Chinese Journal of Law(1-2022)





Historical Narratives of the Century-Old Chinese Legal Tradition




Abstract: Looking back on the development of modern Chinese legal science in the past century, the historical narrative of Chinese legal tradition has mainly been carried out in three contexts – evolution, ethno-nationalism, and the rule of law – and legal historians in different contexts have constructed different historical truths of the tradition in comparison with its counterparts. In the context of evolution, it is old and backward, and has thus lost the vitality of being able to construct the real-life order. As a result, it needs to be criticised and negated in its entirety in order for China to enter into an advanced legal civilisation; the construction of the Chinese legal tradition in the ethno-nationalistic context is unique for being systemic, continuous and ethno-nationalistic, the review and restatement of which will not only help strengthen national cultural self-confidence, but also constitute an important spiritual prerequisite for the construction of the "New Chinese Legal Tradition"; and the Chinese legal tradition as presented in the rule of law context manifests consanguinity-based ethical identity connotations of "fighting chaos" and "good law and just governance", revealing the impossibility for law in pre-modern societies to obtain an authoritative position in shaping and maintaining social order. The modernisation of legal system has been the shared goal of all the historical narratives as constructed in these different contexts, and the century-old academic history of the Chinese legal tradition has essentially been a spiritual history of pursuing the rule of law civilisation in modern China.

Keywords:Chinese legal tradition, legal systems, comparative law, modernisation of the legal system, the rule of law


The Space for Setting Administrative Penalties by Local Regulations


WANG Kewen


Abstract: Depending on the actual needs of local governance, it may be necessary and reasonable for local governments to set up "other administrative penalties" through standalone local legislation, or to supplement the local executive regulations with administrative penalties for illegal acts. Article 12 Paragraph 3 of the Administrative Penalty Law empowers local legislative organs to supplement administrative penalties through local executive legislation. In order to ensure that local legislative organs exercise this power reasonably, it is necessary to determine the scope of its application. To avoid excessive or over-complicated administrative penalties, local legislative organs should follow the principle "not to legislate unless necessary", and comprehensively consider the certainty, rationality, and fulfilability of the content of the obligations, identifiability of illegal acts, among various other factors, when legislating for supplementary administrative penalties. The permissible administrative penalties to be supplemented by local regulations should be limited to the types of administrative penalties stipulated in the primary legislation, and should not exceed the range of penalties stipulated in the primary legislation.

Keywords: local regulations, administrative punishment, legislative power, local affairs, central and local common affairs


The Systematic Construction of the Rule of Higher Fine Chosen


LIU Liantai


Abstract:The rule of application of higher fine chosen faces the conflict between the jurisdiction rule and the rule of higher administrative penalty, which can be partially solved by the comprehensive administrative law enforcement system. Outside the scope of the comprehensive administrative law enforcement system, different solutions need to be applied in light of different situations. Generally, the upper limit of the statutory penalty, rather than the decisive penalty, should be compared in identifying "the higher statutory penalty". The amount of the decisive penalty under the law of higher statutory penalty should not be less than the lower limit of the statutory penalty. A people's court may enter a judgment to modify an administrative penalty imposed as a result of incorrect application of the rule of higher fine chosen, but such modification should be bound by the prohibition of adverse alteration. In cases where a people's court enters a judgment requiring an administrative agency to take an administrative action anew, the administrative agency should prove that there is no bad faith when it aggregates the fine on the party, except in the situation where the people's court enters a judgment revoking the alleged administrative action and requiring the administrative agency to take an administrative action anew because of the overstepping of discretion by the administrative agency.

