CHINESE JOURNAL OF LAW(No.2,2009)

Intellectual Property Right System:

Under the Background of International Change and Chinese Development…Wu Handong (3)

Dominating Right Arising From Obligatory Relationship……………………………Jin Keke (19)

Reconstructing Dual Liability Imputation System of Tort Law:

Risk Domain Theory…………………………………………………………Ye Jinqiang (38)

Abatement of Nuisance and Compensation for Damage……………………Wang Hongliang (57)

A Review on Otherwise-Provisions of Bylaw………………………………………Qian Yulin (71)

An Empirical Study on the Status Quo of China's Arbitration Institutions………Chen Fuyong (81)

Sentencing Benchmark of Common Crimes……………………………………Wang Lirong (98)

Indigenous Construction of Chinese Criminal Procedure Model………………Zuo Weimin (107)

Self-Restriction and Exterior Supervision

of Procuratorate's Investigation Power……………………………………Li Jianming (121)

Domestication of Law and Internal-Generated Rule……………………………Zhi Zhenfeng (135)

Specific Administrative Act Violating Legal Process:

Standard and Effect……………………………………………………Zhang Jiansheng (150)

On the Issue of Armed Forces

in the Comprehensive Convention against Terrorism of the United Nations…Huang Yao (166)

An Exploration on the Legal System of Harbin in 1946-1948…………Sun Guangyan, etc. (183)

A Written Symposium: Propelling the Study on Leal History…………………………………(198)

Abstract: Economic globalization and knowledge revolution have great influence upon the system of intellectual property right (IPR). From an international view, IPR has become a set of game rules with universal binding force. In the meantime, the systematization and codification of IPR have also shown some indications. In the complicated international background, the construction of IPR system of modern countries has vivid characteristics of this time, that is, not only with the strategic policy consideration of facilitating economic and social development, but also with the rational arrangement of pursuing the systematization of legal norms.

From the view of the whole world, the modernization and internationalization of IPR are full harmonized, which means that the innovations of IPR system coping with new technologies are usually widely accepted by many countries through the mechanism of international conventions. To cope with such development, modern countries have set up domestic strategies of IPR as their policy selection. And to realize their strategic aim, modern countries also take codification of IPR as the rational pursuit of legislation model. In one word, the different aspects of the development and change of IPR system are not isolated or separated, but relate to and act on each other under the international and domestic background.

For the present, Chinese IPR enterprise lies in a new and important historic period. As to the construction of IPR system, China has entered into a strategic positive period. To satisfy the request of domestic economic and social development, China should reinforce its legislation work, so as to provide the institutional foundation for the construction of an innovation-typed country. As to the operation of IPR system, China has entered into a pivotal development period. IPR Law is a component part of public policy. Whether IPR Law can fully exert its function of promoting knowledge innovation and propelling social development or not lies not only on the soundness of legislation, but also on the real effect of law application. We can believe that, standing on the indigenous actuality and future needs, Chinese IPR system should follow international change and time's trend, and step on the way of internationalization, modernization, strategy and codification.

Key Words: intellectual property right system, internationalization, modernization, strategy, codification

Abstract: Dominating right arising from an obligatory relationship is a particular kind of rights arising from a lasting obligatory relationship, and is a type of "the reinforcement of the obligatory rights" (die Verdinglichung obligatorischer Rechte). It is really not true, as it was said usually, that an obligatory relationship can generate only obligatory rights or personal claims. As this article will set forth, the dominating right arising from an obligatory relationship has also some special characteristics which are typical for property rights (Sachenrechte).

Property rights have two special characteristics: the domination (Herrschschaft) and the absoluteness (Absolutheit). After delivering the thing or surrendering the thing for use, the dominator in a lasting obligatory relationship can realize his intention unilaterally upon the thing and need not the cooperation of the obligator. Moreover, the possessor can also protect his possession or his right of possession from anyone's infringement through certain legal remedies. Therefore, the dominating right arising from an obligatory relationship has also the special characteristics of domination and absoluteness to some extent, and has also some effects of property rights.

