(Bimonthly)
Volume 42, No. 2, March 2020
CONTENTS
Space Restriction and Mechanism Reconstruction of Grassroots Law Enforcement
··············· ··············· ··············· ··············· ········································· Chen Baifeng
Historical Formation, Discipline Attributes and Sinicization of Legal Theory
··············· ··············· ··············· ··············· ········································· Lei Lei
The Public Nature of Internet Platform and Its Realization
··············· ··············· ··············· ··············· ········································· Liu Quan
The Scope and Limit of Application of the Principle of Proportionality
··············· ··············· ··············· ··············· ········································· Mei Yang
The Doctrine of the Criminal Responsibility of Organizations and Its Application
··············· ··············· ··············· ··············· ········································· Li Hong
The Systematization of the Criminal Expert System
··············· ··············· ··············· ··············· ········································· Chen Ruchao
The Multi-track Approach to the Construction the Criminal Appellate System in China
··············· ··············· ··············· ··············· ········································· Mou Luye
Judicial Paths and Policy Concern in Courts’ Decisions on VAM Disputes Between Venture Capital and its Portfolio Companies
··············· ··············· ··············· ··············· ········································· Liu Yan
The Validity of Legal Persons' Civil Juristic Acts Based on Illegal Resolutions
··············· ··············· ··············· ··············· ········································· Xu Yinbo
Theoretical Structure of Compensation for Ecological Environmental Damage
··············· ··············· ··············· ··············· ········································· Feng Jieyu
Constructing the Legal System of Social Insurance for Platform Workers
··············· ··············· ··············· ··············· ········································· Lou Yu
Determination of the Knowledge Responsibility of Legal Persons under the Situation of Separation of Knowledge and Behavior
··············································································································Xiao Xin
The Ecology of Execution and Uneven Judgement Execution in Grassroots Courts
··············································································································Yu Longgang
Space Restriction and Mechanism Reconstruction of Grassroots Law Enforcement
··········································································· Chen Baifeng
Abstract:Grassroots law enforcement in China is significantly influenced and shaped by political system and social ecology. “Governance space” is able to simultaneously accommodate both of these two crucial factors, hence has become a new approach to the understanding of and research on grassroots law enforcement. Rural governance space provides specific scenes and atmosphere for grassroots law enforcement, while its characteristics of “crowded society” and “decentralization of power” seriously restrict the improvement of law enforcement ability. By establishing a comprehensive governance system/law enforcement system, the spatial regionalization mechanism realizes integration and regionalization of law enforcement institutions. What’s more, by integrating village organizations, village cadres and grid administrators into the law enforcement system, this mechanism also achieves the boundary division and localization of space. Similarly, it also creates and models varied zoning of time-space on the basis of situational allocation of time and resources. In addition, the regionalization mechanism reconstructs the rural governance space and responds to problems of insufficient law enforcement power and abilities in rural areas. By doing so, it reshapes the grassroots law enforcement and improves its effectiveness and efficiency as well.
Keywords:governance space; grassroots law enforcement; law enforcement power; regionalization mechanism; zoning of time-space
Historical Formation, Discipline Attributes and Sinicization of Legal Theory
··········································································· Lei Lei
Abstract:To break down the barrier caused by excessively dogmatic branch laws, we should deepen and develop the research on legal theory, rather than demanding the unconditional openness of the legal science to other social sciences. A historical study reveals that, three elements, i.e., the shift of scientific paradigm, the decline of traditional legal philosophy and the inner claim of branch laws, constitute the background of this research. Originating from the historical jurisprudence and heralded by the juristic encyclopedia movement in 19 century, legal theory, as an independent branch of legal science, has gone through three stages of development – namely initiation, maturation and diversification, gradually evolving from a kind of analytical legal theory (general doctrine of law) at the initial stage into a comprehensive domain with various approaches. Legal theory is a normative discipline about positive law, which devotes itself to generalization and systematization (i.e. scientific progress) of legal knowledge from the viewpoint of an inner observer and through the study on basic legal concepts. It consists of two parts - theory of law and theory of legal science, and has such functions as systematical construction, legal doctrines criticism and knowledge screening in relation to branch laws, thus can be deemed as ratio juris for branch laws in the sense of both knowledge and method. Legal theory in China had its unique development history and irreplaceable importance today. It should form an interactive relationship with branch laws on the basis of inclusiveness, enhance the integral self-consistency and generality in studies, and strengthen the cooperation and division of labor between methods of analytical legal theory and those of social legal theory.
