Global Law Review(3-2020)



Algorithmic Governance Policy and Its Implementation Approach in the United States

Karman Lucero

Abstract: With the development of big data-related technologies, more and more governments and private entities begin to use algorithms to handle daily affairs and decisions. There has been a lot of discussions in the American legal community about how to adjust to the impact of algorithms on such legal issues as due process, transparency, privacy, responsibility and accountability and these discussions involve both the reinterpretation of existing laws and the proposal of new systems. At the same time, the US government has also responded positively in this regard. Both the previous and the current administrations have issued multiple documents to establish the governance strategy and guiding principles of artificial intelligence, which have been continuously updated. In some specific areas, the federal and state governments have achieved some results in algorithmic governance through legislation and judicial precedents. In addition to the governance initiatives of government entities, industry self-regulation and society organizations also provide useful support on the issue of algorithmic governance by cooperating with other entities to establish new systems or directly working to influence legal changes.


Initiating Criminal Trial in Absentia: Regulation and Discretion in the United States

Chu Dianqing

Abstract: The ruling system of initiating criminal trial in absentia in the United States develops around the jurisprudence of defendant’s right to presence and takes the institutional form under the combined influence of normative limitation and judicial discretion. Rule 43 of FRCP is of great significance to this system, but it is not the whole story. Moreover, the judicial discretion in this area is a multidimensional complex of three kinds of discretions. The features of the ruling system of initiating criminal trial in absentia in the United States includes: firstly, the ideology underlining the right to presence is the centripetal force leading the legislative practice, and the judicial discretion plays a main role in practice; secondly, as an essential factor, the separation of defendant and its right to presence finds its rationale in either waiver or forfeiture; and thirdly, the analysis of interests is the main leverage in the discretion in specific cases. In establishing the system of initiating criminal trial in absentia, China may choose a dynamic way of fundamental legislative regulation and more leeway for discretion in particular cases, so as to guarantee both the legitimacy and the effectiveness of this system.


Lines Between Privacy Protection and Criminal Investigation in the Digital Era: Taking the Carpenter Case as the Entry Point

Zhu Jiajun

Abstract: As one of the digital evidences that can reveal a suspect’s behavior trace, Cell-Site Location Information (CSLI) has become a forensics hotspot nowadays. Though involving the personal information of cellphone users, CSLI is factually stored and managed by wireless carriers. As a result, a heated debate has been carried out in the American judicial circle on the privacy and ownership of CSLI, cellphone search by police and the procedural requirements on evidence acquisition by taking the Carpenter v. United States case as the entry point. This case involves not only the establishment of the privacy information standard, but also the equilibrium between judicial efficiency and personal privacy, even issues relating to policing technology in such new fields as cloud computing and the Internet of Things. Therefore, the study of this case not only is conductive to understanding the line between privacy protection and criminal investigation against the background of technical upgrading in the USA, but also provides useful references for the adoption of the standard on privacy protection in China in the digital era.


Reconstruction of Basic System of Corporate Personality in China: Focusing on the Corporate Capital System and the Status of the Board of Directors

Xu Qiangsheng

Abstract: A company has an independent legal personality, which is based on the property system that determines and is independent of the shareholders. Its largest representation and realization is a clearly defined board system for the exercise of corporate power. The principle of property division is undermined by the current system of capital subscription in China. At the same time, the central position of the board of directors as an executive organ is not clear, and the status and power of the shareholders' meeting, the chairman, and the manager are deliberately or unintentionally increased and expanded. In the future revision of the company law, China should abolish the system of registered capital subscription and establish the system whereby the legal capital of the company consists only of shareholder's paid-up capital contribution. Although the Chinese company law adopts the principle of shareholder primacy, the board of directors should still be the center of the company, and the relevant systems should be designed to reflect its due powers, obligations and responsibilities. In this way, the relations between the board of directors and the shareholders' meeting, the legal representative and the manager can be clearly defined. Shareholders should only have the value and significance of shareholders around the company because of their shareholder status, so as to better reflect and realize the company's personality.


The “Sunset Provisions” in the Dual-class Share Structure

Shen Zhaohui

Abstract: The theory of idiosyncratic vision is the one of theoretical bases of the dual-class share structure. The dual-class share structure increases agency cost, whereas sunset provisions are an important system to reduce the cost of the dual-class share structure. From the functional perspective, sunset provisions can be divided into three types. The first type is one that can make cash-flow rights and voting rights less separated. The second type is one supported by the entrepreneurial idiosyncratic vision. The third type, namely fixed-term provisions, is based on the enterprise life cycle theory and the weakness of dual-class share structure corporate governance and aimed at periodically reviewing and transforming the inefficient dual-class share structure. Different legislative approaches should be adopted to achieve different functions of different sunset provisions. For the first two types of sunset provisions, the mandatory provisions of law can be adopted. For the fixed-term provisions, “comply or explain” approach, which is an approach between the free market school and statutory mandatory school, can be adopted. The three major criticisms of fixed-term sunset provisions can also be resolved in the framework of “comply or explain”.


