GLOBAL LAW REVIEW
(Bimonthly)
Volume 42 September 2020 Number 5
CONTENTS
THEORETICAL FRONTS
Function-oriented Legal Dogmatics: Tradition and Reflections Li Zhongxia
Is Hart a Legal Non-Cognitivist?: An Objection to the Priority of Internal Statements
Luo Yizhong
Statement of Case Fact and Its Construction in Guiding Cases
Yang Zhiwen
Reflections on the Legislative Concepts and Techniques of the Chinese Law on Negotiable Instruments Dong Huijiang
The Jurisprudential Basis of Synergistic Application of the Adult Appointed Guardianship System and the Trust System - An Analysis Focusing on the Management Competence and Obligations of the Property Trustee Zhu Xiaozhe
The Interest Imbalance in Legacy-support Agreements and Its Rectification
Miu Yu
The Intergenerational Features of and Criminal Law Response to Cybercrimes in the Era of Web 3.0 Liu Yanhong
Justification of the Localization of the Theory of Crime in Common Totally
Wang Jun
The Conflict Between the Procuratorate and the Court in Applying the “Should Generally Adopt” Provision and Its Resolutions — Focusing on Normative Analysis of Article 201 of our Criminal Procedure Law Yan Zhaohua
The Relationship Between the Order of Restitution of or Compensation for Crime-related Property and Civil Action: Reflections and Choices Jiang Yin
REVIEW OF FOREIGN LAWS
The IPR Game-playing in the Process of Post-Pandemic “Re-globalization”
Yi Jiming
INTERNATIONAL LAW ISSUES
The Consistency of Treaty Interpretation in International Investment Dispute Settlement: Conflicts in Practice, Rethinking of the Value and Reform Objectives
Jin Ye
Function-oriented Legal Dogmatics: Tradition and Reflections
Li Zhongxia
Abstract: Legal dogmatics (the science of legal doctrine) is faced with huge controversy in China. This controversy stems on the one hand from the stereotypic understanding of legal dogmatics and on the other hand from hesitation of legal dogmatics when facing complex social realities. To solve this controversy, it is necessary to start with the functions of the legal system, to observe the role played by legal dogmatics, and then reflect on the corresponding method application between the closedness and openness of legal dogmatics from the perspective of methodology. The function has two dimensions: one is the function of the legal system in the sense of the society as a whole, and the other is the function of the legal system aimed at achieving social goals. In order to realize its function of "stabilizing normative expectations", the legal system needs to achieve both redundancy and variability and ensure its independent operation, while achieving compatibility with society and realizing its openness on the basis of closedness. Redundancy and variability correspond to different method systems. Only from the perspective of functional positioning can the heterogeneous method systems be harmonized with each other and integrated into the framework of legal dogmatics.
Is Hart a Legal Non-Cognitivist?: An Objection to the Priority of Internal Statements
Luo Yizhong
Abstract: Legal rules offer reasons for action, but if legal statements are merely descriptions of facts, the reasons offered cannot motivate people to act in accordance with law. Legal non-cognitivism, expressivism in particular, hold that law is the expression of specific rule-acceptance, rather than neutral descriptions of certain facts. Thus, legal statements are not cognitive or truth-apt. However, couching Hart’s legal theory in expressivism faces a twofold predicament: firstly, expressivism rests on the priority of internal statements over external statements, yet this view contradicts with Hart’s theory of legal system and the nature of the rule of recognition; secondly, the analogy between expressivism as a moral doctrine and expressivism as a legal doctrine ignores serious disanalogies between the two doctrines. Especially it cannot explain the ontology of law as an artifact. Hence, we cannot define the Hartian theory as expressivism and Hart as a legal non-cognitivist. Meanwhile, by reducing the question of “what is law” to the question of “what is treated as law”, non-cognitivists try to separate the epistemology of law from the ontology. Unfortunately, this attempt has failed thus far.
