Chinese Journal of Law(4-2020)



On the Normative Principles of the Political-Legal System in China


Huang Wenyi


Abstract: As the most iconic institutional category in contemporary China, the political-legal system refers to the grand governance structure under the leadership of the ruling party, in which the political-legal organs and various governance subjects work together to build a safe China and a China under the rule of law. The historical evolution from the classical rites-law tradition to the modern political-legal system reflects the consistent political concerns of and ideological explorations by Chinese politicians and thinkers on the rise and fall of state governance. From the perspective of frame structure, the basic structure of the political and legal system can be broken down into three groups of principal axis relationships, namely, the relationships between political-legal organs, the external relationships of political-legal organs, and the relationships between the ruling party and political-legal organs. These three groups of normative principles constitute the basic principles of the system design and practical operation of the political-legal system. Among them, the normative principles of the first group of relationships include self-integration, division of labor and responsibility, mutual cooperation and mutual restriction; the normative principles of the second group of relationships include social autonomy priority, grass-roots governance priority and front-end governance priority; and the normative principles of the third group of relationships include macro leadership, centralized leadership and law-based leadership. The analysis of these three sets of normative principles shows that the political-legal system not only follows the general law and common mechanism of modern state governance, but also embodies the local experience and unique wisdom of China's state governance.

Keywords: politics and law; rites-law; rule of law; political-legal system; state governance


The Judicial Reshaping Effect of Artificial Intelligence and Its Limits


Ma Changshan


Abstract: The judicial application of artificial intelligence (AI) technology is giving rise to the historical transition from “access to justice” to “visual justice”, leading to profound reform of the judicial operational mechanism and reshaping the judicial process through recreated scene, digital coding of legal texts, modeling of judicial decision making and intelligent service management, thereby greatly improving the social efficiency of intelligent justice. However, the application of AI in the judicial realm has its inherent limits. For instance, algorithmic decision making is not fully capable of absolute objectiveness and accuracy. When dealing with sophisticated and complex cases, it can promote procedural justice, but it’s faced with great difficulties in realizing procedural justice. In order to give full play to the function of AI in optimizing and reshaping the judicial process, it is necessary to regulate the use of AI and minimize its risks, establish regulatory and remedial mechanisms for algorithmic decision making, introduce the ideas of openness, fairness and accountability, give full play to the advantages of technology and eliminate its harmful effect, promote “tech for social good” and the positive development of smart court, and better realize “visual justice”.

Keywords: judicial AI; visual justice; digital justice; smart justice


Judicial Application of the Hierarchical Order in the Principle of Proportionality


Jiang Hongzhen


Abstract: Hierarchical order constitutes the normative connotation and operational path of the principle of proportionality and provides an important foundation for adjusting the relationship between the purpose and the means of this principle. Different from the theoretically constructed "three-order model", there are at least three types of hierarchical order in the principle of proportionality in China's judicial practice: "full application of three steps", "interceptional application of necessity principle" and "abstract application of proportionality doctrine as a whole". The diversified representation of hierarchical order in judicial practice is related not only to the independence and subordination of sub-principles of proportionality, especially the least restrictive approach required by the necessity principle, but also to the characteristics of hierarchical order theory itself. The "explicit" and "hidden" natures of the hierarchical order structure adopted in individual cases also reflect to some extent the willingness of judicial organs to intervene in administrative decisions through judicial review. In recent years, the intensity of judicial review and its definition standards have been developed in Chinese judicial practice, thus influencing the local application of the principle of proportionality. As one of the overwhelming basic principles in public law scheme, the principle of proportionality will play an increasingly important role in the protection of citizens' legal rights and interests. In the future, the principle of proportionality will develop from diversified modes of application of the hierarchical order to multiple choices of the intensity of judicial review.

Keywords: principle of proportionality; hierarchical order; judicial application; intensity of review


The Historical Status and Legislative Characteristics of the Chinese Community Correction Law


Wu Zongxian


Abstract: The promulgation of the Community Correction Law on December 28, 2019 was a major event in the development history of community correction system in China. This law is probably the first community correction law formulated by a national legislature in the world and has an important historical status in the development of community correction in China, even in the world: it sets up a new milestone in the development of community correction in China, stipulates the basic legal system of community correction with Chinese characteristics, and enriches the content of community correction in the world. These institutional arrangements with Chinese characteristics not only embody the institutional innovation based on the reality of Chinese society, but also contribute the Chinese wisdom to the development of community correction in the world. At the same time, there are many bright spots in the provisions of this law that reflect better legislative characteristics, including the adoption of a better legislative structure, the establishment of a system to help convicted criminals and make their life easier, the establishment of social participation mechanisms, the affirmation of the value of full-time social workers, and the establishment of a service purchase system.