Keywords:legal theory; general doctrines of law; basic legal concepts; scientificalization; Sinicization
The Public Nature of Internet Platform and Its Realization
··········································································· Liu Quan
Abstract:Internet platforms, as new organizers of the productive force, assume the public functions of maintaining the order of the online market and protecting the rights and interests of users in the era of digital economy. A platform has strong control and influence over its users, especially the operators on the platform, and such platform power is a typical private power. A platform has two major functions for exercising private power. One is to help reduce the negative externalities of operating behaviors within the platform, and the other is to help make up for the lack of government regulatory capacity in the digital economy era. However, the private power of the platform is too big and it is easy for a platform to abuse private power to harm the interests of its users. China must regulate the private power of the platform by giving full play to the regulatory role of market competition and the normative functions of traditional private law and by introducing the principles and the value requirements of public law to moderately intervene in the exercise of this power. In formulating or implementing rules, platforms should follow basic procedural justice and substantive justice standards. The court should conduct the necessary judicial review of the exercise of private power by platforms. And legislators should set up platform responsibilities scientifically and reasonably in accordance with the principle of unity of power, responsibility and profit.
Keywords:internet platform; public nature; private power; platform responsibility; digital economy
The Scope and Limit of Application of the Principle of Proportionality
··········································································· Mei Yang
Abstract: The principle of proportionality is a restriction on the state power that restricts civil rights, and its application needs to meet some specific prerequisites. The principle protects the relative rights of citizens and examines the rationality of the exercise of state power. Non-derogable civil rights and the legitimacy of purpose do not fall within the scope of its application. The principle of proportionality has unique connotation and value function. It should return to its inherent territory of administrative law, and it is neither necessary nor appropriate for it to be widely applied in the fields of civil law, criminal law and other branch laws. In order to adapt to the diversity of state tasks, the principle of proportionality should not only pay attention to burden administrative acts, but also expand its application to beneficial administrative acts and mutually beneficial administrative acts. However, the strict standard of "minimum infringement" and the goal of "balance of legal interests" determine that this principle can only be used to regulate the exercise of administrative power under normal conditions, while its application to the exercise of administrative power in a state of emergency needs to be subject to certain restrictions.
Keywords:the principle of proportionality; protection of human rights; governance of discretion; balance of legal interests; state of emergency
The Doctrine of the Criminal Responsibility of Organizations and Its Application
··········································································· Li Hong
Abstract:Under the premise that China's criminal law clearly stipulates unit crime and its punishment principle, it is of little significance to promote the negation theory of unit crime. In terms of the study of unit crime, an important issue facing Chinese scholars today is how to reasonably identify the unit crime and its punishment principle stipulated in Article 30 and Article 31 of the Chinese Criminal Law under the natural person crime system. A unit is a legal entity formed by the complex combination of people and things and has its own unique cultural temperament and environmental atmosphere, which can influence the thinking and behavior of natural persons in the unit. In the identification and punishment of unit crime under the Chinese Criminal Law, the following two factors must be considered: firstly, whether members of the unit have committed the act or caused consequence of infringement of legal interests in the course of business activities. Secondly, whether the behavior of members of the unit embodies the intention of the unit itself. Only when the business behavior of members of the unit embodies the intention of the unit can the unit take criminally responsibility. In the judgement of the unit's intention, the method of presumption based on objective factors must be adopted, and such factors as the purposes and structures, the decisions of the senior executives, and even the policies of the units must be taken into consideration. When unit business activities produce illegal results, the constitution of the crime of the natural person should be considered first, and the constitution of the crime of the unit can be considered only afterwards.
