(Bimonthly)
Vol. 41, No. 6, November 2019
CONTENTS
The Chinese System of Constitutional Review and Its Functions LI Zhongxia
Normative System of “the Leadership of the CPC” in the Current Chinese
Constitution QIN Qianhong, etc.
Legal Argumentation in the Era of Artificial Intelligence JI Weidong
Free Original Acquisition of Natural Resource Products ZHANG Li
Legislative Policy on Homestead and Institutional Reform of the Right to the Use of Homestead HAN Song
A Reflection on Mixed Operation Provisos in Financial Law LIU Zhiwei
Chinese Approach to the Authentication of Documentary Evidence
CAO Zhixun
A New Approach to the Regulation of Abstract Potential Damage Offense
LAN Xueyou
Empirical Study on the Implementation of Conditional Non-Prosecution HE Ting
Special Non-Prosecution for Confession and Acceptation of Punishment
DONG Kun
Coherence of Evidence as a Standard of Proof in Criminal Justice in the Qing Dynasty
WANG Zhiqiang
Chinese System of Constitutional Review and Its Functions LI Zhongxia
Abstract: As a fundamental constitutional system, constitutional review is not only a legal arrangement but also a political one, with both legal and political functions. China needs to develop a unique constitutional review system on the basis of its own political structure and state power operation system. The 1982 Constitution has established a state power operation structure in which democratic centralism, relationships between deliberative and executive powers, and constitutional review inter-depend on and interact with each other. The constitutional review system should take the maintenance of the balance between deliberative and executive powers as its functional orientation, focus on the dual objectives of efficiency and restraint, and play dual functions at both the political and the legal levels. Constitutional review at the political level should mainly be aimed at standardizing and guaranteeing the realization of democracy from the perspective of Party-government relationship, power structure and democratic operation; constitutional review at the legal level should mainly be carried out by considering how courts deal with constitutional questions in the trial of individual cases. The political function of constitutional review determines that the legal constitutional review should be changed from the current multi-track legislative review regime to a dual-track mechanism with a linkage between the National People's Congress and its Standing Committee and the Supreme People's Court.
Key Words: relationship between deliberative and executive powers; integration of deliberative and executive powers; functional appropriateness; democratic centralism; constitutional review
Normative System of “the Leadership of the CPC” in the Current Chinese Constitution
QIN Qianhong, etc.
Abstract: Article 36 of the 2018 Amendment to the Chinese Constitution adds the provision “The leadership of the Communist Party of China is the most essential attribute of socialism with Chinese characteristics” to the General Principles of the Chinese Constitution, thus bridging the gap between constitutional norms and constitutional practices, and further confirming the Communist Party of China's role as the core of leadership of the cause of socialism with Chinese characteristics. The normative system of “the leadership of the Communist Party of China” in the Chinese Constitution consists of many norms in the Preamble and relevant provisions of the current Constitution. This normative system is a historical product formed through accumulation in the process of constitutional transformation. The norms of “the leadership of the Communist Party of China” in the 1982 Constitution were the inheritance and development of those in the 1954 Constitution. Although the 2018 Amendment to the Chinese Constitution further consolidates and strengthens the political-legal logic of overall leadership of the Communist Party of China, it is quite different from the 1975 Constitution and the 1978 Constitution in the aspects of constitutional functions and legislative techniques. The normative system of “the leadership of the Communist Party of China” in the current Constitution provides new issues for constitutional law study. Researchers of Chinese constitutional law should actively construct a constitutional theory of political parties on the basis of the relatively complete normative system of “the leadership of the Communist Party of China” in the Chinese Constitution.