Therefore, a lasting obligatory relationship can be divided into two phases. Before delivering the thing or surrendering the thing for use, there exist only obligatory rights, but after the so-said delivering or surrendering, there can exist both obligatory and dominating rights in such legal relationship. In contrast to the first phase, the second phase has two special qualities as follows: on one hand, a lasting obligatory relationship has still the classical effects of obligation, such as personal claims; on the other hand, its dominating right may have the effect against a third party. That is to say, such legal relationship can exist between obligee and a third person, and has broken through the traditional scope of obligatory relationships which can only bind obligator and obligee.

The dominating right arising from an obligatory relationship is an unusual phenomenon in the civil law system. Although originated from an obligatory relationship, it is protected by the law to some extent as a property right. But it is also should be remembered that, the dominating right arising from an obligatory relationship is still bound by the obligatory relationship and is very different from the property right.

Key Words: dominating right arising from obligatory relationship, the special nature of property right (Dinglichkeit), absoluteness (Absolutheit), right of possession

Abstract: The traditional liability imputation system of tort law is based on fault liability and danger liability, in which danger liability is considered as an exception to fault liability. The traditional fault liability principle consists of two facets, that is "Where there is fault, there is liability" and "No fault, no liability". However, as the rising of intercourse safety responsibility (Verkehrspflichten), the evolution of fault liability and the expansion of liability without fault, the tort law seems to fall into a state of chaos. Behind the chaotic state, the evolution of liability imputation system of tort law demonstrates that the principle of "No fault, no liability" has been gradually replaced by the rising of risk liability.

This fundamental change means that the modern tort law no longer adopts the principle of "casum sentit dominus", but distributes the liability of damage without fault between the parties by deciding who should carry on the risk. The elements of deciding the risk domains includes acquisition of interest, initializing and maintaining risk, reliance, possibility of damage distribution, possibility of self-protection, and so on. In addition, the theory of risk domain has the ability to establish an open and dynamic liability distribution system. In individual cases, it can reach the balance among different elements of considerations.

The new dual liability imputation system of modern tort law should consist of fault liability and risk liability, and the risk liability can replace all the liability without fault including the danger liability (Gef?hrdungshaftung), liability without fault in intercourse safety responsibility（Verkehrspflichten） and equitable liability. The legislation of risk liability can adopt the mode of combining general provisions with specific types of risk liability.

Key Words: fault liability，risk liability, liability imputation system，risk domain theory

Abstract：The Property Law of China provides for the first time expressly the denied or defensive claim right (negatorische Ansprüche), and recognizes that, it is the effect of the property right and has the function of prevention. At the same time, according to the General Rules of Civil Law of China, there is also preventive claim right in tort law, which is in line with the defensive claim right in Germany. In German law system, the creation of the defensive claim right in tort law brings about the general trend of the defensive claim right. On the ground of §1004 of the German Civil Code (BGB) as well as other relevant rules, some scholars have abstracted the basic principles of preventive right protection (vorbeugender Rechtsschutz). That is to say, rights should be protected not only when they have been damaged, but also when they are being or to be damaged.

The result of such development is that, whether the actor has fault or not can not be a distinction standard of the defensive claim right in property law and obligation law. The key point of distinction between them is their different legal effects, i.e., whether the actor should abate nuisance or should compensate damages. In Germany, it's generally held that, nuisance is some sustained obstacle which one should be responsible for, and damage is the non-sustained obstacle. There are also different opinions about this problem, and the author of this paper approves the theory of risk allocation. According to this theory, the cost to remove the nuisance should generally be assigned to person who has caused such nuisance. A person should be responsible for the nuisance if his act or property has caused the nuisance. As far as the element of illegality is concerned, there are significant differences of the defensive claim right in property law and tort law.

