CHINESE JOURNAL OF LAW
(Bimonthly)
Vol. 42, No. 5, September 2020
CONTENTS
A New Paradigm of Legal Research Shen Weixing and Liu Yun
On the Function of Rights Zhang Hengshan
The Legitimacy Dilemma of Global Financial Governance and Countermeasures
Liao Fan
The Theoretical Creations of the First Generation of Chinese Marxist Jurists
Cheng Mengjing
Tract Development and Land Expropriation Huang Zhong
The Constitutionality and Substantive Standards of Land Expropriation for Tract Development Cheng Xueyang
Defining the Protection Scope of Fundamental Rights Wang Kai
Preventive Protection Mechanism in Administrative Litigation in China
Luo Zhimin
Restatement of the Nature of the Burden of Proof Hu Xuejun
On Sentencing Recommendation in Cases of Pleading Guilty and Accepting Punishment Chen Weidong
The Withdrawal by the Accused of the Plea of Guilty and Acceptance of Punishment
Wang Haiyan
From “Shangkong” to “Appeal”: the Formation and Transformation of Criminal Appeal System in Modern Chinese History Hu Zhen
A New Paradigm of Legal Research
Shen Weixing and Liu Yun
Abstract: The essence of information technology is scientific computation. Nowadays, the connotation of the word of “computation” has already transcended the scope of traditional mathematical operations, extended to logical reasoning, and become a methodology to observe the world. Computational law science is a new paradigm formed when traditional law science is faced with the phenomenon of "ubiquitous computing" and the epistemology of "computationism". Computational law science is a synoptical legal discipline that studies a variety of critical legal and technical issues revealed in information society on the basis of different objects, methods and abilities of scientific computation. It integrates computational thinking into the research of legal issues, applies computational methods to carry out big data analysis of law, and combines legal research with computational technology to develop a future-oriented legal science and legal technology. The transformation of the "computing paradigm" in law is reflected by the transformation of the governance structure of computing space, which changes from the past authoritative pattern of rule of law into the multi-level governance in the new age, along with the change of legal research method from the qualitative analysis to computational analysis, as well as the transformation of the social governance mode characterized by the integration of law and technology in the computational society. The future development of computational law science calls for the establishment of an interdisciplinary academic community to promote the rule of law in China's information society and to optimize the modernization of research paradigm in today's legal fields.
Keywords: computational law science; inter-discipline; legal paradigm; information society
On the Function of Rights
Zhang Hengshan
Abstract: The ontology of rights, the carriers of rights and the function of rights are the three basic elements in the accurate understanding of the concept of rights. The ontology of right is the justification of rights behavior. It expresses a general approving opinion or attitude of the members of the social group towards a certain behavior. The carriers of rights are the behaviors directed by justness, including self-directed behaviors, behaviors directed to things, behaviors directed to other persons, and behaviors of commanding others. The function of rights is the function of the approving attitude of the social group towards the subject behavior, and it is also the effect of the ontology of rights on the carriers of rights within the framework of the concept of rights. The function of rights can be divided into six specific types, namely acceptance, show of goodwill, show of selection, exclusion, prohibition of infringement, and show of help, which form an integrated conceptual system. The concept of rights cannot be constructed if any one of them is missing. The emphasis of the function of rights is on the expression of “the inviolability” and “the availability of help” of the subject’s behavior to other social subjects.
