Chinese Journal of Law(2-2022)





The Social Logic and Chinese Model of Constitutional Function Transformation


LI Zhongxia


Abstract: The traditional function of constitution is to adjust the relationship between the state and the individual, while the relationship within civil society is mainly regulated by private law. The increasing social complexity leads to conflicts and divisions within the civil society, which need to be solved by state regulation. As a result, the function of the constitution is transformed. In modern complex society, Chinese and Western constitutions face similar tasks, that is, to realize the internal integration of state construction, social order and individual freedom, and to properly handle the three-dimensional relations among the state, society and the individual. Faced with the social crisis of liberalism and the development bottleneck of welfare states, the new state governance model has not been established in western society. China has experienced the evolution from idealized socialism to socialism with Chinese characteristics, and based on socialism, political integration, and socially oriented basic rights, established a unique constitutional order, thereby not only completing the triple task of national construction, social control and protection of the individual, but also contributing to the constitutional development in the world.

Keywords: the function of constitution, the paradigm of constitution, constitutional change, socialist constitution with Chinese characteristics, discourse system


Construction of Standardized Institution for Big Data Supervision by Disciplinary Inspection and Supervision Organs


YANG Jianjun


Abstract: The practical exploration of big data supervision by disciplinary inspection and supervision organs in many places has promoted the modernization of power supervision and restriction mechanisms, and give rise to questions about the legitimacy of big data supervision. The current practice of big data supervision lacks both standardized big data support and clear big data supervision criteria, and has problems of insufficient empowerment and limited competence at the institutional level. The improvement of the big data supervision system requires not only institutionally empowering disciplinary inspection and supervision organs to share big data, but also strengthening the restriction on the big data supervision power of disciplinary inspection and supervision organs, so as to resolve the conflicts between data rules and supervision rules, and between digital logic and legal professional logic. China should clarify the power of disciplinary inspection and supervision organs to share government big data and the rules for the acquirement and use of procuratorial, judicial, and public security data and legal supervision data, standardize the use of technical investigation means by disciplinary inspection and supervision organs, and improve the institution of data inquiry in non-case filing situations. When investigating cases involving suspected crimes, disciplinary inspection and supervision organs should collect, acquire and fix evidence in accordance with the rules of evidence in criminal procedure, so as to prevent such evidence from being excluded due to violation of legal procedures.

Keywords: disciplinary inspection and supervision, big data supervision, personal information, due process


Reflections on and Reconstruction of Reform-oriented Local Legislative Adaption Mechanism


WANG Jianxue


Abstract:The reform-oriented local legislative adaption mechanism has played an important pilot role in the past 40 years of reform and rule of law practice in China. With its continuous development, the tension between this mechanism and the principle of unity of national legal system may further intensify and needs to be effectively mitigated. Reform-oriented local legislative adaption is constrained by constitutional principles such as legal unity, equality and unitary system. As optimization requirements, constitutional principles are flexible in application. Therefore, only in the constitutional balance can the adaption mechanism be accurately evaluated. The proportionality principle is an important fulcrum in the reflections on and reconstruction of the adaption mechanism. The reform-oriented local legislative adaption mechanism should serve the reform purpose, and maintain the appropriateness, necessity and proportionality (in the narrow sense) in its means. In the new era of comprehensive law-based governance, the weight of legal unity must be increased in the balance. According to the requirement that “important reforms should be based on law”, put forward in Xi Jinping Thought on the Rule of Law, it’s necessary to impose necessary restrictions on local legislative adaption and coordinate the functions of various reform authorization mechanisms, so as to promote the positive interaction between reform and the rule of law.