Compared to the damage compensation law system, the nuisance abatement law has not been systematic yet. So the defensive claim right in property law can refer to certain rules of the obligation law, e.g. the rules of the common fault, and so on. The idea of preventive right protection and the distinction between compensation for damage and abatement of nuisance, however, are very significant for the maintenance of self-government system of property right, as well as for the establishment of tort law system.

Key words: property claim right, the denied claim right, abatement of nuisance, prevention of nuisance, compensation for damage

Abstract: The articles of "…unless it is otherwise provided by the bylaw" were introduced into the Company Law of China in 2005. According to such articles, legal norms of the Company Law, such as how to exercise shareholders' voting rights in a limited liability company, how to distribute profits in a joint stock company limited, etc., can be opt out by the bylaw. These articles changed the nature of relevant legal norms from mandatory provisions to random ones.

The proposition that companies should be free to opt out legal norms has been put forward by some important and influential scholars. The advocates of this opinion start from the view that the company is a contractual creature, a "nexus of contracts". But there is a different legal basis between a bylaw amendment and an initial bylaw. An initial bylaw can be viewed as a contract binding all the shareholders, but a bylaw amendment, which does not require unanimous consent of all the shareholders, cannot be viewed as a contract (except that all the shareholders vote for the amendment). Consequently, one cannot rely directly on the contract mechanism to uphold the otherwise-provisions of a bylaw amendment.

The company law of 2005 ignored the above-mentioned differences. In practice, minority shareholders' fundamental rights are often limited or deprived by amendments of bylaw. Legislation and judicature should pay attention to such problems. Shareholders should not submit to otherwise-provisions of a bylaw amendment unless their own consent. Furthermore, the otherwise-provision itself should be effective before it can be applied. It should follow the principle of equality between shareholders, and so on.

Key Words: bylaw of company, an initial bylaw, a bylaw amendment, autonomy of will, the principle of equality between shareholders

Abstract: The orientation of the nature of arbitration institutions is one of the key problems in discussing the revision of arbitration law and the reform of arbitration institutions, which is impossible to be resolved properly without an accurate knowledge of the status quo of arbitration institutions. Based on the data collected through two national surveys carried out by Beijing Arbitration Commission, this article tries to draw a complete and nuanced picture of the status quo of China's arbitration institutions.

To particularize it, the data shows that the natures of the arbitration institutions in practice are diverse and there is a comparatively high percentage of arbitration commissions which are treated as institutions with quasi-governmental nature. There is also certain percentage of arbitration commissions with most of its commissioners held concurrently by local government officials rather than professionals in legal or commercial field, or with the head of the secretariat held concurrently by local government officials and the staff offered with tenure like civil servant. Meanwhile, about half of the arbitration institutions depend on fiscal appropriation for their full or part of treasury. In addition, while nearly half of the arbitration institutions prefer to promote arbitration by administrative means, there is still a large sum of arbitration institutions with very low case-load. As to the case handling, some arbitration institutions use its own personnel as arbitrators.

All the aforementioned governmental features existing in the nature, personnel, financing and operation of arbitration institutions could be attributed to some direct factors. But according to the framework of state-civil society, the fundamental reason that accounts for the different features among arbitration institutions is the regional difference in the reconstruction of structure relationship between the state and the civil society. To reduce the governmental features unreasonably attaching to the arbitration institutions, we should take advantage of the force both from the state and the civil society so as to accelerate the adjusting of the relationship of the state and the civil society in the field of arbitration and facilitate the transformation of arbitration institutions. The transforming process of arbitration institutions will inevitably lead to the redistribution of interest among related parties which calls for the stance of favoring arbitration users and benefiting the public interest.

Key Words: arbitration institutions, governmental feature, state, civil society

Abstract: Establishing the sentencing benchmark is to clarify the process and common rules of sentence. According to our sentencing theory, the logical initial point to discuss sentencing process is the constitutional facts. But in fact, the theoretical model to determine the nature of an offense could not provide the concrete process of sentence. The norm facts corresponding the norm sentence should be such verities which could reflect the specific mean and infringing extent of the crime. It will be in accordance with the cognitive laws of "from objectivity to subjectivity" and "from phenomena to essence" to take the norm facts as the objective fundamental of sentence.

