(Bimonthly)

Volume 42                   January 2020              Number 1

CONTENTS

THEORETICAL FRONTS

The Scope of Administrative Agreement: Also on Article 1 and Article 2 of the Supreme Court’s Judicial Interpretation of Administrative Agreements

··········································································· Wang Liming

Corporate Criminal Liability from the Perspective of Compliance

··········································································· Chen Ruihua

Defects, Value Function and Improvement of the Working Hour System in China     Zhao Hongmei

Differentiation Between Participants and Victims of the Crime of Illegal Fundraising under the P2P Mode·········································································· Dong Wenhui

Constitutional Review of Bills: Procedures, Matters and Methods

··········································································· Chen Yushan

The Marginal Equilibrium of Criminal Judicial Discretion - From the Perspective of the Gun Identification Standard and Zhao Chunhua Case

············································································· Xiong Delu

Personal Information as Enterprise Assets? – A Balance Between the Protection of Personal Information and the Legitimate Interests of the Business Owner in Merger and Acquisition Yu Jianan

REVIEW OF FOREIGN LAWS

The Limitation of Illegality Defence in Tort in UK

··········································································· Huang Zhong

The Judicial Activism of the International Criminal Court: Practice, Reflections and Regulation       Zhu Dan

The Necessity of Weak-form Judicial Review System··············· Zhu Xuelei

INTERNATIONAL LAW ISSUES

On the Establishment of Foreign-related Civil Circuit Court System in China Xu Qingkun

The Functional Diversion of China's Free Trade Agreements under the Pressure of the Policy of "Containing China by Rules"················································ Liu Bin

The Scope of Administrative Agreement: Also on Article 1 and Article 2 of the Supreme Court’s Judicial Interpretation of Administrative Agreements

··········································································· Wang Liming

Abstract: The Supreme People's Court recently promulgated the Provisions on Several Issues Concerning the Trial of Administrative Agreement Cases, which explain the concept and specific scope of administrative agreements. But the specific content of the Provisions shows that this judicial interpretation gives too vague and broad definition to, and inappropriately expanded the scope of, administrative agreements. As a result, it is difficult for such standards as subject standards, objective standards, and rights and obligations in administrative law to be applied in the identification of administrative agreements. Non-market behaviors should be taken as the key element of administrative agreement identification. In fact, agreements on the transfer of mining right, the right to the use of other state-owned natural resource, and government-invested affordable housing leases are essentially market behaviors and should belong to the category of civil contracts. The expansion of the scope of administrative agreements by the interpretation is neither in conformity with the non-market behavioral nature of administrative agreements or the relevant laws and regulations, nor conducive to the settlement of related agreement disputes. Therefore, the concept and scope of administrative agreements should be reconsidered from the perspectives of applicability of rules of contract law, transaction safety and transaction efficiency, and maintenance of the seriousness of contracts, in order to better realize the due functions and role of administrative agreements and fully protect the rights of all parties to administrative contracts.

Corporate Criminal Liability from the Perspective of Compliance

··········································································· Chen Ruihua

Abstract: On the issue of criminal liability of enterprises, Western countries traditionally follow the principle of corporate behavior and subjective faults inferred from the behavior and subjective fault of corporate employees. Today, this method of liability determination is widely questioned and challenged. A theory based on "organizational responsibility" is emerging and providing a theoretical basis for the introduction of corporate compliance into the corporate liability principle. The unit crime system established by Chinese criminal law faces such problems as “the lack of unity of incrimination standards” between unit crimes and natural person crimes, different punishments for the same crime, and the difficulties in maintaining a balance between criminal responsibility and administrative responsibility and in determining the will of the unit. Only by accepting “the theory of independent will of company”, treating the unit as an independent living organism, and recognizing its capacity for independent act and independent subjective will, can China get out of the above dilemmas and integrate corporate compliance into the principle of unit liability.

Defects, Value Function and Improvement of the Working Hour System in China     Zhao Hongmei

Abstract: Overtime in enterprises has become a widespread phenomenon in China. The surface-level cause of this phenomenon are the serious defects in the key institutional norms on the working hours system, including standard and special working hours and overtime control, which make it difficult for them to be implemented. The middle-level cause is the lack of coordination of the relations between the working hour system and the main systems of labor and social insurance laws, including the relations between the restriction on overtime and the payment for overtime, between base salary and overtime pay, and between overtime pay and social security premiums – which encourages the employer to circumvent the work hour system. And the deep-level cause is that the value function of the working hour system in China has been widely questioned and its foundation is shaken. All these factors have posed serious challenges to the working hour system in China. To meet these challenges, China should reform and systematically improve its working hours system and relevant institutions.