Statement of Case Fact and Its Construction in Guiding Cases
Yang Zhiwen
Abstract: The facts of the case show different forms in the judicial adjudication. Whether Original disputed facts, or judicially-confirmed evidence facts and element facts are all expression forms of case facts constructed by judicial activities. The fact of a case that becomes the judicial reason and is recorded in the judgment is a kind of case fact as a statement. As the practical guarantee of the application and the binding force on subsequent decisions of guiding cases, the statement of case facts is the logical starting point and analytical benchmark for judging whether the case to be judged and the guiding case are “the same case”. The key of case guidance is to solve identical or similar issues in facts between the case to be judged and the guiding case by analogical reasoning. The statement of case fact can provide the substantial basis for the application of guiding cases. It not only prepares the substantial reasons for determining identical cases, but also stores the substantial factual factors for general judgment and evaluation of similar cases. In making guiding cases, judicial organs should return to the process and scene of judicial adjudication, and construct the statement of case fact with sufficient content from the perspective of law application.
Reflections on the Legislative Concepts and Techniques of the Chinese Law on Negotiable Instruments
Dong Huijiang
Abstract: Among the civil and commercial laws made after the reform and opening up, the Law on Negotiable Instruments is not a very successful one: in terms of legislative policy, restricting personal drafts and excluding the use of commercial promissory notes have affected the function of negotiable instruments; in terms of legislative concept, the causative provisions represented by Article 10 of the Law on Negotiable Instruments fundamentally violate the principle of promoting the circulation and ensuring the payment of negotiable instruments; and in terms of legislative techniques, the law has many mistakes in concept, expression and logical relation, as well as such problems as improper imitation, imaginary innovation and stipulation of rules in other branch laws by overstepping legislative competence. Despite these problems, no fundamental revision or improvement has been made by the legislative organs on this law so far. Moreover, a review of the theories and practices of the negotiable instruments law around the world shows that the Rechtsscheintheorie is the optimal solution to the problems relating to the protection of the third party in non-normality circulation of negotiable instruments. This theory can be upgraded into legal norms and incorporated into the amended Chinese Law on Negotiable Instruments. In this way, the revised Law will be in line with legislative principles and will become one of the leading laws on negotiable instruments in the world.
The Jurisprudential Basis of Synergistic Application of the Adult Appointed Guardianship System and the Trust System - An Analysis Focusing on the Management Competence and Obligations of the Property Trustee
Zhu Xiaozhe
Abstract: Article 33 of the Chinese Civil Code establishes the adult appointed guardianship system to implement the adult’s autonomy with respect to their own guardianship. The adult appointed guardianship system in China should adopt the legal structure of “trust + agency agreement”. The appointed guardian has the right to make arrangements for the ward, while at the same time he must fulfill his duty of care. In addition, the guardian should avoid conflict of interest with the ward. Unless there is a specific agreement between the guardian and the ward, the guardian does not have an obligation to make investment with the property of his ward. Though adults can choose their guardians, there is still a possibility that guardian may infringe upon the ward’s rights and interests. As a result, the trust mechanism has been introduced into the adult appointed guardianship system in both Chinese and foreign legal practice, making use of the trust’s functions of risk separation and purpose-will freezing to separate the personal care from property management, so as to develop a coordination and check and balance mechanism for controlling the ethical risk of the guardian. A trustee has more competence in managing the client’s property than the appointed guardian and consequently also assumes heavier duty of loyalty towards the client. Moreover, a trustee of business trust also has the obligation to increase the trust property through investment. Clarifying the legal dogmatic principles of guardianship and trust is conducive to properly combining the trust system and the guardianship system and solving related legal disputes in judicial practice.
The Interest Imbalance in Legacy-support Agreements and Its Rectification
Miu Yu
Abstract: From the moment that a legacy-support agreement is concluded, the legatee assumes the duty to support the legator and arrange his interment after the legator’s death. The legatee, who is entitled to acquire the legator’s estate after his death, may face the risk of not being able to obtain the estate. The legatee may not be able to obtain the legacy after the legator's death because of the asynchronous rights appearance and the dislocation of the obligation subject. Since there is no implication between the legatee and the legator, the legacy-support agreement is not a bilateral contract, so the dependant does not enjoy the precarious right to defense. Although the right of the legator’s disposition of his legacy by reason of death is restricted after the conclusion of the legacy-support agreement, the current law does not restrict the legator’s disposition of his property inter vivos. To protect the legatee, the third party who obtains the legacy as a gift from the legator is de lege ferenda secondarily obliged to compensate the legatee. The legacy-support agreement is highly dependent on the mutual confidence between the two parties. When the mutual confidence is broken, both parties hold the right of unconditional termination, but the legatee who has fulfilled his obligation in accordance with the contract can claim for restitution of the expense. Of course, the design of the contract terms, such as introducing liquidated damages clause, termination clause and non-disposition clause, is also conducive to balancing the interest between the two parties.