The establishment of the sentencing benchmark of a specific crime should be based on the criminal judicial interpretation made by Supreme People's Court and the type experiences in the sentencing guidance of local people's courts. They are the main way of centralizing and typing the sentencing experiences. Without such original forms of experiences, only confusion can be achieved in exploring the norm facts and sentencing benchmark. Where they are not enough to guide the specific sentence, the conclusions and reasons made by judges in instructive cases should be intensively considered, from which one should find technique rules of sentence which can withstand the rational inquiry.

It is unrealistic and unnecessary to establish the sentencing benchmark and corresponding norm facts of each of the more than 400 accusations in the Criminal Law and its amendments, since common crimes are more frequent in judicial trial, and it is less difficult to sum up their sentencing experiences and clear up their sentencing process.

Key Words: common crimes, norm facts, sentencing benchmark

Abstract: At present，the orientation of Chinese criminal procedure model can not comprehensively summarize the form of Chinese criminal procedure, and can not meet the realistic needs of Chinese criminal procedure system reform either. Chinese criminal procedure model can be more clearly analyzed from both negative and positive aspects based upon value-free position. From the negative aspect, the current Chinese criminal procedure model is not modern inquisitorial model, has no adversary factors in essence and is not so-called composite or inquisitorial model too. From the positive aspect, the current Chinese criminal procedure model has traditional factors, and is also influenced by the reality, international factors and development of Chinese society, so its real model has the characteristics of diversity, mobility and contradiction. But on the whole it is a transitional model, and is also a litigation form of State Standards.

As to Chinese criminal procedure system reform in the future, the opinions of academia approximately include "the adversary group", "the inquisitorial group", "the composite group" and "the national condition group". These opinions are basically from academia and not or not wholly the main opinions of citizens and legislators. These opinions are basically the Chinese expression of foreign words and their universal degree and legitimacy are worth thinking. These opinions are basically ideal, but the realistic supporting conditions are comparatively limited.

Based upon the objective analysis and judgment on Chinese realistic and future conditions, the future construction of Chinese criminal procedure model will be restricted by many variable factors in current time and future. Therefore, good results can be expected by using active factors effectively. In this aspect, the construction of Chinese criminal procedure model should consider the influence and restriction of multiple factual factors, and follow the principles of localization, realism, cooperation, evolution and constructivism, creativity, etc., in order to construct a criminal procedure model of "indigenous modern type".

Key Words: Chinese criminal procedure model, reality, ideal

Abstract: As the legal supervision organization, the prosecutorial organization should perform its duty of legal supervision over all the investigation and trial activities in criminal judicature. Moreover, it also exercises investigation power directly in official criminal cases to disclose and prove criminal facts timely and effectively.

But as part of state power, the investigation power of the prosecutorial organization may also be abused. Firstly, power has its intrinsic nature of being abused, and the prosecutorial organization cannot make an exception. Secondly, it is very difficult to investigate into official crimes, and sometimes prosecutorial organizations cannot accomplish their tasks and purposes without violating legal procedures. Thirdly, though by unlawful means, the accomplishment of investigation task may bring benefits to the organization and personnel handling the case. Fourthly, the prosecutors cannot be effectively called to account for their unlawful investigation activities.

In fact, the prosecutorial organization itself has realized that its investigation power may be abused, and has established self-restriction mechanisms. Meanwhile, its investigation power is also be supervised and checked by exterior mechanisms. However, due to several reasons, the effect of such restriction mechanisms is not ideal. Some prosecutors lack consciousnesses of being supervised, and the allocation of power is also unscientific. Legal procedures of exercising investigation power are also too simple. And the examination and appraisal mechanisms are unreasonable, which pay too attention on efficiency and neglect the observation of legal procedures.