Keywords: ontology of rights; carrier of rights; function of rights; theory of rights
The Legitimacy Dilemma of Global Financial Governance and Countermeasures
Liao Fan
Abstract: The legitimacy dilemma of global financial governance was fully revealed and drew widespread attention in the global financial crisis. Global financial governance has three defining features, i.e., being crisis-driven, inherently imbalanced, and informal. Closely related to these three features, the legitimacy dilemma of global financial governance unfolds as the “democracy deficit” problem, due process problem, and the validity problem. In the post-crisis era, dominated and urged by the Group of Twenty, the international society and the relevant bodies tried to break the dilemma by improving the representation of the bodies, strengthening the normalization of the procedures, and enhancing the authority of the rules. Those efforts, albeit fruitful, did not solve all the problems. Recently, the growing tendency towards hegemonism, unilateralism and anti-globalization on the part of the United States has posed new challenges to global financial governance. In the future, the international community should firmly stick to the principle of multilateralism, reform the existing multilateral financial governance system, establish and improve such governance bodies and mechanisms as dominated by the emerging countries, enhance the agenda-setting ability of the emerging great powers, and balance the legitimacy and effectiveness of global financial governance on the basis of rethinking the “softness” and “hardness” of the international rules.
Keywords：global financial governance, Group of Twenty, soft law, global financial law, multilateralism
The Theoretical Creations of the First Generation of Chinese Marxist Jurists
Cheng Mengjing
Abstract: The formation of Marxist jurisprudence in the history of jurisprudence of modern China was the most important theoretical achievement made by the first generation of Chinese Marxist jurists, represented by Xie Juezai, Dong Biwu, Li Da, He Sijing, Zhang Youyu and Han Youtong. These jurists accepted Marxism and the theoretical missions of denouncing the old state and its political and legal systems, exploring a new type of state and its political and legal systems, and establishing a "new jurisprudence". Based on the Chinese legal history and the practice of building democracy and the rule of law (the legal system) in modern Chinese history, they put forward and expounded a series of Marxist theoretical viewpoints and disciplinary constructions in various legal disciplines, especially in jurisprudence and constitutional law. They had also formed the theoretical characters of creatively applying Marxism, being practice-oriented and making question-centered discussions and researches. Their theoretical creations have laid the foundation for the construction of the current legal discipline system, academic system and discourse system with Chinese characteristics.
Keywords: Marxist jurists; theoretical creation; creation of disciplines; legal discipline system; discourse system
Tract Development and Land Expropriation
Huang Zhong
Abstract: The Land Administration Law, which was revised in 2019, does not take the narrow view of public interest, but incorporates tract development into the scope of land expropriation. Incorporating tract development into land expropriation helps the supply of public goods, resolves the problem of externalities of land use, and facilitates the distribution of land profit and the implementation of city planning. In fact, tract development is the necessary foundation of industrialization and urbanization in China. Moreover, based on the developmental nature of public interest, incorporating tract development into land appropriation does not necessarily go against the connotation of public interest. On the contrary, it is consistent with the national condition in China. Therefore, Article 45 of the Land Administrative Law is theoretically reasonable. Compared with the four previous subparagraphs of the first paragraph of Article 45 of the Land Administrative Law, the subparagraph on tract development does not have a strong public interest nature and has the risk of being abused. To prevent the abuse of land expropriation in tract development, China should not only exercise prior internal control by planning and approval, but also strengthen external supervision through democratic participation and judicial review, as well as substantive regulation around public goods and distribution of land profit. Local governments are required to provide corresponding public goods, set up pre-procedures for bargaining purchases, introduce mechanism for the compensation for reserved-land arrangement, and reform the land use assignment fee system, so as to provide institutional guarantee for urban-rural integration and the distribution of land profit.
Keywords: tract development; public interest; land expropriation; public goods; distribution of land profit; land value increment tax
The Constitutionality and Substantive Standards of Land Expropriation for Tract Development
Cheng Xueyang
Abstract: The Chinese Land Administration Law, which was amended in August 2019, establishes two kinds of land expropriation: land expropriation for specific public interest projects and land expropriation for tract development. Although the system of land expropriation for tract development is highly controversial, its basic institutional framework is able to pass the “content prescriptive norms” test and the “boundary control norms” test established by the Constitution for the land expropriation system. To ensure the constitutionality of the institutional content of appropriation of land for tract development, the relevant interpretative legislations must strictly define it as construction project needed for "particularly important public interests". According to the theory of transaction cost, the system of land expropriation for tract development can be applied to specific types of construction projects, such as “construction of economic development zones approved by a provincial government or the central government”, “rebuilding of specific villages inside cities” and “comprehensive development projects focusing on public welfare construction”, which meet the standard of "particularly important public interests". However, whether land expropriation for tract development can be applied to the above mentioned specific construction projects is still a question that needs to be answered by such means as quantitative analysis, production of evidence and explanation of reasons.