Interpretation Path and Regulation System of "Employee-like Persons" in Internet Platform Employment

Wang Tianyu

Abstract: The existing laws classify labor into two categories: subordinate labor and independent labor, which are regulated by employment law and civil law respectively, thus forming the institutional framework and knowledge system of labor dichotomy. However, with the rise of platform employment, this new form of labor cannot be interpreted and regulated properly with the “labor dichotomy”. All countries in the world are interpreting the existing rules or creating new rules in labor law to deal with the problem of platform employment. The employee-like person theory in Germany could be taken as a path to the explanation of platform employment. According to this theory, labor activities performed by labor providers pertain to "operational labor", with a significant personal attribute. The labor providers are not real market participants. However, their remuneration obtained through the platform has the attribute of the right to subsistence and constitutes their "economic subordination" to the platform - which are consistent with the constitutive requirements of employee-like person. In the construction of the platform employment regulatory system, China should take employee-like person as the orientation and, on the basis of platform employment contract and through the approach of "addition of the civil law", introduce such compulsory protection mechanism as pricing and remuneration protection system, continuous online time control system, occupational risk protection system, and appeal and relief system, so as to fill in the institutional gaps in the labor dichotomy, enrich the legal understanding and expression of and response to labor itself, promote the transformation of institutional framework towards the trichotomy of subordinate labor, operational labor and independent labor, and develop a multi-level labor group protection system.


Causes of Decriminalization in Judicial Interpretation and Their Improvement Logic

Shi Juhang

Abstract: There are a certain number of causes of decriminalization in judicial interpretations of the Criminal Law in China. In terms of type, they can be divided into proviso mode, post-crime plot mode and prevention necessity reduction mode. However, the causes of decriminalization in judicial interpretations have a series of logical flaws, the main manifestations of which are the followings: overstating the function of provisos, leading to the non-substantiation of constitutive elements; inappropriate penetration of criminal policy into criminal law norms, leading to the confusion of the criteria of evaluation of causes of decriminalization; and adherence to the position of overall hazard assessment, resulting in the inability of existing causes of decriminalization to effectively solve the accomplice issues. Based on the standpoint of distinguishing between "wrongfulness from responsibility" and between "responsibility punishment from prevention punishment", the causes of decriminalization in judicial interpretation should be reconstructed. The specific approaches to the reconstruction include: abolishing provisios and strengthen the substantive interpretation of constituent elements to exclude matters that are not worth of the penalty; deleting the post-criminal plot as a cause of decriminalization and, instead, treating it as a cause for conviction with exemption from punishment; changing the role of prevention necessity reduction factors from that of causes of decriminalization to that of causes of sentencing discretion; and confirming the illegality cognition necessity theory, so as to expand the causes of decriminalization of mala prohibita. Through the above reconstruction measures, the concrete causes of decriminalization in judgment practice can be clarified at different levels, the logical expression of decriminalization can be fully demonstrated, and the confusions about the standards on decriminalization can be avoided.


The Theoretical Logic, Application Predicament and Reform of Exclusionary Rules of Unreliable Evidence

Zong Bo

Abstract: China has established through judicial interpretation the exclusionary rules of unreliable evidence, which require “absolute exclusion” of evidences that have flaws in the procedure of evidence collection or in themselves that may affect their authenticity. However, those exclusionary rules have not been strictly applied in practice. When applying the rules, judges often look back and forth between competency of evidence and probative force, and even refuse to exclude evidence on the grounds that the probative force is strong. There are two reasons for this situation. In the aspect of procedure system, the structure of procedure in China is incompatible with exclusionary rules of unreliable evidence. It is impossible to realize the dispersion of fact-finding responsibility, and there is a lack of an effective evidence isolation mechanism. In the aspect of evidence system, there is no clear distinction between competency of evidence and probative force, and there is a lack of necessary exceptions to the exclusionary rules of unreliable evidence. There are several ways to reform the exclusionary rules of unreliable evidence in China, including constructing evidence isolation mechanism under the unitary system of trial structure, improving the exceptional provisions of the rules, transforming the rules into an authorization rules, or transforming the rules into proof judgment rules. Each of these paths has its advantages and disadvantages. China should weigh these advantages and disadvantages and carefully determine the direction of the reform.