To strengthen the self-restriction and exterior supervision mechanisms, prosecutors' consciousnesses of self-restriction and acceptance others' supervision should be strengthened, and the allocation of prosecutorial power should also be optimized, e.g., the determining power of adopting and delaying custody should belong to the higher organization. It is also important to abolish the compulsory measure of residential surveillance, for it can easily educe unlawful investigation activities. Lastly, the rule of excluding illegal evidence should be enforced strictly, and the prosecutorial organization should prove the legitimacy of its investigation activities.

Key Words: abusing investigation power, supervision of investigation, the prosecutorial organization, the restriction of power

Abstract:Backed by the coercible force of the state, the law sets the standards of actions and sanctions unlawful actions, so it makes many of human actions not optional but obligated. Whether because of sanction or threat of sanction, or because of obligation, even because of convenience of action, law should be abided by. However, this abidance may not only result from one's consciousness to his obligation, but also from the threat he feels. When the obedience to law is mainly due to threat, society will be torn into two oppositional camps, and the law will become the instrument of tyranny and enslavement. It will be a misery world that we should do our best to avoid.

As H.L.A. Hart has found in his book, the existence of modern legal system per se is a risk, that is to say, the centralized power can be inflicted on a lot of people against their will unparallelly in history. Therefore, the most important task for theorists is how to find a way to keep a desirable balance between the social order and citizens' freedom. This is a task of domesticating law.

Through reviewing Hart's rule theory by comparison with Austin's command theory, this article accounts for why a rule can generate real obligations but an order or command cannot. The secret lies in the fact that a rule has its internal point. That is to say, if we have the reflective internal attitudes to the rule, our conformance to the law will imply the acceptance of law, not obedience merely.

Legal phenomena have three typical characteristics, i.e. normative, coercible and official. The normative character shows that law is a body consisting of rules, and it is the fundamental element of law. What Hart had done is to whittle the coercion of law, which is the first step of domesticating law, but he failed to complete the whole enterprise. To finish this work, this article presents the internal-generated rule theory, attempting to bridge the gap between "being threatened" and "having the obligation". Namely, the mission of this article is to explore the legal metaproposition of why to obey the law through discussing the reasons to obey the law. The internal-generated rule theory is also a combination of certain traditional Chinese thoughts with Hart's theory of legal rule and Habermas' theory of communicative action.

Key Words:law coercion, law observation, internal-generated rule

Abstract: According to the Administrative Litigation Law in 1989, violation of legal process is one of the legal grounds for courts to annul a specific administrative act. As to the interpretation of "legal process", there are four theories. One theory argues that, only laws and regulations of State Council can stipulate legal process. Another thinks that regulations of local governments can also stipulate legal process. The third theory argues that legal process can also come from the Constitution Law, but the fourth theory thinks that legal process means significant process, no matter where it originates.

As to the legal effect of a specific administrative act violating legal process, there are also three different views, that is, the theory of invalidity, the theory of voidable and the theory of distinction. In perspective of no evitable corresponding relations between process violation and substantive disposal, "the theory of distinction" distinguishes different situations of process violation, which means that the legal effect of process violation is not the same and different disposals should be done according to concrete situations.

In the classic cases relating to the violation of legal process in the Bulletin of the Supreme People's Court, there is relatively a large gap between the reasons and texts of judgments and the stipulations and interpretations of the Administrative Litigation Law. In several classic cases, courts depend on "due process" for judgment when no legal basis can be pursuant to. Such practices have played a positive role in promoting the idea of due process in administrative organs. However, the factual effect of the classic cases as "reference" or "guidance" may be extremely limited. Normative meaning of "violation of legal process" is often uncertain, and it will not be ascertained until the balance of interests in cases.

According to the theory interpretations and judicial practices, this article thinks that, legal process can be stipulated by laws as well as regulations of State Council and of local governments. Where there is no such legal process, courts can resort to "due process" for judgment. When a specific administrative act violates legal process, courts should mainly consider whether the administrative act has damaged the administrative counterpart's substantial legal interests, and distinguish various circumstances to annul the administrative act, confirm the administrative act or dismiss the claim.