Key Words: preamble of constitution; amending the constitution; leadership of the CPC; constitutional norms
Legal Argumentation in the Era of Artificial Intelligence JI Weidong
Abstract: As an important technical means, AI can assist legal argumentation and ensure the objectivity and neutrality of legal argumentation, reasoning, judgment and decision. In helping to improve the accuracy of “treating like cases alike”, as well as the predictability of the trial process, judicial AI may in a similar way lead to the result of legal argumentation being hollowed out and becoming no more than mere formality, as well as fostering algorithmic discrimination. For this very reason, the deep learning of AI is inseparable from the intervention and supervision of legal experts. The system construction of intelligent justice should reserve space for legal interpretation and legal discussion. To make artificial intelligence simulate the real law effectively, lawyers should sort out legal background knowledge and enable the computerized process by virtue of general rules and meta rules, by means of the catalogue of topics, and finally establish a value standard system. In order to achieve the objective of value judgment, in addition to build the value system of legal reasoning topic directory to conclude about the law of communication protocols, establishing the value function and the value of the weight is also an important task. Furthermore, there is a need to develop the methods of legal argumentation that are compatible with AI technique, bring the specific scenarios and context into the visual field of the computerization of legal argumentation, and develop corresponding technical methods and models.
Key Word: artificial intelligence, logic jurisprudence, legal argumentation, smart justice, catalogue of legal topics
Free Original Acquisition of Natural Resource Products ZANG Li
Abstract: The free acquisition of natural resource products must be achieved through various original ownership acquisition means in the private law. For resources that are “state-owned” only in the constitutional sense and have not yet become the objects of ownership in the private law, the preemptive acquisition rule for ownerless objects can be applied. For resources that have become the objects of ownership in the private law, the acquisition by way of attachment and fructus can be applied and such acquisition does not have to based on the will of the former owner or the usufructuary right holder. Labor has been integrated into the aforementioned original acquisition means and therefore is not a separate means of original acquisition. The free original acquisition of natural resource products must follow such rules as “acquisition for survival, meeting natural standards, being frugal”, “retaining plenty and good enough opportunities to others”, not violating laws on the protection of natural resources, public order, good customs, and not constituting competitive encroachment upon the usufructuary right of natural resources. The freedom of original acquisition of the ownership of natural resource products is not an absolute right or property right in private law, but should be a legal interest protected in individual cases.
Key Words: natural resources, preemptive acquisition, acquisition by attachment, acquisition by fructus, legal interests
Legislative Policy on Homestead and Institutional Reform of the Right to the Use of Homestead HAN Song
Abstract: The policy of “separation of three homestead rights” has changed neither the basic homestead policy, nor the nature of homestead as a housing land for farmers. Solving the problem of idle rural homestead and housing vacancies and improving the efficiency of resource allocation is not a simple question of granting and expanding the right to the use of rural homestead, but a comprehensive reform that involves implementing collective land ownership, guaranteeing farmers’ right of qualification and housing property rights, and moderately liberalizing the right to the use of rural homestead and houses. The institutional design of the reform must follow the basic legislative policies and conform to the nature of the right to the use of homestead, rather than simply granting the right to the use of homestead and expanding its capacity. The scope of the objective space of homestead should be defined, the right to develop the above-ground and underground spaces of the homestead should be granted to farmers’ collective according to plans, and farmers’ collective should enjoy the spatial management right of homestand. In the change of farmers’ house ownership, the legal leasehold of homestead should be set by collectives for assignees within the scope of living purpose. In commercial and residential areas and business areas, collectives should set the right to the use of collective profit-oriented construction land for transferees. The homestead farmer qualification right should be stipulated as part of famers’ collective ownership rights.
