(Bimonthly)
Volume 42 March 2020 Number 2
CONTENTS
THEME DISCUSSION: Theoretical and Practical Issues relating to the System of Leniency upon Admission of Guilt and Acceptance of Punishment
The Balance Between the Prosecution and the Defense as the Key to Improving the System of Leniency upon Admission of Guilt and Acceptance of Punishment········································ Long Zongzhi
A Revisit to Theoretical Issues Relating to the System of Pleading Guilty and Accepting Punishments with Leniency········································································ ················Chen Weidong
Collaborative Justice: Analysis of the Litigation Type of the System of Leniency upon Admission of Guilt and Acceptance of Punishment···································································· Zhang Jianwei
The Application of the System of Leniency upon Admission of Guilt and Acceptance of Punishment in Cases of Job-related Crimes············································································· Wang Haiyan
THEORETICAL FRONTS
On the Legislative Orientation and System Openness of the Book of Contract Law of the Chinese Civil Code
·········································································································· Liu Chengwei
Legal Person as a Kind of Organization································································· Feng Jue
The System of Dismissal of Directors: Choice of Position and Restructure of Rules··············· Lou Qiuran
Legal Prevention of Potential Risks in Crop Genome Editing········································· Xia Zhihong
Public Law Reflections on the Regulatory Structure for the Information Content of Online Platforms
··············· ··············· ··············· ··············· ········································· Kong Xiangwen
REVIEW OF FOREIGN LAWS
Legal Regulation of Internet Privacy Policy and Protection of Personal Information: the American Practice and Its Implication·································································································Wang Yegang
INTERNATIONAL LAW ISSUES
The System of Remedies for National Treatment for the Admission of Foreign Investment··············Xu Shu
Theoretical Distinctions and Practical Conflicts Between Data Sovereignty and Long-arm Jurisdiction
··············································································································Liu Tianjiao
The Balance Between the Prosecution and the Defense as the Key to Improving the System of Leniency upon Admission of Guilt and Acceptance of Punishment
··········································································· Long Zongzhi
Abstract:The problems of information asymmetry and resource inequality in negotiated justice have led to structural risks. The police and prosecutors have the motivation to suppress the accused so as to overcome procedural barriers. The plea bargaining in the United States and the negotiated sentencing in Germany both have the problem of alienation of negotiated justice. In China, such factors as the lack of effective defense, the poor protection of the right of the accused to know, the initiation of the procedure of leniency upon admission of guilt and acceptance of punishment before the intervention by the defense lawyer and the encouragement of early admission of crime, the unique systems of investigation, interrogation and custody, and the “cooperation” between the prosecution and the court have aggravated the imbalance between the prosecution and the defense and led to a series of negative consequences. Currently China needs to conduct a comprehensive supporting reform targeted at the above-mentioned problems, and the key to the success of this reform is a balanced allocation of procedural resources. The reform should focus on the improvement of such systems as interrogation, pre-trial custody, and defense. The improvement of the procedure itself requires the realization of effective defense and better duty lawyer service, the strengthening of the right of the accused to know, the improvement of the negotiation procedure, the better understanding and application of the standard of proof, and the maintenance of a good balance between quality and efficiency. China also needs to establish an effective system of judicial review and remedy, and impose certain limitations on the application of the system of leniency upon admission of guilt and acceptance of punishment to cases involving co-perpetrators.
A Revisit to Theoretical Issues Relating to the System of Pleading Guilty and Accepting Punishments with Leniency
··········································································· Chen Weidong
Abstract:Conceptually, the system of pleading guilty and accepting punishment with leniency (PGAPL) has three dimensions of meaning - namely policy, principle and institution, with a certain inherent logic among them. PGAPL in the institutional dimension is a comprehensive legal system consisting of substantive and procedural norms. Its core rule is a prosecution and defense agreement procedure; its purpose is to implement the "inquisitorial-type leniency" and "statutory leniency" through a relatively open and standardized procedure platform; and its meaning of "negotiation" is limited and can neither be interpreted as a plea negotiation, nor simply presumed as sentencing negotiations. The research on PGAPL should be carried out from the perspective of trial-centralism - the relation between the two concerns not only the logical consistency of the pattern of criminal proceedings as a whole, but also the rationality of some specific institutional provisions and practical operations. It is of great significance to standardize and justify the system of PGPAL on the basis the core positioning of Chinese-style prosecution and defense agreement procedure and in line with the current institutional positioning and judicial background.