Keywords: unit crime; intention of the unit; criminal liability of organization
The Systematization of the Criminal Expert System
··········································································· Chen Ruchao
Abstract:Since the promulgation of the Chinese Criminal Procedure Law in 1979, the functions of expert participation in criminal justice in China have become increasingly open and pluralistic. The gradual diversification of expert functions is rooted in the triple internal logic of criminal justice in China: the "cognitive logic" that bridges the knowledge gap between legal practitioners and experts; the "power logic" that realizes the division of labor, cooperation and mutual restriction among public security, procuratorial and court organs; and the "rights logic" that protects the rights and interests of the parties and realizes the equality between prosecution and defense. However, from the perspective of structuralism and holism, there are obvious systematic defects in the criminal expert system in China, which are mainly manifested in the excessive power-orientation, the lack of structure of the expert function and the lack of standardization. The above defects will inevitably affect the potential and quality of the expert system. The system can be improved through the adoption of a systematic approach. First of all, this approach structures expert functions and typifies the pluralistic pattern of expert participation in criminal justice into the binary pattern of expert appraisers and expert assistants. Secondly it highlights the rights dimension of the expert system and rectifies to a certain extent the power-oriented tendency of the system. Finally, it systematizes the expert system to create better institutional conditions for experts to serve criminal justice. With the improvement of the functions of the expert appraiser system and the expert assistant system, it is not necessary to establish the expert juror system in the criminal justice in China at the present time.
Keywords:criminal justice; expert system; persons with specialized knowledge; appraiser; expert assistant
The Multi-track Approach to the Construction the Criminal Appellate System in China
··········································································· Mou Luye
Abstract:It is widely assumed that the defendant’s right to appeal cannot be restricted or deprived. But now it is time to rethink this opinion. Many countries and international conventions, while safeguard the right to appeal, allow reasonable restricts on this right, because the essential nature of the right to appeal only requires the state to ensure that the defendant has an opportunity to have his case heard by the court at the next higher level. The requirement of obtaining leave to appeal is another form of the right to appeal, which separates the right to request leave to appeal from the court’s power of decision on the request and can help avoid the abuse of the right to appeal, control the court’s docket, and maintain the core status of the first-instance procedure. Currently, the introduction by China of the system of the leave to appeal into some cases in which the defendant confesses the crime and accepts the punishment is legitimate and necessity. In the future, China should continue to promote case diversion and explore the establishment of a dual or multi-track appellate system by taking into comprehensive consideration of such factors as the nature of case, seriousness of the crime, confession or not, first-instance procedure and the values and functions of appellate procedure.
Keywords:right to appeal; leave to appeal; confession and acceptance of punishment; judicial hierarchy
Judicial Paths and Policy Concern in Courts’ Decisions on VAM Disputes Between Venture Capital and its Portfolio Companies
··········································································· Liu Yan
Abstract:After Chinese courts shifted their focus from the issue of legal validity to that of enforceability of VAM contracts in VAM cases concerning venture capital and its portfolio companies, they are faced with further inquiries at two levels: firstly, by what kind of substantive standard can the legal obstacles to the fulfilment of obligation by the portfolio company under VAM be judged? And secondly, who is the proper person to make that judgment? Both Huagong Case and the Minutes of the National Courts' Civil and Commercial Trial Work Conference deal with the first inquiry, and applied the principle of capital maintenance to VAM disputes. The current practice of capital maintenance doctrine in China, however, is very crude, without such overall definition as "large distribution" or the idea of bottom line regulation that are common in many other countries. This results in the misery for venture capital requiring redemption under VAM, since the portfolio company has no way to go but operate a costly and burdensome procedure of capital reduction. Alternatively, the insolvency test in many modernized company laws is used to replace the traditional capital maintenance doctrine, carrying out the same task of restricting the outflow of company assets to shareholders in order to protect the interests of creditors. Although more rational in business logic than its counterpart, the insolvency test operates with higher cost and greater uncertainty. As for the second level of inquiry, Delaware Court, as a pioneer and most influential court in this area, has shifted form judicial business judgment to corporate business judgment, thus further highlighting the complex situation of conflict of interest among the company, different types of shareholders and creditors. In this regard, the value balancing and policy choice at the legislative level will ultimately determine the direction of judicial development. The upcoming revision of China's company law should respond to the demands of business world, while venture capital has to assume the risk of investment failure.
