Global Law Review(4-2020)




The Dogmatic Approach to the Preventive Expansion of Biological Criminal Law


Jiang Tao


Abstract: With the development of the COVID-19 epidemic and the spread of epidemic-related crimes, the preventive expansion of judicial practice and the preventive expansion of judicial interpretation have become the development trend of criminal law applicable to epidemic-related crimes. The reason for the preventive expansion of biological criminal law is that this law relies heavily on abstract dangerous criminal and dangerous liability, which brings about the difficult problem of judgment of illegality and responsibility of biological crime. The heavy reliance of biological criminal law on the legislative technique of abstract dangerous criminal and the formation of the paradigm of preventive criminal law are reasonable and necessary for meeting the objective need of the criminal law to reasonably control biosafety risks. To deal with the preventive expansion of biological criminal law correctly, we need to clarify two points from the perspective of legal doctrines. One is to adopt the causality of epidemiology in the theory of epidemiological causation, and incorporate the fear theory into it, so as to appropriately tilt the balance of the value of biological criminal law towards the principle of prevention; the other is to incorporate the dangerous liability into the responsibility judgment of biological crime, properly emphasize the preventive expansion of “pocket crime,” and reasonably limit the scope of "allowable risks".


The Procedural Pattern of Cases Involving Pleading Guilty and Accepting Punishment with Leniency: An Analysis Centered on Examination and Prosecution


Li Fenfei


Abstract: With the advancement of judicial reform projects such as the trial-centered reform and the system of pleading guilty and accepting punishment with leniency (PGAPL), the criminal case-handling mode is showing two mutually exclusive and coexisting procedural patterns: the trial-centered pattern and the prosecution-centered pattern. Cases involving the PGAPL are typically prosecution-centered. The manifestations of this procedural pattern include: the implementation of the PGAPL is mainly based on the process of examination and prosecution; the core principle of this pattern lies in effective sentencing negotiation; and the sentencing recommendation resulting from the negotiation between the prosecution and the defense is generally adopted by the court. The justifications for this procedural pattern rest with the reasonable allocation of judicial resources, the position of examination and prosecution as a connecting link in criminal proceeding, and the considerate obligation undertaken by procuratorial organs. Of course, this procedural pattern still has some problems and needs to be further improved by ensuring that the considerate obligation is effectively performed by procurators, promoting the subject status of the accused in litigation, and raising the level of precision of sentencing recommendation.


Reflection on and Reconstruction of the Theory of Unit Criminal Liability


Li Bencan


Abstract: In recent years, the research on unit criminal liability has demonstrated prominent characteristics of normalization. Meanwhile, the theory of vicarious liability has been quietly reintroduced on the basis of the need to prevent unit crimes. From the perspective of articles 30 and 31 of the Chinese Criminal Law, a unit should be responsible for its own acts, rather than the acts of others. The liability of a natural person is a constitutive element of unit liability. This means that neither the system liability theory based on the normalized approach nor the vicarious liability theory based on the natural approach is desirable. The organizational liability theory is correct in the general direction, as it conforms to the responsibility-principle. The organization here equals to the collective leadership and the organizational liability is the liability of the collective leadership. Employees with no decision-making power are only objects of observation or reference materials of the organizational liability, who associate themselves with a unit crime in the form of joint principal offender or individual negligence. Based on the functional orientation of “reference material”, organizational liability can be deduced from lawful act of employees without the need to identify employees with no decision-making power or to determine whether their acts have met the constitutive requirement of a crime. The equation of “organizational liability = collective leadership liability” can be established only within the scope prescribed by law. Under the condition that a unit commits a non-unit crime, the punishment of the natural person does not constitute retrogression of legal norms or anti-dogmatics, but is in conformity with other dogmatic rules. The construction of dogmatic rules of unit criminal liability can not only benefit the distinction between unit crime and natural person crime, but is also of important theoretical value to the distinctions between crimes and none-crimes and between different kinds of crimes under the condition where “a unit is taken as the crime object”.


The Traditional Logic of and Explanatory Approach to the Law-Fact Distinction in Criminal Procedure


Gong Hanbing


Abstract: The distinction between fact and law serves the functional need of pragmatism and its traditional logic shows certain similarity throughout the world. On the one hand, there are dilemmas and controversies in theoretical classification research, and even difficulties in clearly distinguishing between the concepts of "fact" and "law" themselves; on the other hand, the two concepts are tightly bound to each other in practice and institutions, and the development of jury system and trial level system in the context of judicial reform has almost been mixed with the research on the distinction between fact and law. In China, the distinction between fact and law is closely related to the division of the function of different trial levels and the competences of different trial subjects. This relationship has attracted new attentions with the promulgation of the Law on People’s Assessors, although its rationality and actual connotation have not been clearly expressed. The similarity between fact and law in epistemology conceals some of their structural differences manifested in the reasoning form of evidence reasoning and narrow sense legal reasoning, as well as in value orientation and formation mechanism. These differences are the profound embodiment and internal motivation of judicial rationalization, the essence of which is the fundamental significance of fact and the truth value contained in fact to the modern legal system. They are the functional products of distributive theory, and aimed at repairing the “rapture” between the identification of fact and application of law.