Collaborative Justice: Analysis of the Litigation Type of the System of Leniency upon Admission of Guilt and Acceptance of Punishment
··········································································· Zhang Jianwei
Abstract:China's traditional judicial model is a non-adversarial judicial model, namely repressive justice. The contemporary judicial reform has been influenced by the Anglo-American adversarial litigation and improved the adversarial nature of the litigation. One of the obvious changes in recent years is that legislative and judicial organs are seeking a new type of non-adversarial justice, namely cooperative justice. The system of leniency upon admission of guilt and acceptance of punishment has come into being in this process of transition. This article describes the trajectory of the transition of this type of litigation, reveals the specific judicial needs and underlying structural reasons embodied in the evolution of the system of leniency upon admission of guilt and acceptance of punishment from concept to actual institution, and analyzes issues relating to mechanisms for the formation and maintenance of collaborative justice in practice.
The Application of the System of Leniency upon Admission of Guilt and Acceptance of Punishment in Cases of Job-related Crimes
··········································································· Wang Haiyan
Abstract:The Supervision Law provides for the application of the system of leniency upon admission of guilt and acceptance of punishment to job-related crimes at the investigation stage. However, there are some differences between the Criminal Procedure Law and the Supervision Law in the application of this system in such aspects as value orientation, applicable conditions and concrete procedures. In general, the application of this system to job-related crimes at the investigation stage shows a strong inquisitorial color. In order to give full play to this system and achieve effective linkage between the Supervision Law and the Criminal Procedure Law, China should adopt the following measures: to adhere to the integration of conditions of application of the system at the substantive standard level; to stick to legal standard of proof, improve corroboration rule of confession, implement “in dubio pre peo” principle and establish the “tainted witness” system at the evidence level; and to construct the system for safeguarding the right of the accused to know, the duty lawyer system, and the multi-level compulsory measure system at the stage of investigation and to standardize the application of related documents at the procedural level.
On the Legislative Orientation and System Openness of the Book of Contract Law of the Chinese Civil Code
··········································································· Liu Chengwei
Abstract:Currently, the Third Exposure Draft of the Book of Contract Law of the Chinese Civil Code has been published for comments. This draft and the previous two drafts have all come down in one continuous line, with each of them being an improvement of the previous one. Compared with the current contract law, the Book of Contract Law of the Civil Code is more substantial and richer in content and more complete in system, but still has room for improvement, especially for pragmatic design and reform. In the drafting the Book of Contract Law, attention should be paid to the logical relationship between the book and the General Provisions of the Civil Law. To this end, China should first reduce the referential norms in and incorporate such principles as encouragement of transaction, contractual integrity and the freedom of contract into the Book, and restate the rules of contract validity, so as to uphold the integrity and effectiveness of the contract law; next, China should establish a "contractual centralist" model of obligation law, incorporate such rules as those relating to quasi-contracts, the types of debts and debt-for-equity, etc. into the Book, so as to enable it to function as the substitute of the General Provisions of the Obligation Law; after being incorporated into the Civil Code, the Book needs to build an open system to store more normative energy. In order to maintain its openness, such a system should emphasize the positioning of the basic law of market transactions in terms of its nature, the organic integration of rules, principles and standards in terms of its norms, and the expansion of typical contracts in terms of its type.