Keywords: administrative penalty, higher fine chosen, jurisdiction, administrative discretion, prohibition of adverse alteration


The Transformation from Collectively-owned Construction Land to Homestead Land




Abstract:According to the legal requirements and practical needs, this paper puts forward the reform proposition of the transformation between homestead land and collectively-owned construction land. The transformation from collectively-owned construction land to homestead land, as a reform measure aimed at breaking the institutional and ideological constraints, is of great policy value and practical significance. The transformation has its ethical and historical basis and the isomorphism of the two kinds of land in terms of functional attributes, the basis and structure of right has laid the institutional foundation for transformation. From the perspective of practical development, the transformation has the characteristics of indirectness, fuzziness and informality and can be divided into self-acting stage, strict-control stage, "three kinds of land" reform stage and a new round of reform stage. It contains institutional resources worthy of mining and utilization and capable of providing inspiration and reference for future development. To realize the transformation, we should adhere to the bottom line thinking, be people-oriented, ensure the economical and intensive use of collective construction land, respect grass-roots practice, highlight classified measures, pay attention to reform coordination, and clarify the main points of the system in terms of the subject, content and procedure of the transformation decision, so as to provide a theoretical scheme for realizing the reform goal of guaranteeing residence for each family of rural villagers.

Keywords:Land Administration Law, guaranteeing residence for each family of rural villagers, Homestead land; Collectively-owned construction land, transformation of land nature


Price Influence-based Theory on the Regulation of Futures Market Manipulation




Abstract:Under the price influence-based theory of regulation of futures market manipulation, manipulation is defined as the behavior of deliberately creating artificial price. The judgment of artificial price depends on the alternative price standard, that is, the comparison method of reference frame often used in law enforcement practice. This judgment method is not only difficult to prove, but also vulnerable to challenge in administrative penalty hearings or court debates, resulting in weak supervision of futures market manipulation. To change this situation, first of all, when judging whether manipulation causes artificial price, the focus should be on the forces and factors affecting market prices, rather than on whether the price caused by manipulation deviates from the level expected under the normal forces of supply and demand. Secondly, intent should be regarded as the core element of manipulation, and the analytical framework of price impact test should be used to make a comprehensive judgment supported by the actor's improper behavior and other direct or indirect evidences and supplemented by economic or empirical analysis. Finally, when the actor's manipulative behavior has not caused or could not be proven to have caused artificial price, the regulation of attempted manipulation should be introduced.

Keywords:price influence, artificial price, manipulative intent, manipulation, attempted manipulation


The Theoretical Basis and Structural Reform of the Recovery Execution System in China




Abstract: In China, the recovery execution system on the one hand deviates from thelegislative intention of civil procedure legislation, leading to such problems as the procedural structure of “integration of trial and enforcement” and the permission of instituting a separate action, and, on the other hand, originates in the traditional inquisitorial system and, as a result, needs a thorough reform both in basic theory and in institutional structure.Compared with other remedies in property enforcement, the recovery execution system has obvious advantages, such as being an economic, efficient and complete way of dispute resolution. Therefore, how to transform the operational mode of recovery execution from an inquisitorial one to an adversarial one to retain its function and advantages while at the same time satisfying need for the development of civil litigation in the new era has become a important topic to be discussed and a major question to be answered in the formulation of the Civil Enforcement Law. As for the construction of the concrete system, rules on the debt of unjustified enrichment should be taken as the basis of the system of recovery execution and defined as substantive litigation norms. The procedure of separating trial from enforcement should be adhered to and the permission for the institution of a separate action should be excluded; the system of recovery execution should be stipulated in the chapter on “trial procedure” in Civil Procedure Law, and a judgment-explaining procedure should be provided as well.

Keywords:recovery execution, theory of final adjustment, separation of trial and enforcement, unjustified enrichment


Study on Causal Errors and Countermeasures


LI Hong


Abstract:The existing theory on causality in criminal law is too broad in scope and, as a result, an actor may incur the responsibility of accomplished crime for some rare accidental results. The concept of error of causality attempts to deal with this phenomenon by shifting the problem which is difficult to solve at the objective illegal stage to the subjective responsibility stage. However, this kind of attempt not only fails to solve the problem that causality is wrongly identified and the special conditions of the victim become the main cause of the result, but also adds to the burden of liability judgment, resulting in the imbalance between judgment of illegality and judgment of responsibility. Therefore, dealing with the phenomenon of causality error at the objective level has become the mainstream method in various theories, among which the theory of realization of behavioral danger, which is similar in nature to the theory of objective attribution, becomes the first choice. However, the current doctrine of realization of behavioral danger has a strong flavor of causality and needs to be revised. Since the purpose of criminal causality is to limit the scope of punishment and the doctrine of realization of behavioral danger emphasizes the objectivity of the judgment of causality in criminal law, there is no need to take "abnormality" - a normative factor that can easily lead to subjectivism in the judgment of causality - as the basis for judgment. The degree of contribution or participation of an act confirmed by the judicial appraisal made on the basis of scientific knowledge and means is the sufficient basis for judging whether the realistic result can be evaluated as the realization of behavioral danger.