Keywords: legal unity, legislative adaption, local legislation, proportionality principle, reform and opening-up


Application of the Amendment Function of the Principle of good Faith in Individual Cases


YU Fei


Abstract:In the “Huacheng Case”, the Supreme People's Court amended the rule of invalidity based on the principle of good faith and affirmed the validity of the contract when the application of the rule of invalidity would result in serious improper consequences in an individual case. The reasoning of the judgment has both highlights and deficiencies. Taking the legislative purpose as the boundary to make a distinction between purposive restriction and legal amendment, the court used the amendment function of the principle of good faith as the methodological tool in the "Huacheng Case". In this case, one party, by claiming that the contract was invalid on grounds of its own violation of law, abused the legal system of invalidity. In light of the facts of the case, especially the "special situation" in this case, that is, the construction contract had been basically fulfilled and the project had been accepted, and after balancing, the court came to the conclusion that the importance of the realization principle overrides the sum of the substantive and formal reasons for the application of the rule, and the rule should be amended in accordance with the principle of good faith. The thinking process of the amendment function of the principle of good faith can be sorted out as follows: deciding that strict application of rules will produce serious improper consequences; ascertaining the legislative purpose of the rule and demonstrating that the case cannot be properly dealt with within the legislative purpose; introducing a new factor of balance, namely the principle of good faith; balancing; and amending the rule to produce the proviso.

Keywords:principle of good faith, amendment function, construction contract,invalid balance


How the Limitation of Action Applies to the Right to Claim for Restitution


SUN Peng


Abstract:Rather than accepting acquisitive prescription, the Chinese Civil Codeprovides in Article 192 (2) for the limitation of claims for the return of unregistered chattel, which is of high commercial value and tradability. When the time period of limitation expires, the possessor can invoke the limitation to extinguish the ownership of the original right holder and acquire the ownership by preemption. In Article 192 (2), such elements of acquisitive prescription as blatant possession, possession on one’s own, and continuous possession are absorbed by the rules on the commencement, interruption and re-commencement after the completion of limitation, and the elements of peaceful possession of acquisitive prescription are incorporated into the special regulation of the right to claim for restitution of theft, but the element of good faith possession is reasonably abandoned. The last acquirer of possession benefits all periods of limitation when acquiring rights from his predecessor, but for the subsequent misappropriation, the limitation period should be recalculated independently.

Keywords:right to claim for restitution, limitation of action, acquisitive prescription, absorptive mode


The Discovery and the Value of Set-off Expectation


LOU Aihua


Abstract: Problems relating to deposit bankruptcy set-off can’t be properly solved if the set-off expectations of the parties are ignored. The right to deposit is characterized by uncertainty, as both the amount of the right and the occurrence of the right are uncertain. The giver of deposit may exercise set-off right in bankruptcy proceedings based on his expectation of set-off, and the effect of set-off occurs when the right to deposit becomes certain. The relationship between deposit and its guaranteed debt could be described as genetic synallagma. For the giver of deposit, his expectation of set-off is not affected by the assignment of creditor's right to guaranteed debt. The "same contract" stipulated in Article 549 (2) of the Chinese Civil Code should be interpreted on the basis of expectation of set-off. "The same contract set-off" aimed at protecting the debtor's expectation of set-off is different from "the same contract set-off" within the scope of judicial set-off in the traditional civil law system. It is not necessary to differentiate between "independent set-off" and "the same contract set-off" under the Chinese bankruptcy law. When the deposit guarantee is established in the form of sealed deposit and special account, and when the deposit recipient has the legal obligation to establish a special deposit account, the giver’s right to deposit is binding on the third party outside the deposit agreement. When the giver’s right to deposit is the right of withdrawal or common benefit right, the giver’s expectation of set-off is binding on the third party. For such set-off, there is no need to consider the issue of bankruptcy preference. The process of solving the problems relating to deposit bankruptcy set-off is also the process of exploring the value of expectation of set-off.

Keywords:set-off expectation, deposit, bankruptcy, set-off, the same contract, preferential payment