Keywords: community correction; Law on Community Corrections; social participation


Solutions to the Substantive Problems of Intersection of Criminal Law and Civil Law


Chen Shaoqing


Abstract: The roots of substantive problems of intersection of criminal law and civil law are the questions of whether the application of norms of criminal law and those of civil law affect each other and to what extent they affect each other. The systematic orientation and application defects of the concept of civil offense, together with the loss of substance of the principle of unity of legal order at the illegality level, leads to the lack of rationality of the "Illegality Theory". The real intersecting point of criminal law and civil law is not illegality, but legal effect. This paper takes the evaluation object as the main line, and shifts the approach to the problems from that of "Illegality Theory" to that of "Legal Effect Theory". The risk of legal effect incompatibility can emerge only when legal facts evaluated by criminal law and those evaluated by civil law are identical. In such cases, if the normative purposes of criminal law and civil law are consistent, that is to say, when the sanction or protection of the legal subject under criminal law and that under civil law are in the same direction, a comprehensive consideration of the legal effects of criminal law and civil law would be sufficient. Conversely, if the normative purposes of criminal law and those of civil law are clearly opposed to each other, that is to say, when the sanction or protection of the legal subject under criminal law and that under civil law are in opposite directions, the application of criminal law and that of civil law need to be separated at the level of facts of the case, so as to define different types of cases for the normative application of criminal and civil law. Under this situation, the relationship between criminal law and civil law changes from intersection back to separation.

Keywords: intersection of criminal law and civil law; Illegality Theory; Legal Effect Theory; unity of legal order; legal facts


Controlling Shareholders and Their Legal Regulation in CorporateGovernance


Zhao Xudong


Abstract: The main contradiction in the corporate governance in China is the contradiction between controlling shareholders and minority shareholders. The major defects in the current corporate governance system in China include the serious disconnection between the legal subjects and actual subjects of corporate governance and the failure to bring controlling shareholders into the scope of corporate governance and to impose corresponding legal regulations on them. This paper proposes that an important direction of corporate governance in China is to build a governance structure and mechanism with the controlling shareholders as the core, conform to the actual equity structure and corporate governance practice, design scientific, reasonable and systematic legal rules on the exercise of controlling power by controlling shareholders to ensure the lawful exercise of such power, and give full play to the unique positive role of controlling shareholders in corporate governance. The main purpose of corporate governance is first and foremost to curb the abuse of the controlling power by the controlling shareholders, while at the same time reasonably guide and regulate the exercise of such power. The authority representation mechanism proposed in this paper in which the controlling shareholder is entitled to solely exercise the power of shareholders' meeting is an important way to innovate China’s corporate governance system and regulate the exercise of controlling power.

Keywords: corporate governance; controlling shareholders; abuse of power; majority rule; fiduciary duty


The Civil Law in an Age of Value-added Tax


Ban Tianke


Abstract: The reform program aimed at replacing business tax with value-added tax has been expanded nationwide. The neutrality of value-added tax cannot be realized without coordination with the civil law system. If a payee refuses to issue an invoice in a transaction, judicial organs should grant the payer the right to claim invoice in accordance with the rules of contract interpretation as well as the right of lien in accordance with the principle of good faith, so as to ensure the payer’s right of deduction and reduce his taxation cost. When tax policy changes, the performance of the original contract would hinder the efficient passing-on of tax burden in the case of tax increase and harm the payer’s right of deduction in the case of tax reduction. Judicial organs should timely adjust contract prices to reduce the value-added tax burden of enterprises with the right of deduction. The courts’ reluctance to apply the rule of changed circumstances would hinder the taxation reform from achieving its goal of tax reduction.