Keywords: causality error, conditional theory, equivalent causality theory, objective imputation, realization of behavioral danger


Rethinking on the Application Issues of the Criminal Duty Lawyer System


JIA Zhiqiang


Abstract:China’s current duty lawyer laws reflect the authorities’ inclination to suppress the rights of the defense party. Returning to the laws themselves, the state must appoint a duty lawyer to an accused who hasn’t been represented. By interpreting “making an appointment with a duty lawyer” in the Legal Aid Law as meaning that the accused must apply in order to obtain legal assistance, the authorities confuse an interview with a lawyer and a lawyer’s intervention in the case, thereby shifting the responsibility of the state to the individual and weakening the minimum safeguard for the right of the accused to legal assistance. Relevant judicial interpretations limit the duty lawyer's right to review files to "consulting". Based on the literary meaning of Article 37 of Legal Aid Law, the principle of equality of arms, etc., duty lawyer should also have the right to "extract" and "duplicate" the case files. Article 14 Paragraph 2 of the Measures for the Work on Legal Aid Duty Lawyers provides that, after confirming that the criminal suspect has voluntarily admitted guilt and accepted punishment, a duty lawyer must sign the recognizance despite his objection to the sentencing recommendation. This is a public declaration of the "witness" function of duty lawyer, which contradicts the legislative intent of Article 201 of the Criminal Procedure Law and the reform requirement of substantive participation by lawyers in negotiations. Duty lawyer should have the right to refuse to sign the recognizance. Substantive participation should be the basic direction of current reform of the duty lawyer system.

Keywords:duty lawyer, intervention in a case, right to review files, leniency to those who admit their guilt and accept punishments


The Evolution of the Crime of Theft before Tang Dynasty


ZHU Teng


Abstract: Although called by different names, theft has always been an important crime in ancient and modern criminal laws. In modern times, people are accustomed to understand the crime of theft (dao(盗)) in traditional Chinese law as property crime. However, when the Chinese characters were invented, the word daogenerally meant “unjust” or “wrong”. It was not until the Warring State Period that dao became a word more clearly referring to an act of property infringement, but even then its meaning of “unjust” or “wrong” didn’t completely disappear. This diversity of the ordinary meaning of dao influenced the design of the crime of theft in the laws from Qin in the Warring State Period to Han dynasty. As a result, there was a certain degree of complexity in the meaning of dao: on the one hand, it mainly referred the illegal acquisition of property; on the other hand, it retained the possibility of transcending the conception of property crime. In the Wei, Jin, Southern and Northern Dynasties, although legislators tried to differentiate or purify the crime of theft, the ordinary meaning of the word "dao" still had multiple levels, and the complexity of the meaning of the crime of theft as a legal term could not be completely changed and ultimately preserved in the laws of Tang Dynasty.

Keywords:the crime of theft, punishment according to the worth of the stolen goods, punish as the crime of theft, group theft, taking things not belonging to oneself


The International IPR Gaming and the Value Orientation of the Chinese Discourse


LV Bingbin


Abstract: Against the background of international gaming, the protection of intellectual property rights (IPRs) is showing a trend towards continuous strengthening, in which the U.S. plays a leading and promoting role. In the global governance of IPRs, the U.S. presents a value tendency to blindly strengthen the protection of rights. In fact, the U.S. has a balance mechanism for strengthening the protection of IPRs in its domestic laws, but it exports enhanced protection rules unilaterally to the outside world. The intellectual property system that blindly strengthens protection will be biased. In the international IPRs gaming and dialogue, China needs to put forward its own discourse and discourse system, the premise of which is to clarify the value orientation of the discourse. Compared with historical and cultural orientations, the value orientation path of discourse structure has incomparable superiority. In the international gaming, China should uphold and promote the dual value orientation of intellectual property law, which conforms to the basic principles of intellectual property law, embodies the common values of the world, and plays the core role in correcting deviations. Whether facing strengthened protection rules imposed by foreign countries or participating in international negotiations, China should always uphold and carry forward this value orientation.