Differentiation Between Participants and Victims of the Crime of Illegal Fundraising under the P2P Mode·········································································· Dong Wenhui

Abstract: Differentiating victims from underground fund-raisers is both necessary and reasonable. The relationship between these two groups is neither equivalent nor exclusive, but inclusive. In other words, the victims belong to the category of underground fund-raisers. The theory that holds the victims responsible for their decisions is biased and inconsistent with facts. Non-professional investors deficient in the capacity for risk identification are easily controlled by fund raisers who take advantage of information asymmetry and influenced by a herd mentality that makes them follow others blindly. Therefore, their participation in fund-raising is not a true self-determination, which makes it proper to call them victims. By contrast, the participation in underground fund-raising by such persons as investors with information superiority that contributes to their invulnerability to information asymmetry, professional investors capable of risk identifying and bearing, and such malicious investors as the “econnoisseurs” constitutes an act of self-trapping, and none of these persons falls into the victim category due to their dominance in the market. In the disposal of the property involved, victims deserve to be paid secondly for what has been unlawfully taken from them, and the self-trapping investors should be compensated thirdly for inferior distribution of "other civil liabilities". This order of compensation embodies the criminal policy objective of investor risk education and is in conformity with the macro-political goal of safeguarding national financial security and stabilizing social order.

Constitutional Review of Bills: Procedures, Matters and Methods

··········································································· Chen Yushan

Abstract: The constitutional review of bills is a form of ex-ante self-control of the constitutionality of bills by legislative organs in the legislative process. It is an important part of the constitutional review mechanism in China. In the absence of fundamental institutional barriers, activating the constitutional review of bills in advance is of great practical significance to improving constitutional implementation and supervision and upholding the authority of the Constitution. The deliberation procedure established by the Legislation Law (including the prior deliberation procedure and the formal deliberation procedure) contains the opportunity of constitutional review of bills. In light of the characteristics of the content and structure of the Chinese Constitution, legislative organs in China should base themselves on the practical needs of China, draw on the experiences of other countries, and focus constitutional review on certain concrete matters in draft laws that most likely to involve the issue of constitutionality, so as to improve the efficiency of the review. With respect to the more concrete matters of review, legislative organs needs to creatively use such methods as "prohibition of abstract public welfare clauses" , "screening by the principle of equality" and "scrutiny by the principle of proportionality" to effectively eliminate unconstitutionalities in draft laws and steadily advance the development of a constitutional review system compatible with China's national conditions.

The Marginal Equilibrium of Criminal Judicial Discretion - From the Perspective of the Gun Identification Standard and Zhao Chunhua Case

············································································· Xiong Delu

Abstract: The dilemma faced by criminal justice in gun cases can be clarified and solved on the basis of the practice in real social life, rather than imaginary concepts of words. The criminal judicial power intrudes into the normal social life of ordinary citizens abruptly through the identification standard of guns, thus breaking the basic marginal equilibrium between judicial power and civil rights and causing embarrassment to criminal judicial discretion. Guns with high risk in the sense of criminal law should not be associated with the normal activities of ordinary citizens in the production, selling and buying, and recreational use of toy guns and simulation guns. The discretion of criminal justice should be modest and not intrude into the daily life of ordinary citizens - which is the basic marginal equilibrium between the power of criminal justice and the interests of ordinary citizens. At present, criminal justice fails to abide by this basic marginal equilibrium, and "comprehensive consideration" of gun cases on the basis of a gun identification standard that interferes with the normal social life of citizens only increases the internal complexity and seriously weakens the legitimacy of criminal justice. Only by facing up to the practice of real social life, setting the appropriate standards for gun identification, abandoning the legal formalism thinking, and maintaining the basic marginal equilibrium of criminal justice discretion, can China effectively solve the dilemma faced by the judicial governance of gun crimes.

Personal Information as Enterprise Assets? – A Balance Between the Protection of Personal Information and the Legitimate Interests of the Business Owner in Merger and Acquisition Yu Jianan

Abstract: Merger and acquisition is one of the important situations in which the right to personal data and the interests of business owners are defined. In principle, the privacy issue would not arise in cases of share acquisition and the merger, division, or the change of organizational form of enterprises. Cases of asset deal, however, involve the transfer of personal data. Yet the legitimate interests of both sides of the purchase and the creditor of the target company should also be taken into consideration in such cases. Both US law and EU law have established exceptional mechanisms for asset deal that allow the transfer of personal data without the consent of data subjects. The core of these mechanisms is the balance between the interests of data subjects and those of the company. On the one hand, it is necessary to examine whether the original purpose of the use of the data can still be realized after the purchase. On the other hand, it is necessary to consider whether the purchasing parties have legitimate interests in the transaction. If both parties to the merger have reasonable legal interests in the transfer of the personal data, the company should be allowed to transfer the personal data, on condition that the users be provided with the right to opt in or out before or after the merger.