Systematical Structure of the Main Effect of Defense Rights


Shen Haien


Abstract: In view of the different legal effects of different defenses, it is necessary to reconsider the dominant theory that the main effect of defense is to hinder the enforceability of claims. The system of the main effect of defense is structured by two elements: time and degree of hindrance. The differences between peremptory defenses and dilatory defenses mainly lies in their time element, while claim-limiting defenses and defenses of contemporaneous performances with self-determination condition are distinguished by their degree of hindrance. Since the main effect of defenses is to hinder the enforceability of claims, any channel through which a claim may be enforced can be blocked by defenses, no matter whether it is a claim or not. However, the defense of contemporaneous performance and the defense of uncertainty will not hinder the claim and its enforceability as a whole, because their effect on the civil procedure law will be a contemporaneous performance judgement, which is just one verdict with contemporaneous performance condition, rather than two performance judgements during the same period. Therefore, the main effectiveness of the defense can form an organic system: in terms of the object, that is "the effectiveness of the right of claim + the effectiveness of the right of claim substitution". In terms of the action path, that is, "the hierarchy in the time dimension + the hierarchy in the range/degree dimension". As far as the field of action is concerned, it is "the effect on substantive law + the effect on judgment".


The Trust Responsibility of Pension Fund in the Trend of Responsible Investment


Yin Di


Abstract: The responsible investment of pension fund is a part of the construction of green financial system in China. To implement responsible investment in the face of changing economic and social conditions, it is necessary to re-interpret the fiduciary responsibility of pension fund trustees. Although the theoretical connotation of the existing pension fund fiduciary responsibility is no longer contrary to the concept of responsible investment, its extension is insufficient to integrate the whole process of pension fund responsible investment, thus leading to the decision-making evaluation problem under the overlapping of marketization and policy elements and the principal-agent problem under the combination of multiple legal relations. The root cause of these problems is that the fiduciary responsibility was constructed without considering the initially existing structure of ethics, which leads to the partial absence of fiduciary responsibility and the deficiency of standards in pension fund investment legislation. Incorporating practical rationality elements of the trustee into fiduciary responsibility and clarifying its institutional expression is a way to restate the trust responsibility of pension fund and promote the active implementation of responsible investment by the trustee. It also provides theoretical support for the construction of a regulatory and guidance framework covering new disclosure rules, prudent process standards, flexible voluntary norms and management models that can avoid inappropriate intervention.


The Improvement and Construction of the Stock-pledging System in the Chinese Civil Code: Its Linkage with the Securities Law


Wang Lebing


Abstract: There are generally two forms of stock pledge transactions in domestic and international capital markets: “security financial arrangement for the pledge of stocks” and “title transfer financial collateral arrangement for the pledge of stocks”, and the “direct ownership” and “indirect ownership” of listed stock have an important influence on the construction of the system of transfer and pledge of stocks in different markets. The special institutional advantages of “title transfer financial collateral arrangement for the pledge of stocks” make such stock pledge more competitive in the capital market, while contributing to the accumulation and dissemination of systemic risks in the securities market in China. The 2015 financial turmoil in Chinese stock market and the 2018 forced liquidation of stock pledges of listed companies could be partly explained by the absence of relevant rules in the Property Law and the Securities Law, the lack of effective regulation, and the poor understanding of the method, scale and transactional logic of the entry and exit of various kinds of structured capital into the stock market. The Book of Property Law in the Chinese Civil Code should provide for the basic framework of and rules on the pledge of stocks, while the Securities Law should establish a public regulatory regime, which should be accompanied by a dynamic financial justice system, so as to maintain the stability of the capital market.


Restrictions on and Revision of the Presumption of Non-existence of Government Information


Zhang Liang


Abstract: The connotation of “non-existence of government information” in the Regulations on the Disclosure of Government Information has been expanded in the long-term practice since the implementation of the Regulations, but the inappropriate application of this provision by administrative organs may infringe upon citizens’ right to know and undermine government credibility. Correspondingly, the judicial review rule presuming “government information not found through reasonable search” as "non-existent government information" was adopted when the Regulations on the Disclosure of Government Information was revised in 2019. However, the reasonable-search obligation is merely a compromised judicial technique created to alleviate the dilemmas of distribution of burden of proof. In the absence of a sound system for the implementation and a relatively uniform standard for the examination, it is also difficult to determine reasonable search behavior as the prerequisite for the presumption. The Guiding Case No. 101 of the Supreme People’s Court introduces the counter-evidence rule, which take preliminary evidence as the core. This rule makes it possible to limit the presumption of non-existence of information, to take “preliminary evidence” and “surrender” as essential elements to construct a three-level progressive judicial review mode, and to conduct conditional and in-depth review of the reasons of the non-existence of the information. On this basis, it is also possible to promote the fundamental resolution of disputes over “the non-existence of government information” by strengthening the external litigation supervision mechanism and establishing the linkage between the development of e-government affairs and the reform of the government information management system.