The Chinese Transformation of the Social Rights in the Weimar Constitution

Li Fupeng

Abstract: From the perspective of cultural translation, the mindset of fathers of Chinese constitutions can be regarded as a concentrated form of the national cultural context that illustrates the complex mechanism for the cross-cultural circulation of legal information and the formation of legal institutions. In the early 1920s, Zhang Junnai and Li Jiannong not only published the earliest Chinese translations of the Weimar Constitution, but also participated in the drafting of constitutions in the United-province Autonomy Movement. The National Affairs Constitution, drafted by Mr. Li Jianhong, had exerted an influence on the “livelihood plan” in the 1923 Draft Constitution of the Republic of China. From textual translation to constitution drafting practice, Chinese legislators had, through their understandings of the Weimar Constitution and its drafter, Hugo Preuss, embodied the role they set for themselves and profoundly influenced the Chinese transformation of the social rights in the Weimar Constitution. By doing so, they not only uncovered the Chinese mechanism for cultural translation of law, but also created the mechanism for the constitutional integration of Chinese society, namely a policy-oriented model in contrast to the right-based model established by the Weimar Constitution.


Recognition and Enforcement of State-related Judgments in the Hague Judgment Convention

He Qisheng

Abstract: With respect to civil action with the state as a party, the Hague Judgment Convention has made the following new developments: first, under the precondition of not affecting the privileges and immunities enjoyed by the state and its property, the Convention increases the probability of recognition and enforcement of judgments by providing the Convention path and domestic law path to recognition and enforcement; second, the Convention sets up multi-level self-protection mechanisms for the state, such as special exclusions from scope and declaration mechanisms, which have distinct new characteristics; third, the provisions of the Convention on the recognition and enforcement of judgments pertaining to a state reflect the balances between absolute immunity and limited immunity and between promoting the circulation of judgments and self-protection of national interests. In the future, when ratifying the Hague Judgment Convention, China needs to decide whether to make a declaration according to Article 19 of the Convention based on its position on jurisdictional immunity and executive immunity at that time.


Recognition and Assistance of Insolvency Proceedings in Mainland China by HKHC: from the Perspective of the Re CEFC Shanghai Case

Shi Jingxia

Abstract: Given the ever-increasing economic and trade relationship between Mainland China and Hong Kong SAR during the past decades, there has been an urgent need for cross-border insolvency cooperation between the relevant courts. Subsequent to the GITIC case in 2001, in which Hong Kong High Court (HKHC) recognized for the first time the extraterritorial effect of an insolvency proceeding opened by a Mainland court on the debtor’s assets located in Hong Kong SAR, the recent decision on recognizing and assisting CEFC Shanghai Proceeding rendered by HKHC in December 2019 serves as a milestone in the insolvency cooperation between Mainland China and Hong Kong SAR since the Enterprises Bankruptcy Law entered into force in 2007. The CEFC decision indicates that there are two prerequisites for HKHC to recognize and assist a Mainland insolvency proceeding: the proceeding is collective in its nature and it is opened by the court where the debtor is incorporated. Reciprocity is not required for HKHC to recognize an insolvency proceeding opened in other jurisdictions. In comparison with the GITIC case, the CEFC decision for the first time formally recognized the status of bankruptcy administrator appointed in the Mainland proceeding. Accordingly, the assistance granted to the administrator by HKHC includes the powers necessary to fulfill their duties in Hong Kong and the stay of the garnishee order nisi seized by local creditor against the debtor’s assets as well. Cross-border insolvency cooperation is greatly conducive to further promoting the building of a good business environment in Mainland China. Cross-border insolvency has been attached unprecedented importance in recent years. Courts in Mainland China should seize this golden opportunity to adopt an open and practical attitude in this area and actively engage themselves in cooperating with other jurisdictions, including Hong Kong SAR, thereby enhancing the international impact of China’s judicial practice with respect to cross-border insolvency.


The Logic of and the Approach to the Organic Unity of Law-based State Governance and Regulation-based Party Governance

Lin Hua

Abstract: The important proposition of the “organic unity of law-based state governance and regulation-based Party governance” (hereafter referred to as the “organic unity”), put forward in the report to the19th CPC National Congress, poses a major challenge to the traditional legal theory. The theoretical basis, the logical framework, and the implementation path of the organic unity all need to be clarified. Through the analysis of the four fairs of concepts, namely "law" and "Party regulations", "the state" and "the Party", "state-governance" and Party-governance", and "law-based state governance" and "regulation-based Party governance", this article concludes that the basis of organic unity lies in the unity of institution and will, the unity of state power and Party power, the unity of principles of rule of law, and the unity of the governance system. However, the logic of the organic unity needs to be reinforced through the introduction of the concept of law-based exercise of the ruling power, so as to construct the three-in-one theoretical framework of "regulation-based Party governance, law-based exercise of the ruling power, and law-based state governance". The specific paths to the organic unity includes establishing the linkage between Party regulations and state laws at the level of institutional basis, introducing the value and building the norms of law-based exercise of the ruling power at the level of institutional logic, and carrying out coordinated practice of the organic unity at the level of institutional implementation.