(Bimonthly)
Volume 41 November 2019 Number 6
CONTENTS
THEME DISCUSSION: Algorithm Governance and AI
Algorithmic Regulation and (Im)Perfect Enforcement in the Personalized Economy
Christoph Busch
The Myth of the Algorithmic Transparency Principle: A Critique of the Algorithm Regulation Theory Shen Weiwei
Method of Evaluation of Artificial Intelligence in Criminal Law from the Perspective of Criminal Compliance Yu Chong
THEORETICAL FRONTS
War, Peace and Constitutional Consensus Han Dayuan
Is It Necessary to Rebuild the Corporation Kingdom? - The Inappropriateness of Letting the Corporate Law Govern All Types of Enterprises Jiang Daxing
The Chinese Face of the Rule of Law Model from the “Family” Perspective
Li Yongjun
A Tentative Discussion of the Shanghai-London Stock Connect Scheme and Its Cross-Border Conversion Mechanism: A Preliminary Analysis from the Perspective of Temporary Law Tang Yingmao
The System of Appropriate Adult’s Presence during Interrogation of Juvenile Suspects: Reflections on the "Uselessness" Argument behind the Formalization
He Ting
The Concept of Legal Interest in Modern Criminal Law: The Advocacy of Legal Interest Dualism Ma Chunxiao
Judicial Dilemma of Data Crime in China and the Way-out: An Analysis Centered on the Legal Interest of Data Security Yang Zhiqiong
INTERNATIONAL LAW ISSUES
A Revisit of the Unitary System and the Scission System in the Determination of the Applicable Law of Succession: From the Perspective of the Correspondence Between Legal Relations, Connection Points and Applicable Laws Shen Juan
COMPOSITE TABLE OF CONTENT: 2019
The Myth of the Algorithmic Transparency Principle: A Critique of the Algorithm Regulation Theory Shen Weiwei
Abstract: In recent years, with the emergence of a large number of problems of algorithms, people begin to think about the way to regulate algorithms. The Algorithmic Transparency Principle is, practically and theoretically, a well-known principle highly praised by a significant number of scholars. However, as an ex ante regulation, it has inherent limitations when compared to ex post regulation. Although the Algorithmic Transparency Principle can alleviate some “black box” problems, in the age of massive legislative, administrative and judicial regulation of algorithms, the principle is normally neither feasible, nor necessary. Therefore, the reasonable position of the Algorithmic Transparency Principle in the algorithm regulation family should be a non-universal and subsidiary one. Based on a critical analysis of the Algorithmic Transparency Principle, this article considers the reconstruction of the theory of algorithm regulation, and further argues that, in contrast to essentialism-driven ex ante regulation, such as algorithmic transparency, the pragmatism-driven ex post regulation, such as algorithmic accountability, is a more appropriate regulatory strategy.
Method of Evaluation of Artificial Intelligence in Criminal Law from the Perspective of Criminal Compliance Yu Chong
Abstract: Most of the existing researches on AI crime ignore data security and algorithm regulation, which are the core issues of AI, and talk about AI in isolation, so that most of the criminal law responsiveness researches on AI focus on the level of the unknowable and sci-fi "robot regulation". In the criminal law regulation of AI, it should first of all be made clear that the object of criminal regulation is the behavior of AI developers, rather than the “behavior” of AI. Then, we should, on the basis of the basic traditional theory and the framework of criminal law, establish the "co-governance" thinking and preventive thinking in the prevention and control of AI crimes, and shift the focus of criminal law regulation from evaluation of results after the event to the prevention of risks in advance. Therefore, it is necessary to introduce the evaluation mechanism of criminal compliance in AI, and on the condition that the algorithm can be interpreted and the AI decision-making data is transparent and by means of criminal law, use algorithmic compliance and data compliance on the AI industry chain to determine the fault of the algorithm and the fault of the person behind the algorithm bullying, and prevent AI decision-making errors caused by data flaws and human faults in algorithm design, algorithm deployment and algorithm application. More specifically, we should face up to the risks of AI, realize the crime prevention function of criminal compliance, and promote the transition from traditional criminal law evaluation model of after-the-event sanction to that of prevention, organically combine the external regulation of criminal compliance and self-management and, on the basis of the concretization and situationalization of criminal law rules, realize the functional coordination between criminal law and the regulatory framework of AI enterprises.
War, Peace and Constitutional Consensus Han Dayuan
Abstract: The history of constitution and war shows that early constitutions mainly emphasized the maintenance of domestic peace and order. As such, they had very strong territorial attribute and were unable to completely prevent wars between nations. It has been proven by practice that constitutional provisions on peace are not enough to prevent the outbreak of wars and could even provide formal legitimacy to fascist powers. After the World War II, the international community called for peace and hoped that constitutional consensus would be able to ease the tension between nationalism and constitutionalism and construct an international order based on peace. In the age of informatization and globalization, the maintenance of peace and order has become a basic consensus as well as a constitutional consensus of the international community. Especially faced with new technological revolution, constitutions should be able to contain the irrationality of science and technology, reduce the risk of war, and ensure that the development of science and technology benefits mankind and promotes peace.