A Reflection on Mixed Operation Provisos in Financial Law LIU Zhiwei
Abstract: Separate operation principle is the guiding principle of financial legislation in China. However, this principle has never been fully complied with in financial legislation. With the assistance of legal practice, mixed operation provisos, which have gradually taken shape in financial law, are mainstreamed. Embedded with generalized enabling clauses and referral clauses, mixed operation provisos, together with changeable financial policies, profit-driven financial capital and segmented financial supervision, have led to the imbalances in the purpose, form and content of regulatory practice. Compared with the time when mixed operation provisos were just created, today no substantive change has taken placed in financial supervision model and judicial environment. To a large extent, the practice of mixed operation has developed an inertial dependence on the elements mentioned above. Even more importantly, the integration and transformation of separated operation-based mixed operation and separated supervision still rely on mixed operation provisos. Therefore, not only should mixed operation provisos be retained in financial law, but their value function, content and structure should be further optimized, so as to better cope with the impacts of segmented supervision and over-courteous financial judicial practice.
Key Words: homestead ownership, homestead use right, homestead farmer qualification right, the homestead spatial management right, the statutory leasehold of the homestead
The Chinese Approach to the Authentication of Documentary Evidence
CAO Zhixun
Abstract: Documentary evidence plays a crucial role in civil judicial practice in China and, therefore, systematic research needs to be carried out on the authentication of such evidence. Special claim for the confirmation of the authenticity of documentary evidence, which is common in the continental legal system, embodies an exception to the general principle of the affirmative claim. However, there is no need to provide for this specific procedure in China. Instead, the authenticity of documentary evidence ought to be a disputed issue in any ordinary civil litigation. In light of the experiences of different continental law countries and the legal practice in China, the Chinese law should require the opposite party to the provider of a documentary evidence to declare whether he will challenge the authenticity of the evidence. It is also necessary to take notice of possible exceptions to this requirement in China. As for substantial requirements, the normative theory, rather than the specific proof status of to-be-proved factual allegation, should be taken as the standard in the allocation of burden of proof regarding to the authenticity of a document. It is necessary to correctly understand the fact-finding effect of authentication of documentary evidence and other institutions and technologies represented by judicial inspection. Distinctions should be made between the proving effect of public documents and that of private documents and between formal proving effect and substantive proving effect. In the documentary proving system, the formal proving effect of a document should indicate the authenticity of the document. Besides, the rules on the presumption of the formal proving effect of public documents could be deduced through the interpretation of the current Chinese law.
Key Words: documentary evidence; formal proving effect; claim for the confirmation of the authenticity of document; burden of proof; public document
A New Approach to the Regulation of Abstract Potential Damage Offense
LAN Xueyou
Abstract: Abstract potential damage offense protects two layers of legal interests: the barrier layer of legal interests, which is a kind of collective legal interests, and the back layer of legal interests, which is a kind of individual legal interests; the former is a kind of post-set order, while the latter is a kind of pre-existing interest; abstract potential damage offense causes only abstract potential damage to the back layer of legal interests, but it causes actual harms to the barrier layer of legal interests; and the foundation of the barrier layer of legal interests is the concept of preventive criminal law, while the foundation of the back layer legal interests is the concept of liberal criminal law. This series of characteristics have determined that the relationship between the two layers of legal interest is neither alternative nor parallel, but a kind of “means - purpose” relationship; protecting the barrier layer of legal interests is only the means of protecting the back layer of legal interests, which is the purpose. It is this “means - purpose” relationship that enables the double-layer legal interests to become the methodological carrier of the principle of proportionality and to be introduced into the criminal law system. By introducing the principle of proportionality into the double-layer legal interests, the goal of legislative and judicial regulation of abstract potential damage offense can be achieved: in legislation, a new abstract potential damage offense can be introduced into the criminal law only when the double-layer legal interest conforms to the principle of proportionality; in judicial practice, when explaining the constituent elements of abstract potential damage offense, the “proportional double-layer legal interests” should be taken as the guidance to ensure that the conclusion of interpretation conforms to the principle of proportionality.