Classification and Judicial Review of Extra-judicial Expert Identifications


CAO Zhixun


Abstract:Extra-judicial expert identifications exist widely in China. Their evidence nature and the corresponding rules of judicial review deserve more attention. By focusing on Chinese problems and relying on comparative legal experience, a theory of extra-judicial expert identifications with Chinese characteristics can be discussed and constructed. There are different extra-judicial expert identifications involving complicated practical situations. Only those with fact-finding function can be regarded as extra-judicial expert identifications in the sense of evidence law, which could further be classified in different types of evidence. Considering the neutrality of expert identifications and mandatory requirement of evidence collection proceedings with the right of objection as its core, extra-judicial expert identifications should in principle not be regarded as judicial expert identifications. An extra-judicial expert identification could constitute the particulars of the case presented by the parties as factual allegations, but could not be regarded as the parties’ presentation as evidence. Nevertheless, the court should safeguard the parties’ right to be heard by presenting such particulars that have the function of denying the necessity of judicial expert identification or challenging judicial expert identification. Merely based on the principle of contractualisation within civil litigation, an extra-judicial expert identification could exceptionally be transformed into judicial expert identification based on the consensus of the parties. The parties are also free to agree that the conclusion of an extra-judicial expert identification mutually designated by both parties could be used as the basis for fact-finding. Based on the adjustment of the facts to be proved, an extra-judicial expert identification can also be used as documentary evidence that has the function of reporting the facts. In this regard, the facts to be proved are the opinions that the expert gives regarding the to-be-proven factual allegations, rather than the objective facts of the case themselves. Although judicial expert identification in continental legal systems differs from the expert witness in common law systems, an extra-judicial expert identification could constitute special expert witness, who can prove the facts which he has observed and perceived by himself during the process of preparing his professional identification.

Keywords: extra-judicial expert identification, judicial expert identification, parties’ presentation, reporting documentary evidence, witness for expert identification


Constructing a Theory of Copyright Protection of Folklore with Chinese Characteristics


HU Kaizhong


Abstract:There are misunderstandings in the theories of copyright protection of folklore in China. The theory of absolute protection imitates the theories of some developing countries and advocates comprehensive protection of folklore, which is in conflict with the theory of copyright and not suitable for China’s national conditions. The theory of negative copyright protection imitates the theories of some developed countries and denies the possibility of protecting folklore by copyright law. The rigidity of this theory is detrimental to protecting Chinese traditional culture. China should adopt the “relative protection theory”, namely, it should properly determine the copyright protection rules of folklore by following the basic principles of copyright, drawing on the relevant provisions of international conventions and taking into consideration of its own national conditions. China should reasonably define the connotation and denotation of folklore and not put all objects related to folklore into the scope of protection; define unknown persons who have created the folklore in the community as the authors and the original subjects of copyright, and the community from which the folklore comes as the successor of the property right according to customary law; distinguish between moral rights and property rights, reasonably deal with the relationship between copyright protection and public domain protection, and determine the proper period of copyright protection; rationally determine the copyright restriction rules of folklore in light of traditional folk habits and existing systems; and appropriately deal with the issue of copyright protection of folklore in other countries in accordance with the principle of national treatment.

Keywords:folklore, copyright, traditional use, customary use, prohibition of derogating use


Reflections on and Construction of the Framework of Corporate Opportunity Doctrine


YUAN Chonglin


Abstract: According to the corporate opportunity doctrine, it is corporate interest, rather than the claim of corporate property, that decides whether a business opportunity belongs to a corporation. Corporate interest begins to accumulate when the corporation undertakes an opportunity, the process of which can be divided into two stages: the discovering stage and the implementation stage. Throughout the process, the corporation may lose its interest in the opportunity as situations change and it is allowable for a director to exploit the opportunity when the corresponding conflict of interest vanishes. The optimum rules should reflect the variations. The discovering stage is the phase where the corporation has not invested any soft or hard resources into the opportunity, for which less strict rules should apply. At this stage, an opportunity within the line of business is presumed to belong to the corporation. After offering the opportunity to the corporation first with necessary disclosure, a director may take advantage of the opportunity if he gets approval of the corporation, or the opportunity has been rejected by the corporation, or the corporation is unable to utilize the opportunity, or the counterparty is unwilling to deal with the corporation beforehand. At the implementation stage, corporate interest in the opportunity becomes realistic due to the corporation’s investment, which makes strict and prophylactic rules essential. The director may pursue the opportunity only after full disclosure and receiving the corporation’s approval. This set of two-stage rules that include flexible characterization test and differentiated defenses would provide a desirable framework for the transplantation of corporate opportunity doctrine into Chinese corporate law.