Review of and Reflections on the Personal Information "Opt-out" Mechanism


Feng Kai


Abstract: The personal information "opt-out" mechanism has changed the traditional consent authorization mode, transferring the specific obligations originally undertaken by the user to the obligee. If the obligee cannot take effective action, the "implied consent" will become legally effective. In order to strike a balance between the personal information protection and the free flow of information, it is necessary to give a broad interpretation to consent, so as to incorporate the "opt-out" mechanism into personal information law, make up for the deficiency of the consent authorization mode, and meet the practical needs of reducing economic costs and reasonably allocating information resources. However, there are still different opinions on whether "opt-out" constitutes a "consent". The unclear nature of the right holder's objection and defective notification by the information processor have weakened the right of control over personal information. When introducing the "opt-out" mechanism into the personal information law, it is necessary to make the following amendments: firstly, to explain the "opt-out" in the context of "broad consent", so as to eliminate the theoretical obstacles to incorporating the implied consent rule into the consent system; secondly, to emphasize the information subject’s right of objection and ensure the completeness of user's performance of the obligation to inform; and thirdly, to strictly stipulate the applicable conditions of "opt-out" mechanism, so as to avoid its improper expansion. On the basis of these amendments, the "opt-out" mechanism should be incorporated into China's personal information protection law, so as to meet the practical needs.


The Extraterritorial Application of Domestic Law in US Judicial Practice and China’s Response


Han Yonghong


Abstract: Compared with the rules on exterritorial application of international law and the domestic laws of other countries, the system of relevant rules developed by the U.S. through long-term legislative, law enforcement and judicial practice are more detailed and complicated. By surveying U.S. precedents since “Morrison v. National Australia Bank”, this article explores the U.S. rules on the exterritorial application of domestic laws, focusing on such principles as “presumption against extraterritoriality”, “sufficient contact” and “due process”, as well as the logic relations among them. However, different approaches taken by U.S. courts at different levels to the interpretation of statutes, the balance of national interests and the clever choice of applicable rules by the U.S. administration still make it hard for foreign entities and individuals to reasonably foresee the result of exterritorial application of U.S. laws in a given context. In view of the U.S. practice, this article puts forward suggestions on improving the exterritorial application of Chinese laws from the perspectives of constructing defensive and aggressive institutions. A general legal basis for the exterritorial application of Chinese laws should be provided by amending the Legislation Law. Meanwhile, Chinese courts should take the initiative to develop the exterritorial reach of national laws on a case-by–case basis, so as to strike a balance between international law and national law, between Chinese national interests and interests of other nations, and between national law and national policy.


Treaty Withdrawal Mechanism: Legal Dilemma, Jurisprudential Interpretation and the Chinese Approach


Jiang He


Abstract: As treaty constitutes one of the major sources of modern international law, the practice of its withdrawal influences the efficacy of international law. In recent years, some Western countries’ withdrawals have highlighted the legal dilemma of the treaty withdrawal mechanism. The diachronic and synchronic analyses of the theory and practice of treaty withdrawal reveal the uncertainty of the mechanism. This structural problem is rooted in the openness of international law and its dual jurisprudence. Generally speaking, the principle of sovereign equality of states serves as a legal basis for the withdrawal from treaties, and the basic values of international law and international politics in the sense of sovereign equality become the legitimacy basis of withdrawal. The withdrawals from treaties by such countries as the United States and France shows that the legality and legitimacy of treaty withdrawal are not correlated under certain circumstances. Although the diplomatic practice of power politics may somehow provide the legality for the unilateral withdrawal from treaties, the lack of jurisprudential legitimacy results in the conflict between legality and legitimacy, and leads to the return of international relations to a “state of nature”, which consequently threatens international peace and security. Against the backdrop of the rising of populism internationally, the conception of a Community with a Shared Future for Mankind, initiated by China, is conducive to the formulation of soft international law. It promotes the interaction between the balanced politics of great powers and the rule of international law by emphasizing human subjectivity and basic values of international law, thereby improving the treaty withdrawal mechanism through the coordination between the principle of pacta sunt servanda and the principle of sovereign equality of states.