Key Words: abstract potential damage offense, two layers of legal interests, principle of proportionality
Empirical Study on the Implementation of Conditional Non-Prosecution
HE Ting
Abstract: Conditional non-prosecution (CNP) provides a new approach to pretrial diversion and non-criminalization of juvenile offenders. The implementation status of CNP is a significant indicator of the development of juvenile justice and application of non-prosecution discretion in China. An analysis of national and some regional data from 2013 to 2017 shows that, although there is a significant increase in CNP and in the rate of pretrial diversion of juvenile offenders in the five years of the application of the system of CNP, this system is still faced with many problems, such as narrow scope of application, insufficient number of cases, unstable application, and imbalance between different regions. Field investigations carried out in eight grassroots regions of four provinces with different levels of development using such data collection methods as case files review and depth interview have revealed the situation of, as well as the existing problems in, the concrete application of CNP in the following four aspects: the scope of application and influence factors; supervision and evaluation; incidental conditions; and revocation of CNP. Problems with the scope of application and influence factors mainly include narrow scope of applicable crimes, unclear relationship between CNP and discretional non-prosecution in juvenile cases, and influence of such objective factors as juvenile offenders’ connection with the location of crime, the development of the social support system and indicators for the evaluation of procurator’s performance on the decision of whether or not to apply CNP; problems with supervision and evaluation mainly include single method, insufficient social participation, absence of synergy between various subjects, and lack of flexibility in the application of time limits as well as disciplinary measures against violations; and problems with incidental conditions mainly include misunderstanding of their nature, low degree of individualization and pertinence, weak application, and insufficient supervision over the implementation. Corresponding measures for improving the CNP system include revision of legislation, improvement of judicial operation, updating of ideas, policy safeguard, and cultivation of social support.
Keywords: conditional non-prosecution; juvenile justice; empirical study
Special Non-Prosecution for Confession and Acceptation of Punishment
DONG Kun
Abstract: The 2018 Chinese Criminal Procedure Law introduces a special non-prosecution system. The first applicable situation of this system is “major meritorious act”, which should be narrowly interpreted as “extraordinarily major meritorious act”. It is equivalent to the “major meritorious act” in the application of discretionary non-prosecution. In theory, this kind of non-prosecution can be regarded as the introduction of foreign “prosecution-assisted” tainted witness system under the principle of balance of interest. Another situation to which special non-prosecution is applicable is “a case involving any major national interest”. Such a case extends the scope of discretionary prosecution in China and can be interpreted in the same way as “special circumstances of the case” in Article 63 Paragraph 2 of the Chinese Criminal Law. In addition, the Supreme People’s Procuratorate has the exclusive authority of approving special non-prosecution. The highest-level approving authority, the small number of cases, and the prudent decision-making process have reduced the channels of ex post facto remedy for and constraints on special non-prosecution. It is worth noting that the provision on selective prosecution in special non-prosecution reflects the latest developments of the theory of “crime negotiation” and the theory of “litigation object”.
Key Words: leniency for confession and acceptance of punishment, special non-prosecution, major meritorious act, major national interest, negotiated justice
Coherence of Evidence as a Standard of Proof in Criminal Justice in the Qing Dynasty WANG Zhiqiang
Abstract: Through the study of Zheng Qingnian Case - a homicide case in the 4th year of Emperor Tongzhi’s Reign in the Qing Dynasty (1865), this article sheds new lights on the process of fact-constructing by local officials during that period of time through the comparison of archive records preserved by local and central administrations. By manipulating the proofs and pruning the facts, the officials managed to turn the evidence that carried conflicting voices at the first trial into a version with perfect consistency, as is shown in the Imperial Memorial of Penal Section. In corroboration with this case, other sources also indicate the requirements of proof sufficiency in the criminal justice at that time, particularly the high demands on the coherence of proofs. This seemingly absurd standard was the result of a series of mechanisms, such as dossier review by central government and super-powerful local officials under strict supervision. Seen against its judicial institutional settings of hierarchical centralization, the case study illustrates the inherent causality between judicial technical requirements and grand political structural institutions.
Key words: Qing Dynasty; criminal justice; standard of proof; judicial structure