Legal Person as a Kind of Organization
··········································································· Feng Jue
Abstract:Since corporations, foundations, one-man companies and sole-proprietorship enterprises are all organizations, the concept of organization can be regarded as the genus concept of legal person. Organizations are the main constituents of modern society and have been discussed as an independent topic in sociology since the 1960s. Introducing the sociological concept of organization into civil law enables organizations in society to become the reality foundation of legal persons on which the distinction between legal persons and other organizations can be made. Meanwhile, it also enables us the find out that the concept of “unincorporated organization” in the General Provisions of the Civil Law seems to be incorrect. As one branch of the theory on the reality of the legal person, the theory of organizational legal person has always been seen as one of the theories on the nature of legal person. Although this theory asserts that a legal person is suitable to be the subjects of rights and obligations by virtue of its institutional framework, it cannot disclose the essential quality of the legal person as compared with other organizations. Taking organization as the foundation of civil subjects is more compatible with the real development need of society.
The System of Dismissal of Directors: Choice of Position and Restructure of Rules
··········································································· Lou Qiuran
Abstract:The rules on the dismissal of directors involve not only the function and structure of the board of directors, but also many other issues, such as shareholder power and corporate governance. The Supreme People’s Court of China released the Provisions (V) on Several Issues concerning the Application of the Company Law of the People's Republic of China on April 28, 2019. Taking the definition of the relationship between corporations and their directors as its theoretical basis, this judicial interpretation makes it clear that a corporation may by a majority resolution remove its directors without cause. However, from the perspectives of comparative law and theoretical analysis, a right to terminate the principal-agent relation is not implied by giving shareholders a title called principal. Such an approach not only is incompatible with provisions of the Chinese Company Law, but also adversely affects the function of board of directors. Unlike its counterparts in the U.S, especially the state of Delaware, the rules on the dismissal of directors without cause would make the conflict between shareholders even worse in China. Moreover, with regard to dismissal of directors, the Chinese Company Law still has lots of other loopholes to close.
Legal Prevention of Potential Risks in Crop Genome Editing
··········································································· Xia Zhihong
Abstract:The author of this article holds that the focus of the dispute over crop genome editing lies not in the crop genome editing technology itself, but in the potential threat posed by the commercialization of genome-edited foods to the security of human survival. However, the prevailing legal prevention mechanism constructed by the various legislations is content with only the required label being fixed to commercialized genome-edited foods and the fact being known to consumers. As a result, the commercialization of genome-edited foods is left to develop wantonly. Furthermore, due to the lack of conclusive scientific evidence, the required label has nothing to do with the issue of whether genome-edited foods are safe. The commercialization of unnatural genome-edited foods poses a potential risk to human health, even life, the consequences of which could be irreversible, and therefore ought to be strictly guarded against. As to the way of legally dealing with such potential risk, the author believes that any relevant legislation should be based on value judgment. From the perspective of value jurisprudence, the commercialization of a product should not be tolerated if it poses even the slightest risk to human survival. Therefore, China should formulate an effective legal prevention system to ensure to a maximum extent the safety of human survival by adhering to the idea of sustainable development and harmonious coexistence between mankind and the nature, while respecting the scientific research on the technology of crop genome editing.
Public Law Reflections on the Regulatory Structure for the Information Content of Online Platforms
··········································································· Kong Xiangwen
Abstract:In the Internet era, the main scene of public expression has shifted to online platforms. Due to the limited technical capabilities and law enforcement resources, administrative agencies tend to urge platforms to implement internal regulation through platform obligations, and the regulatory model for information content has also been transformed into a combination of administrative regulation and private regulation. However, due to the ambiguity of the statutes on the standards for judging illegal information and platforms’ obligation towards their content and the failure to set proper responsibilities, platforms’ regulatory activities have risks and hidden dangers of infringing upon the rights their users. Overly strict regulations may bring about the “chilling effect”, and the private law attributes of platform regulation enable platforms to escape the constraints of public law rules. The possible solution to this problem is to optimize platforms’ statutory obligations and clarify their basic rights protection requirements. How to reconcile the relationship among the state, the platform, and the citizen in the internet era is a topic that needs to be further analyzed in the future.