Keywords: value-added tax reform; the principle of neutrality of value-added tax; right to claim invoice; right of lien, changed circumstances


Systematic Rules on Good Faith Identification in Private Law


Shi Yifeng


Abstract: Good faith in reliance protection is widespread and diverse in private law. Essentially, good faith is a result of the evaluation of the cognitive state of private law subjects, which manifests itself as not knowing the inconsistence between presentation and the real situation of reliable facts. Based on the history of good faith and the characteristics of its identification process, the identification of not knowing should belong to legal value judgment, in which the measurement of benefits can be balanced by the element of negligence. In view of the commonality of the characteristics and the identification of good faith, it is necessary to construct systematic rules on how to identify good faith on the basis of the reliability worthiness of reliable facts, so as to resolve disputes over the identification. The degree of general reliability worthiness is the basis of the hierarchical distinction between general types of identification of good faith, and the normative standards thus formed take negligence as the element of hierarchical coordination. The degree of general reliability worthiness, coupled with the influencing factors of special reliability worthiness, determines substantive considerations and the choice of procedural methods in specific identification of good faith. In this way, the elements of substantive judgment of not knowing and not knowing due to factors other than negligence, as well as the procedural methods of general presumption and conditional presumption can be formed, and the systematic rules on good faith identification guided by systematic thinking can be ultimately established.

Keywords: identification of good faith; reliable facts; general reliability worthiness; special reliability worthiness; systematic rules


Backup Repurchase Contract as a New Risk Transfer Mechanism Different from Security


Wang Wensheng


Abstract: In a financial leasing repurchase contract, the repo obligee has the right to demand the obligor to pay the repurchase price when such conditions as delayed performance of obligation by the third party are met. The same is true for commercial housing mortgage loan repurchase contract. The essence of such contracts is that the repo obligee transfers the risk of the third party’s default to the obligor. In other words, a repurchase contract is the backup of a repo obligee for his obligatory right to the third party, so it can be called “repurchase contract as backup”, which is very different from guarantee contract. Therefore, the rules for guarantee contract should not be applied directly or by analogy in a repo case. In fact, repurchase contract as backup can be a combination of multiple modules, including assignment of obligatory right, simultaneous transfer of contractual rights and obligations, sales, and agreed right of formation. It provides a new mechanism for the creditors in an installment contract to leave without any trouble when the transaction encounters frustration.

Keywords: repurchase contract; financial leasing; mortgage loan; security; guaranty


The Employee’s Freedom of Speech in Social Media and Its Restriction


Xie Zengyi


Abstract: In recent years, there have been many cases of dispute between the employee and the employer in China resulting from the speeches made by the employee in social media. Freedom of speech is a basic right of citizens and therefore should also be protected in labor relations. However, the employee’s freedom of speech may conflict with the employer’s rights and interests and therefore should be restricted. From the perspective of labor law, the restriction on the employee’s freedom of speech is based on the employee’s duty of loyalty to his employer. Therefore, the employee’s freedom of speech needs to be balanced with his duty of loyalty and his employer’s rights and interests. In judicial practice, Chinese courts generally consider the various factors of the employee’s speech behavior in social media in judging the legitimacy of the speech. Since the freedom of speech is a basic right and the content of the employee’s duty of loyalty is flexible, establishing the boundaries of the employee’s freedom of speech requires an examination of the “four key factors” and related details of employee’s social media behavior in individual cases, including whether the behavior is in compliance with the employer’s rules on social media and the motivation, consequence and plot of the behavior and then a consideration of whether the employee’s behavior harms the employer’s interests, and whether the employee violates his duty of loyalty, which are used to judge whether the employee’s social media behavior is beyond the limit of freedom of speech and whether it is legal or not. The disciplinary measures taken by employers on employees’ social media behavior shall comply with the principle of proportionality and other principles.

Keywords: employee; social media; freedom of speech; duty of loyalty; internet


The Historical Structure and Operational Results of the “Censor’s Supervision” System in Ancient China


Ming Hui


Abstract: In ancient China, the “censor’s supervision” system was not only an important part of the political system that reflected the allocation and the counter-balance of government powers, but also one significant link in the operation of the political system that embodied the emperor’s control and use of government powers. The creation of censors and their supervisory function were exactly the important institutional embodiment of the power-control theory. Historically, the “political system” consisted of both static structure and dynamic operation. If it can be said that, from the static point of view, the appointment and the functions of censors constituted an important human element and the evolution of the circuit supervision system and the classification of supervision districts and levels constituted a main institutional element of the “censor’s supervision” system, then, from the dynamic point of view, the impeachment of censors and its substantial results, and the independence and the limitation of censor’s supervision constituted a necessary practical element of this system. The later integrated the former two in a harmonious way and promoted the effective operation of the censor’s supervision system, thus playing an indispensable role in maintaining the balance of the structure and operation of the political system and upholding the political order in ancient China.

Keywords: censor; circuit supervision; results of impeachment; independence and limitation