Is It Necessary to Rebuild the Corporation Kingdom? - The Inappropriateness of Letting the Corporate Law Govern All Types of Enterprises Jiang Daxing
Abstract: Corporate law is an important but not the only member in the enterprise law family. Similarly, corporation is only an important but not the only member of the enterprise family. Although the development of “unincorporated enterprises” has been constantly influenced by companies and thus showing a corporatization tendency, enterprises and the relevant laws still maintain a multi-dimensional structure, no matter how the corporate law expands. The development of corporate law has not led to the disappearance of "unincorporated enterprises". On the contrary, "unincorporated enterprises" not only continue to grow in quantity, but also are constantly promoting the evolution of corporations in terms of institutional forms, even the non-corporatization of incorporated enterprises. When the compilation of the Civil Code continues to reduce/impact the expectations of commercial law scholars on the Commercial Code, some scholars advocate reforming the method of the codification of the corporate law by adding general rules of the corporate law into the code and letting the corporate law govern all types of enterprises, so as to indirectly promote the adoption of the Commercial Code. Although this is a “smooth and silent” technical route, it is a very expensive way of legislative adjustment as far as “ownership enterprises” are concerned. Letting the corporate law to govern all types of enterprises not only blocks the evolution path of the enterprise system, depriving “ownership enterprises” of their advantages of convenience in establishment, operation and taxation, but also incurs unnecessary “system conversion costs”. Therefore, the enterprise system is not merely the result of rational design, but also the product of commercial practice, as well as the taxation system. China does not need to rebuild the corporate law kingdom: as far as the transformation of enterprise type is concerned, it is not advisable to let the corporate law govern all types of enterprises.
The Chinese Face of the Rule of Law Model from the “Family” Perspective
Li Yongjun
Abstract: The “Family” life-style in China has bred the distinctive Chinese right concept. In China, rights play their role not as the first-choice mechanism, but as a back-up mechanism, for maintaining family life. The maintenance of the “Family” relies on a set of mechanism characterized by “identity”, “differentiation”, “empathy” and “forbiddance”, which deeply influences the way of legal adjustment of the real life. The expansion of the “Family” way of thinking has given the meaning of the “Family” to society, the state, the world, and the nature. The individual from the "Family" perspective is not an independent individual in the pure sense, but a “relational self” and the relationship between the individual and the community is a kind of inter subjective balance based on the idea of responsibility. Since the "Family" shapes the Chinese thinking and deeply participates in the Chinese life, the existence of the "Family" cannot be ignored in the construction of the rule of law in China. Only by promoting the family can China expand the social foundation of the rule of law, and only by taking full care of the family can China construct its own rule of law model. The rule of law in the sense of the "Family" attaches importance to the function of consultation and education. Instead of restoring the traditional paternalism, it tries to cultivate family affection, humanity, tolerance and mutual assistance through the "Family", and then cultivate citizens’ sense of responsibility to society and the foundation of the good rule of law.
A Tentative Discussion of the Shanghai-London Stock Connect Scheme and Its Cross-Border Conversion Mechanism: A Preliminary Analysis from the Perspective of Temporary Law Tang Yingmao
Abstract: UK-listed companies are permitted to be listed in China under the rules governing the Shanghai-London Stock Connect Program (Shanghai-London Stock Connect Rules). Under the Shanghai-London Stock Connect Rules, the cross-border conversion mechanism allows Chinese securities companies to buy shares of UK-listed companies, deposit such shares with the depositary and receive depositary receipts from the depositary. The cross-border conversion mechanism and the rules prohibiting issuance of shares and depositary receipts by UK-listed companies both have the characteristics of what Professor Ginsburg called temporary law, which is a set of temporary and transitional legal rules. In fact, such temporary regulations have the function of legal experiment, which can avoid permanent damage to the rights of relevant parties and reduce cost of market opening through experiment, but also has such disadvantages as high institutional restructuring cost and low quality of law drafting. From the perspective of regulation, such rules embody a hybrid paternalism that has both regulation and deregulation features - not simple "free supervision paternalism", but "mixed supervision paternalism", which may result in the transformation of temporary law into permanent law, irreversibility and other deep problems.