Legal Regulation of Internet Privacy Policy and Protection of Personal Information: the American Practice and Its Implication
··········································································· Wang Yegang
Abstract:Privacy policy is an important means to guarantee the lawfulness of internet service providers’ collection and utilization of users’ personal information. It is a tool of enterprise autonomy that is also directly related to the protection of users’ personal information. In the US, personal information is mainly protected through the “consumer protection mode”, which emphasizes transactional safety and order and the prevention of fraud and unfair transaction by enterprises. As a result, privacy agreement is not recognized as contract under most circumstances. The European countries have mainly adopted the “data protection mode”, which emphasizes the control over personal data by data subjects and strict regulation. In comparison, the relevant Chinese legislations and practices show no clear mode-orientation. In regulating privacy policies, China should respect the autonomy and self-discipline of enterprises while at the same time giving full play to the role of the contract law in the adjusting privacy policies, so as to strengthen the protection of privacy and ensure the long-term and sustained supervision over the privacy policies of enterprises.
The System of Remedies for National Treatment for the Admission of Foreign Investment
··········································································· Xu Shu
Abstract:The remedy mechanism is a fundamental part of the national treatment system for the admission of foreign investment. While post-entry treatment focuses on the protection of existing investment, pre-entry commitment relates to market access and the exchange of market opportunities. Therefore, the post-entry remedy system is not necessarily suitable for the pre-entry phase. The construction of a comprehensive system of remedies for national treatment for the admission of foreign investment can be carried out in the following aspects: platform of remedies, allocation of the right of action, contents of claims and methods of remedies. With respect to the platform of remedies, China should coordinate local remedies and international remedies to enable foreign investors to either pursue local remedies within the scope of justiciability or to seek treaty remedies in accordance with international investment treaties; with respect to allocation of the right of action, the right of action for foreign investors and the right of action for the home state of foreign investors need to be balanced to avoid double remedy; with respect to the content of claim, since claims of compensation for the disapproval of foreign investment are faced with difficulties in quantification and proof and unable to overcome the admission barriers of foreign investment, it is thus suggested that China should reinforce the remedial function of performance claims between states. With respect to methods of remedies, in addition to the adjudicatory system, it is necessary to strengthen the function of such alternative systems as investment mediation and dispute prevention, so as to satisfy in a more flexible way the admission claims of foreign investors.
Theoretical Distinctions and Practical Conflicts Between Data Sovereignty and Long-arm Jurisdiction
··········································································· Liu Tianjiao
Abstract:Although there is no uniform global rule on the legal regulation of cross-border data flow, the core dispute in this field always centers on the relationship between data and sovereignty. The doctrine of data sovereignty, which relies on modern international law order, insists that data governance still belongs to traditional sovereignty and that its theoretical frontline is continuously extending from network-sovereignty to technological-sovereignty, whereas the doctrine of data liberation, which is based on the idea of Internet cosmopolitanism, emphasizes that data should be able to flow freely without interference from sovereignty and is embodied in a concentrated way in the long-arm jurisdiction over data controllers. In practice, these two order propositions present a complex state of competition and integration. On the one hand, cases of direct conflict are common occurrences. On the other hand, mixed paradigm of double order advocated by the same subject sometimes happens. In this context, China’s legislative approach to cross-border data flow needs to strike a balance between these two order propositions. It should adhere to the order construction based on data sovereignty and expand the extension of the existing theory in light of the latest digital strategy of EU while laying emphasis on efficiency value in digital economy era, avoiding rigid adherence to data sovereignty, and exercising necessary sovereignty-deference. Moreover, China should also attach importance to legislative blocking of the long-arm jurisdiction and promote the improvement of international Internet governance system through the coordination of internal and external legal systems on the basis of attaching equal importance to both security and development.