The Intergenerational Features of and Criminal Law Response to Cybercrimes in the Era of Web 3.0
Liu Yanhong
Abstract: Through the symbiotic development from Web 1.0 to Web 2.0, and to Web 3.0, cybercrime and network technology show distinctive intergenerational features. Different from the physical Web 1.0 and Web 2.0 era, the most significant feature of Web 3.0 era is intelligence, and the cyberspace of personalized, interactive and precise application services has also become a crime space, with all kinds of new crimes that also have the characteristics of cybercrime in Web 1.0 and Web 2.0 era emerging endlessly one after another. A great challenge in the application of criminal law to cybercrimes in the era of Web 3.0 is to identify complicated legal interests infringed upon by such crimes, the subjects of criminal responsibility, and the standard of conviction. Correspondingly, criminal theory should apply the substantive injury criterion to decide whether an act of disruption of cyberspace order constitutes a crime, take the possession of infringement of legal interest as the orientation to strengthen the investigation of the responsibility of platforms, rather than individuals, and establish the standard of conviction of cybercrimes by raising, rather than lowering, the dimension of the fight against such crimes, so as to solve the problems of cybercrimes and the criminal law regulation in the Web 3.0 era.
Justification of the Localization of the Theory of Crime in Common Totally
Wang Jun
Abstract: The liability structure of accomplice has the effect of limiting the scope of accomplice. Since accomplice in the narrow sense is based on the theory of causality accomplice, the theory of behavior in common has its advantages in emphasizing the attribution of result. However, the establishment of joint principal offenders requires behavior control and intentional connection, which can be explained only by the theory of crimes in common with its emphasis on mutual attribution of behavior. Nevertheless, under the current Chinese criminal law, all forms of accomplice are a kind of holistic responsibility and there is no room for the theory of behavior in common. Moreover, the theory of behavior in common also has such defects as ignoring the type of constitutive requirements, violating the principle of “In Dubio Pro Reo”, contravening Chinese legislation, etc., which make it hard to be accepted in China. The theory of crime in common partially emphasizes that joint offenders should be recognized within the scope of overlapping constitutive elements. However, the analysis of the structure of constitutive elements shows that this conclusion is possible only between the special relationship and the absorptive relationship. Meanwhile, the Chinese Criminal Law denies the joint offense of negligence and emphasizes the distinction between principal offenders and accomplices within the scope of the same crime. This means that there is neither the possibility nor the necessity for the existence of the theory of crime in common partially in the view of hermeneutics. Article 29 (2) of the Chinese Criminal Law provides a remedy for the deficiency in the theory of crime in common totally. This theory should be advocated because it strictly explains the establishment requirements of joint crime and limits its liability scope.
The Conflict Between the Procuratorate and the Court in Applying the “Should Generally Adopt” Provision and Its Resolutions — Focusing on Normative Analysis of Article 201 of our Criminal Procedure Law
Yan Zhaohua
Abstract: Article 201 of Criminal Procedure Law clarifies to a certain extent the restraint on the court’s adjudicative power by the procuratorate’s power of prosecution in cases of leniency for pleading guilty and accepting penalty, but this article does not change the basic relationship of division, cooperation and mutual suppression between the procuratorate and the court. Whether in the selection of charges, the determination of facts, or the sentencing, the requirement that “the court should generally adopt the charges filed by and sentencing recommendation from the people's procuratorate” means that the court needs to pursue a selective substantive review, to make substantive judgments by loose standards, to try to respect the charge recommended by the procuratorate and accepted by the defense, and to avoid the conflict with the procuratorate. When a conflict is unavoidable, the court can judge according to law only when the case does not meet the basic application conditions of the system of leniency for pleading guilty and accepting penalty or when the charge filed by or sentencing recommendation from the procuratorate is obviously inappropriate. Moreover, before doing so, the court should give the procuratorate an opportunity to adjust its charge or sentencing recommendation. The conflict between the procuratorate and the court in the application of Article 201 can be attributed to such factors as the role transformation resulting from the reform of the system of leniency for pleading guilty and accepting penalty, the difference in the understanding of the application conditions of the system and standards for leniency, etc.