The Limitation of Illegality Defence in Tort in UK

··········································································· Huang Zhong

Abstract: How to limit the illegality defence in torts has always been an important issue in UK. To this end, there have emerged many kinds of understandings in the British judiciary, such as the classification of illegal types, the theory of reliance principle, the theory of proximate cause, the theory of legislative intention, the test of public conscience, and locus poenitentiae. In 2009, the Law Commission proposed that the reform task of the plaintiff's illegality defense in torts be left to the court. However, the Hounga v Allen Case has shaken scholars’ confidence in the judiciary and made them believe that legislation is still needed. The essence of the restriction of the plaintiff's illegality defense is the balance between the public interest and the private interest. Therefore, it should be considered in the two dimensions of the relationship between the plaintiff and the defendant and that between the plaintiff's illegal behavior and the public interest. The effect of illegality on contracts, performance based on illegal reasons and illegality defence in tort are issues with substantial similarities and should be dealt with together in an integrated way.

The Judicial Activism of the International Criminal Court: Practice, Reflections and Regulation       Zhu Dan

Abstract: There is a growing tendency towards judicial activism in the International Criminal Court (ICC)’s recent interpretation of the Rome Statute. By engaging in judicial activism, the Court has expanded the definitional and jurisdictional scopes of the crimes under the Rome Statute, which contravenes both the text of the Statute and the intent of its drafters. The hybrid nature of international criminal law, the ad hoc tribunals’ prevalent policy of judicial activism, and the uncertainties surrounding the Statute’s applicable provisions and interpretative rules have all contributed to the ICC’s judicial activism. As unauthorized judicial law-making, the ICC’s judicial activism not only violates state sovereignty and the principle of legality, but also jeopardizes the international community’s confidence in pursing accountability for international crimes through the Court. The key to regulating the ICC’s judicial activism is to clarify and coordinate the scope and relations of the application of the interpretative rules under the Vienna Convention of the Law of Treaties, as well as the strict construction and the principle of giving the accused the benefit of the doubt that are required by the principle of legality, in the interpretation of the Rome Statute.

The Necessity of Weak-form Judicial Review System··············· Zhu Xuelei

Abstract: The weak-form judicial review in Commonwealth countries, as a new type of rights protection system, has attracted much attention from scholars and the necessity of this new model, with the relationship between the court and the parliament as its main content, has become a key question in the field of comparative constitutional law. Since its emergence, the dialogue theory has rapidly become a dominate paradigm for answering this question. This new theory covers all links of the interaction between the court and the parliament and has a profound influence on judicial practice. During the follow-up development, the nature of the dialogue theory has gradually changed from a descriptive one to a normative one, which means it began to guide judges and legislators on how to exercise their power. However, the dialogue theory fails to fully demonstrate the peculiarity and values of weak-form judicial review. As a result, its normative transformation has been criticized and some supplements and improvement are needed. After reconstruction, the new dialogue theory is both interpretive and constructive and it has three levels, which demonstrate why weak-form judicial review is possible, why it is valuable and how it should operate. In spite of this, the new dialogue theory is not perfect and still needs to be adjusted and updated in the process of interaction with the practice.

On the Establishment of Foreign-related Civil Circuit Court System in China Xu Qingkun

Abstract: The Supreme People's Court (SPC) has taken the improvement of international credibility of China's judiciary as the emphasis of the judicial safeguards for the construction of "Belt and Road". However, there is an obvious gap between the quality of the trial of foreign-related civil cases by Chinese courts and the image of rule-of-law civilization pursued by China. The crux of the problem lies in such dilemmas faced by the foreign-related judicial system as the conflict between the imbalance of spatial and temporal distribution of foreign-related cases and the rigid arrangement of foreign-related judicial resources, and the contradiction between the special professionalism of foreign-related civil trials and the insufficiency of high quality judicial resources. In the face of the above dilemmas, establishing a foreign-related circuit court system compatible with the centralized jurisdiction can be regarded as a viable option. The current institutions of centralized jurisdiction and circuit courts of SPC have laid the foundation, the new rules for the selection of judges and the top design of judicial reforms have supplied the talent channel and policy basis, and the consensus on the review system of civil litigation and retrial system has provided the theoretical support for this new mechanism. The current reform can be carried out by focusing on such aspects of the system as the review system and establishment of courts, selection and appointment of judges, internal institutions and distribution of functions, and trial and enforcement mechanisms.

The Functional Diversion of China's Free Trade Agreements under the Pressure of the Policy of "Containing China by Rules"················································ Liu Bin