Keywords:corporate opportunity, corporate interest, duty of loyalty, characterization test, grounds of defense


Establishment and Application of the Principle of Separation under the Regime of the Law against Unfair Competition


WU Jun


Abstract: The principle of separation established by Chinese Advertising Law has strong implications for competition law as well. The basic legal logic behind this principle lies in the acknowledgment of autonomous and independent editorial control exercised by content providers over the content offered. A necessary legal connection should therefore be established between editorial control and the principle of separation. Furthermore, editorial content and business communications can be identified and differentiated based on the editorial control concept. Meanwhile, it is also necessary to acknowledge the right of Internet users to take part in editorial control over their own online speeches, so that the principle of separation can be applied to information provided by all entities exercising editorial control, including Internet users and Internet information service providers, and disinformation can be effectively countered in accordance with law. A two-pronged approach should be adopted to the application of the principle of separation. For this purpose, the editorial control concept should be further acknowledged in the identification of any business communication, be it advertisement or commercial promotion. A general mechanism beyond the reach of the Advertising Law should thus be built to effectively identify and label all business communications. By this means, a system for comprehensive application of the principle of separation under the regime of the law against unfair competition can finally be established.

Keywords:editorial control, principle of separation, business communication, editorial content, disinformation


Criminal Law Protection of Publicly Disclosed Personal Information


WANG Huawei


Abstract:It is of great significance to reasonably determine the boundary of criminal liability for the processing of publicly disclosed personal information. The theory of second authorization fails to accurately understand the provision of judicial interpretation, resulting in a too broad range of penalty. It also could not explain why and how the initial obtaining and the re-offering of publicly disclosed personal information should be treated differently. Although the theory of conformity to purpose seems more logical, it is difficult to judge and grasp the conformity to purpose of disclosure of personal information in practice. In situations where the information has already been objectively disclosed, imposing requirement and obligation of conformity to purpose on the processor of the information will compress the space for information freedom. The standard of general accessibility adopted by the German Federal Data Protection Act balances the protection of personal information with the guarantee of information freedom. This standard is relatively objective, clear and easy to identify. In the position of protecting the right to personal information and based on the categorized analysis of publicly disclosed personal information, the degree of objective openness of information should be adopted as the criteria to uniformly determine the criminal liability for information processing. When examining the legality of the processing of publicly disclosed personal information, we should not only focus on the behavior of downstream information processing, but also reflect on the rationality of the criteria on the upstream disclosure of information.

Keywords: publicly disclosed personal information; second authorization; conformity to purpose; generally accessible; degree of objective openness



Technical Authentication of Electronic Evidence


XIE Dengke


Abstract:Electronic evidence is the king of evidence and authentication of electronic evidence is an important evidentiary issue in the information age. In practice, information technologies such as integrity check value, trusted time-stamp, digital signature, and block-chain record are applied by judicial authorities in China in the authentication of electronic evidence. This is the result of the inability of traditional authentication methods, such “chain of custody” and “uniqueness identification”, to effectively adapt themselves to the massive and virtual electronic evidence, as well as the institutional space created by the openness of the evidence authentication method system and the intrinsic demand created by the rapid development of online litigation. Technical authentication is not simply the application of information technologies to authentication of electronic evidence. It will bring about changes in the methods and rules of authentication of electronic evidence. Technical authentication methods and traditional authentication methods are not different in basic function and standard, but they differ greatly in internal mechanism, burden of proof and procedural protection system. It is necessary to establish the rules of technical authentication for electronic evidence on the basis of integrating existing evidence rules. Technical authentication has its theoretical boundaries of application. It is mainly applicable to electronic evidence, but not the storage medium of electronic evidence. It can be applied alternately with traditional authentication, but there is a developing trend towards its independent application. It could solve the problem of only the formal, but not the substantive, authenticity of electronic evidence. In addition, it’s necessary to protect equal participation and the right to confrontation of litigants in authenticating electronic evidence by technical methods.

Keywords: electronic evidence, authentication, integrity check, digital signature, block-chain record