The System of Appropriate Adult’s Presence during Interrogation of Juvenile Suspects: Reflections on the "Uselessness" Argument behind the Formalization
He Ting
Abstract: Field investigations shows that there is an increasing trend towards the formalization of the system of appropriate adult’s presence during interrogation of juvenile suspects: the coverage of this system is insufficient and the appropriate adult’s presence has left no deep impression on juvenile suspects. The reasons of this trend towards the formalization include the weak compulsoriness of the appropriate adult’s presence, the lack of sufficient source and capacity of appropriate adult to support the substantive performance this duty, and the restriction on the activity of the appropriate adult during interrogation. The serious formalization of the system of appropriate adult’s presence has led to the argument that this system is useless and should be abolished. To respond to the “uselessness” argument and rethink the necessity and value of this system, it is necessary to go beyond the superficial function of supervising and witnessing the interrogation process, return to the institutional root of state guardianship, pay attention to its multiple values - such as safeguarding the right of juvenile suspects to participate in the criminal process, realizing the socialization of juvenile justice, and developing a cooperative litigation structure - from the perspective of juvenile justice, and enable the appropriate adult to play a substantial role by improving the system and its operation.
The Concept of Legal Interest in Modern Criminal Law: The Advocacy of Legal Interest Dualism Ma Chunxiao
Abstract: In modern society, the relationships between the state and the individual and between the task of the state and that of the criminal law have changed, leading to the transformation of the theory of legal interest. Since both the early monism of legal interest and the moderate monism of legal interest have theoretical defects and cannot be the ideal type of modern criminal law, the dualism of legal interest should be advocated. Dualism is also a distinct humanistic theory of legal interest and it shows more clearly that subjects of legal interest includes not only "I" but also "We". Whether collective legal interest is qualified or not is determined not simply by whether it can be reduced to individual legal interest, but by whether it has substantive content in line with the constitution. It also gives collective legal interests the substantive conception to criticize the legislation. Advocating dualistic theory of legal interest in the Chinese context is conducive to the scientific understanding of the connotation and functional transition of the concept of legal interest and to better explaining the current situation and the development trend of the criminal legislation in China. However, due to the influence of traditional criminal law ideas, collective legal interests are still faced with the problems of being misunderstood and indiscriminately applied. Therefore, it is necessary to rationally understand the concept of legal interest and recognize its functional upper limit. In legislation, the supplementary restriction on the protection of legal interests through the principle of subsidiarity and the principle of clarity should not be neglected. In judicial practice, constitutive requirements should be taken as the logical starting point of the explanation of specific crimes.
Judicial Dilemma of Data Crime in China and the Way-out: An Analysis Centered on the Legal Interest of Data Security Yang Zhiqiong
Abstract: Currently the lack of clear positioning of the legal interest of data protection has led to difficulties in the interpretation and delineation of data crimes. These difficulties stem from both the "congenital deficiencies" in the legislative independence and the obstacles to technological recognition. As a result, the protected legal interests in data crimes and related normative system are obscured by the traditional computer crime system, and it is difficult to eliminate the differences between technical evaluation and normative evaluation in data crimes. In the big data era, data security interest consisting of confidentiality, integrity and applicability (CIA) should become an independent protected legal interest in data crimes in China. The judicial application of data crimes should be separated from the traditional computer crime system; the CIA should be used to reinterpret the constituent elements of data crimes, so as to promote the deep integration and evaluation of data crime norms and technical rules, clarify the boundaries between data crimes and other computer crimes and traditional crimes, and reasonably determine the scope of application of data crimes.
A Revisit of the Unitary System and the Scission System in the Determination of the Applicable Law of Succession: From the Perspective of the Correspondence Between Legal Relations, Connection Points and Applicable Laws Shen Juan
Abstract: In the rules of law selection, there should be correspondence between connection points, legal relationships and applicable laws. That is, personal connection points should correspond to personal relationships and personal laws; real connection points should correspond to real relationships and real laws, and actional connection points should correspond to legal relationships with action as the core and the laws adjusting civil and commercial actions. This correspondence focuses on choosing connection points on the basis of the nature of legal relationships. It not only embodies the rationality of the legal selection rules, but also improves the predictability of the results of legal selection through the correspondence between connection points and legal relationships. And it can also achieve the validity of the law application. The scission system of the determination of the applicable law for legal succession has chosen a real connection point for succession, which is a personal relationship, when setting the rules of law selection. It does not embody the predictability of the result of legal choice, nor can it achieve the validity of law application. The three connection points of the court, the closest contact, and the choice of the parties are the exceptions of correspondence in the law selection rules. However, the confusion to correspondence in the rules of scission system is different from the three exceptions to correspondence, in that it does not have the necessity and advantage of the latter. This paper takes the scission system of determining the applicable law for legal succession as an example to demonstrate that the selection of the connection point is directly related to the scientific nature of legal selection rules and the rationality and effectiveness of legal choice.