Keywords:intellectual property, international gaming, discourse system, drug patent term compensation, reasonable use


Categorized Application and Risk Avoidance of the Intellectual Property Punitive Damages


LIU Yinliang


Abstract:With the key function of deterring future infringements by punishing the past ones, the punitive damages system has three elements as its preconditions, i.e., the certainty of the right to be protected, the feasibility of judgment of infringement, and, the non-excessiveness of deterrent effects. Correspondingly, the uncertainty of intellectual property (IP) rights has led to the fundamental conflicts between the IP system and punitive damages, making is difficult to adopt fully the punitive damages into the IP system. Based on the punitive damages system and the moral accountability of the IP infringements, the IP punitive damages can be applied in a categorized way: while punitive damages may be applied to malicious IP infringements, they could hardly be applied to general IP infringements. Under the international IP rules, it is necessary to protect IP rights fairly and to reserve reasonable space for fair competition at the same time. Only a fair balance between IP rights and competition can produce the best innovation incentive effects. Punitive damages may cause excessive deterrence, break the balance between IP rights and competition, and hinder the realization of the primary objective of IP law. Categorized application of IP punitive damages is conducive to mitigating or avoiding the institutional risks of IP punitive damages and should be dealt with prudently.

Keywords: intellectual property, punitive damages, malicious infringement, categorized application, innovation incentives, competition



The Choice and Modernization of the Rules on Strengthening Authors’ Position in Copyright Contracts




Abstract:The absence of both copyright contract rules and intermediary organizations required for collective bargaining has led to a situation where Chinese authors have no law to rely on when faced with many unfair treatments in the field of copyright contract. Meanwhile, the institutional arrangements for the extraterritorial protection of the author’s rights in comparative law have taken different paths due to the differences in strength of relevant industries in different countries. In the absence of the support of basic local rules, the solution more in conformity with the characteristics of the industry in China is firstly to recalibrate the protection scope of authors' rights on the basis of comparative law experience, and avoid direct protection of authors' profits by ex post rules, but instead increase the author's capacity for autonomy through ex ante rules and, secondly, to apply legal dogmatics as the main method to achieve the judicial explanation on the basis of the contract chapter in the Copyright Law and the Book of Contract in the Civil Code. The types of rights licensed or transferred in the contract chapter of the Copyright Law are regarded as the "necessary points" for the establishment of the contract, and the contract clauses are required to clearly list the scope of use, purpose, time limit and royalty standard of each right. Meanwhile, based on the differences between onerous and gratuitous contracts, general rules of contract termination should be applied by analogy to make sure that authors are not unreasonable restricted by continuous contract.

Keywords: copyright contract, author’s rights, contract alteration, contract termination



A Study on the Relationship Between Copyright Protection and Creation and Cultural Development




Abstract:To treat the function of the copyright regime as encouraging creation is an oversimplification of the reality. From the perspective of an individual creator, authorship is motivated by multiple factors, and copyright is only a relatively marginal one among them. By contrast, the more important role played by copyright is to ensure the large-scale commodification of knowledge in the industrial field where media is scarce and information transmission is depending on value transmission. In such a domain, copyright regime in history had greatly increased the stock and expanded the scope of transmission of social knowledge and strengthened the position of the author as a profession. After entering into the information age, media becomes abundant and the means of communication have been decentralized to the commons, making the “We-Media” an important form of dialogue and communication between netizens. As a result, the relationship between copyright and cultural prosperity needs further typified analysis under the new circumstance. Anyway, a relatively tolerant environment for cultural development, a large-scale market powered by industrial policies, and the free flow of low-cost knowledge elements, coupled with government’s support and anti-trust intervention, are the only ways to further realize cultural prosperity in today’s China.

Keywords: copyright, media scarcity, the culture Industry, information society, anti-trust of intellectual property