Key Words: legal process, due process, administrative litigation

Abstract: The application scope of the Comprehensive Convention on International Terrorism drafted by the United Nations General Assembly is the key issue whether or not the Convention can be concluded. At present, there are two outstanding issues surrounding its application scope, one is the issue of National Liberation Movements, and the other is the issue of armed forces. Moreover, these two issues affect each other, and become the final material obstacles to complete the Convention.The issue of armed forces includes two specific problems, one is whether the activities of armed forces during armed conflicts are governed by the Convention, which is provided in paragraph 2 of draft article 18, and the other is whether the activities undertaken by the military forces of a State in the exercise of their official duties are governed by the Convention, which is provided in paragraph 3 of draft article 18.

As to the actions of armed forces during armed conflicts, the text circulated by the Coordinator of the Convention provides that they are not governed by the Convention, which represents the view of the West countries group. The text proposed by the Organization of the Islamic Conference provides that the activities of the parties including national liberation forces during an armed conflict are not governed by the Convention. The substance of the controversy is the relationship between international humanitarian law (IHL) and international anti-terrorism law (e.g. the Convention). This paper thinks that a feasible solution to current disagreement is that the activities of both State armed forces and national liberation forces during an armed conflict, which are governed by IHL, are expressly excluded from the scope of the Convention.

According to the text circulated by the Coordinator, the activities undertaken by the military forces of a State in the exercise of their official duties are not governed by the Convention. On the contrary, under the text proposed by the Organization of the Islamic Conference, if those activities are not in conformity with international law, they will be governed by the Convention. The terrorism acts committed by the military forces of a State in time of peace belong to acts of State terrorism, which in theory should fall within the scope of the Convention. Morevover, the International Criminal Court can hold members of armed forces responsible for their terrorism crimes. However, since there are a lot of difficulties to punish States themselves for their terrorism acts in the present international reality, this paper thinks that, beyond the Convention, other rules of international law such as IHL and international criminal law can be applied to regulate State military forces' acts in the exercise of their official duties.

Key Words: the Comprehensive Convention against Terrorism of the United Nations, armed force, state terrorism, international humanitarian law, national liberation movements

Abstract: The Soviet law has had long and deep impact on the construction of Chinese revolution legal system. As the first big city liberated by Communist Party of China, Harbin provides a particular angle of view to explore the influence of the Soviet law on the construction and development of liberated cities by Chinese Communist Party.

According to Harbin City Archives and other original data, Harbin's administrative creed, commercial and industrial protection and management regulations and labor regulations had already a certain scale. These laws and regulations show that the legal system of Harbin liberated area was not only affected by the Soviet law, but also with many Chinese characteristics. For example, its democratic constitutional legislation evolved from worker-farmer regime to multi-classes united regime. As to its economic construction, Harbin liberated area took a variety of economic forms affected by the Soviet Law. Under the impact of the Soviet Union, its economic construction was regulated mainly by policies, and there was not clear difference between policies and legislations. In the area of labor regulations, the principle of protecting workers' benefits had also been replaced by protecting both the workers and enterprises.

The characteristics of the legal system of Harbin liberated area have relations with the Soviet Red Army's occupation, cadres' Soviet complex, many Russian nationals in Harbin, the urgency of the war environment and the maturity of Chinese Communist Party in theory, etc. The construction of the legal system of Harbin liberated area is the starting point of the construction of legal systems of Chinese Communist Party from rural to city, and it is also the important vinculum of connecting the worker-peasant democratic regime, the anti-Japanese democratic regime and other peoples' regime of liberated areas. The construction of the legal system of Harbin liberated area was not only impacted by the Soviet law but also reflected the reality of China. It was an attempt of Chinese Communist party to combine the basic principles of Marxism-Leninism and the practice of the Chinese revolution legal system. The construction of the legal system of Harbin liberated area is an important transition of the construction of legal systems in Chinese revolution history.

Key Words: the Soviet law, Harbin liberated area, revolutionary legal history

A Written Symposium: Propelling the Study on Leal History