Keywords: land expropriation for tract development; public interest; transaction cost; constitutionality
Defining the Protection Scope of Fundamental Rights
Wang Kai
Abstract: Defining the protection scope of constitutional rights is the prerequisite of constitutional review of the state's intervention in constitutional rights. To accurately define the protection scope of constitutional rights, it is necessary to distinguish between the de jure protection scope and the de facto protection scope. The former is mainly defined by legislation, whereas the latter is mainly determined by interpretation. In defining the protection scope of constitutional rights through legislation, the state must first determine the core of constitutional rights and define the protection scope around the core of constitutional rights. At the same time, it must also consider the capacity of the state for fulfilling its obligation of guaranteeing constitutional rights. With respect to the de facto protection scope, it is advisable to adopt a narrow definition and give separate interpretations to the factual field and guarantee field of the protection scope. The inherent limitation of constitutional rights is the inherent boundary of the protection scope of constitutional rights, which cannot be overstepped when defining the protection scope. Otherwise it will lead to unconstitutional legislation or unconstitutional interpretation.
Keywords: constitutional review; protection scope of constitutional rights; intervention in constitutional rights; dogmatics of constitutional rights
Preventive Protection Mechanism in Administrative Litigation in China
Luo Zhimin
Abstract: In administrative litigation, the preventive protection mechanism aims to provide effective judicial protection to administrative counterparts. The Chinese Administrative Litigation Law and relevant judicial interpretations currently provide for four institutional measures with the function of preventive protection, namely the stay of execution, advance execution, property preservation, and behavior preservation. However, the functions of these preventive protection mechanisms have not been given full play to in judicial practices because the relevant provisions have the dual purposes of safeguarding public interests and protecting individual interests and the triple functions of supervising administrative organs in administration by law, ensuring the smooth realization of administrative actions, and protecting the rights and interests of administrative counterparts from irreparable damages. Furthermore, no differentiated legal rules have been stipulated for these different functions, the application procedures for different measures are not well laid down, and the constructive elements of discretion prescribed in law are incomplete – all these factors have further reduced the effectiveness of preventive protection mechanisms. In view of the above problems, it is suggested that, in the future revision of the Administrative Litigation Law, China should integrate various institutional measures for preventive protection, further clarify the constructive elements of discretion and the corresponding models of judicial review, refine the procedures of judicial review and introduce an appeal procedure, so as to better satisfy the need of administrative counterparts for preventive protection.
Keywords: preventive protection; stay of execution; advance execution; preservation measures; substantive resolution of administrative disputes
Restatement of the Nature of the Burden of Proof
Hu Xuejun
Abstract: The essence of the concept of burden of proof is the objective burden of proof; the subjective abstract burden of proof is the appearance of objective burden of proof; and the concrete burden of proof is the false appearance of burden of proof. Under the methodology of "normative theory", burden of proof is neither a matter of fact nor a pure matter of law, but a question of "application of law", which links facts with law. Norms of burden of proof refer to norms of distribution of burden of proof. There are many substantive bases of burden of proof distribution, but we should adhere to distributing burden of proof according to formal standards. Norms of burden of proof should come directly from the norms of substantive law, and their essence is supplementary norms of the norms of substantive law. In the face of vague facts of a case, there are many different judicial methods in history. Modern burden of proof is a kind of formal rational system aimed at overcoming the difficulties resulting from unclear facts of a case. Its deepest essence is to solve the fuzzy state of fact cognition by weighing legal values and turn negative and unsolved fact judgments into positive legal value guidance.