Keywords:Value Adjustment Mechanism (VAM); legal obstacle to the operation of VAM; capital maintenance; insolvency test; judicial business judgment
The Validity of Legal Persons' Civil Juristic Acts Based on Illegal Resolutions
··········································································· Xu Yinbo
Abstract:Article 157 of the General Provisions of the Civil Law, which provide for the consequence of void and revoked civil juristic acts, cannot be fully applied to illegal resolutions. The rules of protecting counterparties in good faith provided in Article 85 and Article 94 of the General Provisions of the Civil Law and Article 6 of Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China (IV) are over simplified and too absolute. It is necessary to determine the validity of a legal person's subsequent acts by taking into consideration of the subject, content and illegal factors of the resolution. Within a legal person, illegal resolutions are retroactively invalid, but the validity of subsequent resolutions should be determined according to the discretionary rule and a bona fide third party should be protected according to the principle of relative invalidity. With regard to external acts, if a void resolution results in an act’s violation of mandatory provisions, the validity of the act should be governed by Article 153 of the General Provisions of the Civil Law; the invalidity or revocation of a resolution affects the validity of an external act only if it has led to the act’s lack of legal requirements while legal persons are required by the law to perform certain acts authorized by the resolution. Since different compulsory rules on resolution protect different interests and involve different third parties, it is necessary to distinguish between for-profit and non-profit legal persons and between trading and organizational behaviors, in order to determine the validity of an external act. Different from relative and independent trading behaviors, corporate organizational behaviors are related to third parties and characterized by continuity, so it is necessary to set forth special provisions on them.
Keywords:illegal resolution; invalid resolution; arbitrary behavior; relative invalidity; dispute over the increase of registered capital
Theoretical Structure of Compensation for Ecological Environmental Damage
··········································································· Feng Jieyu
Abstract:Compensation for ecological environmental damage involves the coordination of private law and public law. From the perspective of comparative law, there are two ways to explain the role of private law in the compensation for ecological environment damage. The first is to rely on the violation of existing private rights (such as ownership, health, etc.) to expand the concept of damage to cover ecological interests at the level of the scope of responsibility; the second is to create environmental rights or environmental order rights to cover ecological interests at the level of establishment of responsibility. The two approaches reflect different understandings of the relationship between public law and private law. The former considers public law and private law as parallel reliefs, while the latter considers private law relief as a priority. China's environmental law theory traditionally adopts the second approach, while the Draft Chinese Civil Code and the Plan for Reforming the System of Compensation for Ecological and Environmental Damage tend to adopt the integrated approach to expanding the concept of damage. China is still faced with systemic problems in its current legislation and judicial practice. It should implement the idea of expanding damage and, in the case of environmental tort, consider ecological interests in the scope of liability and apply the general rules of tort law and damages law.
Keywords:ecological environmental damage; environmental right; damage; natural restitution
Constructing the Legal System of Social Insurance for Platform Workers
··········································································· Lou Yu
Abstract:The construction of a social insurance system for platform workers provides a reasonable basic survival guarantee to platform workers and promotes the harmonious and healthy development of the platform economy. The introduction of the concept of "employee-like persons" can provide platform workers with protection similar to that of employees, but it needs to be combined with China's legislation and judicial practice and overcome the low predictability of the labor relationship identification rule through the itemization of labor welfare systems. The economic dependence of platform workers on platform enterprises and the radiation effect of basic rights can be taken as the theoretical bases for the mandatory participation in social insurance system by this group of workers and their “unpacked” participation in different kinds of social insurance. Their working hours, derived from the current legislation and at the same time reflecting the degree of economic dependency, can be used as the standard for platform workers’ participation in compulsory insurance for employees; the types of basic rights corresponding to various types of social insurance are different. Basic medical insurance protects the core rights to life and health. Platform workers should participate in compulsory basic medical insurance for employees, and then be compensated for the loss caused by work injury through the no-fault payment system of basic medical insurance and commercial accident insurance. Although basic pension insurance and unemployment insurance should not be treated as compulsory insurance, it is necessary to properly solve the problem of double payment of basic medical insurance and pension insurance through the basic theory of duplicate insurance.
Keywords:platform worker; labor relations; employment relations; social insurance; duplicate insurance