The Relationship Between the Order of Restitution of or Compensation for Crime-related Property and Civil Action: Reflections and Choices
Jiang Yin
Abstract: In view of the loss caused by the criminal's illegal possession and disposal of the victim's property, when the proceeds of a crime cannot be recovered in whole or in part, an order of restitution or compensation becomes a remedy for the victim. When given the force of compulsory enforcement, the order of restitution or compensation once absolutely excluded the filing of another civil action by victim. The Minutes of the National Courts' Civil and Commercial Trial Work Conference rectifies this deviation by listing the exceptional circumstances in which civil action can be filed concurrent with and outside of criminal proceedings. However, this kind of "matter-of-fact" remedy does not touch the fundamental problem of "civil-criminal entity relationship". In essence, the order of restitution or compensation deals with the transfer of legal property between two equal parties - the criminal and the victim. This kind of legal transfer of property should take the act of performance and the right of claim as its theoretical basis, while the natural relationship between civil action and the right of claim is the fundamental guarantee of the act of performance. In this sense, the order of restitution or compensation “has no power” to exclude the right of the victim to bring a civil action. The simply “bundling” civil and criminal relations together through the exercise of public power results in the confusion of the function of criminal prosecution and the remedy for victim's property loss, thus going against the basic principle of legal property transfer. Only by positioning the order of restitution or compensation as a convenient procedure with the victim's voluntary consent and by giving the victim the right to choose the procedure, can the victim’s right to bring a separate civil action be conditionally excluded, so that the civil-criminal relationship under the system of order of restitution or compensation can be fundamentally straightened out and the coordination between the order of restitution or compensation and civil action can be realized.
The IPR Game-playing in the Process of Post-Pandemic “Re-globalization”
Yi Jiming
Abstract: The phenomenon of “anti-globalization” caused by the COVID-19 pandemic is temporary. It actually accelerates the existing process of “re-globalization”. The pandemic has aroused public concern on public health, biodiversity, traditional knowledge and other public issues. It has also deepened people’s understanding of intellectual property protection, which can help developed and developing countries to strike a balance between the protection of the private intellectual property right and public interests. In process of post-pandemic “re-globalization”, China should, firstly, attach importance to the development of new and high technologies, such as biology, information and new materials, broaden the scope of intellectual property protection, and pool global innovation resources; secondly, uphold WIPO and the WTO/TRIPS multilateral mechanism and promote their reform, and embrace a new international intellectual property order that is more open, more inclusive and fairer; thirdly, make the most of the opportunities brought about by the international cooperation on epidemic prevention and control to expand China’s circle of friends through bilateral, peripheral and “small multilateral” mechanisms and develop trade and economic relations with other countries; and fourthly, deepen the reform and opening up, give full play to the role of IPR protection in stimulating innovation and improving business environment, and actively participate in global IPR governance.
The Consistency of Treaty Interpretation in International Investment Dispute Settlement: Conflicts in Practice, Rethinking of the Value and Reform Objectives
Jin Ye
Abstract: The lack of consistency in treaty interpretation is a prominent problem in international investment dispute settlement that has attracted much attention in the process of reform and development of international investment legal rules. In practice, however, arbitral tribunals and sovereign states have different views on the consistency of treaty interpretation in the settlement of international investment disputes. The inherent contradictions in the process of law interpretation and the uncertainty of the rules of treaty interpretation have led to the inevitable results of inconsistent treaty interpretation, while the fragmentation of international investment legal system and value conflict have aggravated this inconsistency. In the process of international investment dispute settlement, although consistent interpretation of treaties has the important value of ensuring equality, stability and predictability, the pursuit of consistency should not undermine the accuracy of treaty interpretation. The impact of the lack of consistency in treaty interpretation on the ISDS mechanism also needs to be objectively evaluated. The inconsistency of investment treaty interpretation can be divided into inconsistency in the interpretations of identical treaty provisions and inconsistency in the interpretations of similar treaty provisions. The former needs timely and effective correction. The latter is a normal phenomenon under the current international investment legal system and arbitration mechanism, but the conflict of treaty interpretation in double remedies needs to be prevented.
