, need to be corrected. Finally, after comparing sentencing deviations across different types of criminal cases, we find out that a small number of judges have sentencing deviations in multiple crimes. These judges should become the targets of discretionary regulation. This discretionary regulation scheme demonstrates the application of big data and algorithms in sentencing reforms and has the prospect of being popularized under the premise of introducing the concept of “due process for algorithms”.

Keywords: sentencing regulation reform, judicial discretion, collective experience, deviation identification


Research on Blockchain Evidence


LIU Pinxin


Abstract:Blockchain technology has led to the era phenomenon of different network data entering some special chains as evidence. Blockchain evidence refers to all evidentiary materials based on blockchain technology, which can be divided into blockchain-generated evidence, blockchain-stored evidence and blockchain-verified evidence. Based on this cutting-edge technology, blockchain evidence has unique values in clarifying the facts of complex cases, analyzing large amounts of heterogeneous digital evidence and promoting the development of intelligent judicial system. In adopting related legal rules, China should adopt a rational attitude towards the blockchain evidence, adhere to the principles of non-discriminatory treatment and deferential classification, and focus on the issue of authenticity. Technological characteristics such as hash verification, time locking and node verification have greatly enhanced the veracity of blockchain evidence, which is embodied in two golden principles: guaranteeing the verification of data after entering the chain and optimizing the verification of the data before entering the chain. Based on the above two principles and the existing authenticity rules of electronic evidence, China should review the legislative defects in the Rules of Online Litigation of People's Courts, explore and draw on overseas experiences, and make rules on the judicial cognition and presumption of the veracity of blockchain evidence.

Keywords: blockchain, blockchain record, blockchain evidence, electronic evidence, rules of evidence


The Deep Dialectical Structure of Contests over Global Intellectual Property Governance




Abstract: Global intellectual property governance is an area that comparative law and private law studies are unable to thoroughly illuminate. It is not only a battlefield of contesting economic powers, but also an acute reflection of ideas, framing and their mobilization observed in sociology and international relations. China can contribute to global intellectual property governance in a non-Western, dialectical and constructive way only by unfolding scrupulously the inherent mechanism of conflicts, reforms and lawmaking in the current governance domain. This article offers a rigorous and detailed discussion of the methodologies, dialectical structures and examples of the abovementioned mechanism, followed by a proposal of paradigms and approaches for China to find a way out of the fundamental dialectical predicaments faced by global intellectual property governance through the establishment of its own body of knowledge. Such an approach to improving through Chinese culture the deep dialectical structure of global governance can help to reshape international legal norms. It responds to the universal appeal for cultural diversity as well as the expectation of overseas mainstream schools of intellectual property for “new approaches” to contract the Western “unitary axis”. In the current global climate, it may become the greatest common divisor for industrial innovation and balanced global development that can invalidate the “legitimacy” of US global knowledge hegemony and create an international resonance on sincere and impartial justifications for righteousness, proper interests and coexistence of all.

Keywords:global intellectual property governance, the knowledge commons, framing, Chinese Paradigm, Chinese Approach


Reshaping the Fair Use System in Copyright Law in the AI Era


LIN Xiuqin


Abstract: Artificial intelligence or “machine learning” poses a serious challenge to the boundary of fair use due to its massive use of data, including copyrighted works. In order to mitigate the concerns about massive copyright infringement and promote the development of data mining and AI learning, many countries have made legislative responses to this challenge. For example, the European Union enacts a directive to add an express “text and data mining exception (TDM)”. Although China has adopted the “three-step test” in its newly-revised Copyright Law, this test provides only some “semi-closed” limitations and exceptions, rather than the necessary legal mechanism for accommodating the massive “learning” and use of copyrighted works by AI. This article argues from the holistic perspective of structuralism that the traditional copyright law, consisting of broad reproduction rights and narrow “limitations and exceptions”, cannot meet the need for massive use of copyrighted works in the AI era. In order to promote AI learning and technological innovation, the current “limitations and exceptions” system should be expanded and reshaped. Firstly, the term “fair use" should be adopted to replace “limitations and exceptions”. Secondly, with the rise of AI creation and the gradual fading of the role of human authors, the relationship between copyright protection and fair use should be reconstructed, and the status of the fair use system should be improved. Thirdly, the massive use copyrighted works for AI learning and creation should be covered in the scope of fair use. Only when a “output” work generated by AI will it fall under the control of copyright holders only if it is substantially similar to the original work. Finally, it is advisable for China to adopt an elastic and flexible “fair use” legislative model in its copyright law.

Keywords:artificial intelligence, reproduction right, data mining, fair use, structuralism


“No Alteration of Distinctive Features” in the Use of Registered Trademark


FU Jicun


Abstract:The imprecise semantics of the expression “no alteration of distinctive features” has led to the uncertainty in the determination of the use of registered trademark, which in turn affects the anticipation relating to the confirmation, maintenance and protection of the exclusive right to the use of trademark and encourages market opportunism. In fact, the legal concept contained in “no alteration of distinctive features” indicates that, from the point of view of rational and specific consumers, an actually used trademark logo should have the same identification effect as a registered trademark. This legal concept corresponds to the conditions of what should be judged as “no alteration of distinctive features” or their combinations found through the qualitative comparative analysis of 405 relevant judicial decisions. The benchmark types of determination of “no alteration of distinctive features” include using registered trademarks as a combination, adding or deleting related elements, changing decorative elements, replacing fonts and character patterns, changing the arrangement of elements or any combination thereof and any of them must clearly refer to the registered trademark without causing confusion among consumers. Right confirmation judgement also recognizes the simultaneous use of a registered trademark and an altered trademark logo. In forming the judgment of “no alteration of distinctive features”, the competition necessity test, the stable correspondence test and the expression need test should be used to define public related elements, alternative related elements and decorative elements, respectively. In the judgment of the same identification effect, factors such as explicit reference, consumer cognitive habits and trademark law order should be evaluated.

Keywords: use of registered trademark, “no alteration of distinctive features”, communication model of trademark, typological method