Keywords: burden of proof; objective burden of proof; subjective abstract burden of proof; norms of burden of proof
On Sentencing Recommendation in Cases of Pleading Guilty and Accepting Punishment
Chen Weidong
Abstract: As the main mechanism for maintaining and achieving leniency expectations, the sentencing recommendation of the procuratorial organ is the key to the construction of the system of leniency for pleading guilty and accepting punishment. Through the hermeneutic analysis, the expression "shall…generally" in Article 201 (1) of the Criminal Procedure Law can only be interpreted as "shall". However, the association of the provision “the sentencing recommendation is evidently inappropriate” in Article 201 (2) with "other circumstances that may affect a fair trial" in Article 201 (1) can still maintain the judicial organ’s decisive position in sentencing. In the formation of sentencing suggestions, attention needs to be paid to the defense opinion, and the effectiveness of defense is closely related to the fairness of sentencing suggestions. The proposition that sentencing suggestions should "take determined punishment as the rule and range of punishment as an exception” cannot be fully justified. Also, in the absence of detailed sentencing guidelines, it is advisable that procuratorial organs make sentencing recommendations on determined punishment only in simple and minor cases. There are four situations in which the sentencing recommendation should be adjusted. Under these situations, whether “the sentencing recommendation is evidently inappropriate” depends on the court's understanding, and the court has no legal obligation to notify the procuratorial organ to adjust the sentencing suggestion in advance.
Keywords: pleading guilty and accepting punishments with leniency; sentencing recommendation; “shall… generally”
The Withdrawal by the Accused of the Plea of Guilty and Acceptance of Punishment
Wang Haiyan
Abstract: The affidavit of pleading guilty and accepting punishment with leniency contains the element of negotiation and consensus, but its right character should not be ignored. Permitting the accused to withdraw the plea of guilty and acceptance of punishment is an inherent requirement of voluntariness guarantee. As such, it conforms to the spirit of presumption of innocence and the rules of procedure operation and satisfies the need for effectively controlling the risks and remedying the defects in relevant systems. The objects of withdrawal of plea of guilty and acceptance of punishment can be divided into fact, crime, accusation, measurement of penalty and so on and the reasons of withdrawal include withdrawal with cause and withdrawal without cause. When the accused exercises the right of withdrawal, the content of the plea of guilty in affidavit should not be the evidence of guilt, and the negative presumption on the basis of withdrawal should not be made. The effect of withdrawal is “restoration of the original condition or state”. However, the withdrawal may have an impact on the application of compulsory measure, the non-prosecution decision, the trial procedure, the sentencing and so on. In the current context, the right of the accused to appeal should not be deprived, and the application of the principle of appeal with no penalty should not be limited in any way in cases of pleading guilty and accepting punishment.
Keywords: pleading guilty and accepting punishment; withdrawal; appeal with no penalty
From “Shangkong” to “Appeal”: the Formation and Transformation of Criminal Appeal System in Modern Chinese History
Hu Zhen
Abstract: In the legal system reform of the late Qing Dynasty and the early Republican China, the traditional appeal (shangkong) system was replaced by the modern appeal system introduced from the West. On the basis of summarizing the content, characteristics and functions of the shangkong system, this paper analyzes in detail the process of legal transformation of the appeal system from three angles: construction of institutions, evolution of legal terms and the change of legal ideas. The analysis shows that the problems in the implementation of the appeal system in the early Republican China, such as the victim's right to appeal, the certainty of the judgment, the judicial trial level, and so on, are still perplexing the current judicial practice to a certain extent. Tracing the origin of the issues of appeal is conducive to fundamentally understanding the problem and promoting the current judicial reform.
Keywords: shangkong; appeal; transformation of legal system; judicial reform
