CHINESE JOURNAL OF LAW
(Bimonthly)
Vol. 41, No. 4, July 2019

CONTENTS

 

Six Dimensions of Innovative Development of Chinese Theory of the Rule of Law in a New Era Li Lin

The Co-governance Pattern-oriented Form of the Rule of Law and Its Construction

Du Hui

On the Civil Disciplinary Relationship Wang Zhigang

Reconstruction of the Relationship Between Guardianship and Legal Capacity under the Guidance of the Idea of Modern Guardianship Peng Chengxin and Li Bei

Exceptions to Disclosed Agency and the Corresponding Legal Effects Zhu Hu

Validity Defects in the Conclusion of Marriage Li Hao and Wang Wenna

Approaches to the Construction of a General Clause on the Determination of Industrial Injuries Zheng Xiaoshan

The Criteria of Elucidation of the Change of Litigation Claim Ren Zhong

Empirical Research on Judicial Reconstruction of the Rule of Self-defense

Zhao Jun

The Theory of Distribution of Criminal Evidences and Its Application Feng Junwei

Differences and Similarities Between Evidence Standard and Proof Standard in Criminal Proceedings Qiong Xiaobiao


Six Dimensions of Innovative Development of Chinese Theory of the Rule of Law in a New Era Li Lin

Abstract: Innovatively developing the theory of socialist rule of with Chinese characteristics is an inescapable historical mission and academic responsibility of Chinese researchers of jurisprudence and the rule of law theory in a new era. To accomplish this mission, they should pay attention to and grasp the following six important dimensions in the great practice of constructing the rule of law in China: in the jurisprudential dimension of the rule of law in China, they should summarize, interpret and express the rule of law from the perspective of jurisprudence in a way compatible with the scientific spirit and the national condition in the country; in the political dimension of the rule of law in China, they should achieve the compatibility between judicial principles and political principles in the rule of law; in the time dimension of the development of the rule of law system, they should take the new contradictions and problems in a new era as their orientation to promote the construction of a rule of law system with Chinese characteristics; in the empirical dimension of the effectiveness of the rule of law, they should use scientific method to carry out quantitative assessment and analysis of the effectiveness of the implementation of the rule of law; in the international dimension of the rule of law, they should put the Chinese theory of the rule of law on the grand stage of the international rule of law civilization for integration and development; and in the comprehensive dimension of the systematic rule of law, they should integrate all the above five dimensions, highlight the compatibility and the effectiveness of theoretical research on the rule law, so as to speed up the construction of a theoretical system of socialist rule of law with Chinese style and Chinese characteristics.

 

Keywords: theory of the rule of law; ruling the country by law; the system of the rule of law; actual effect of the rule of law; the international rule of law

 

The Co-governance Pattern-oriented Form of the Rule of Law and Its Construction Du Hui

Abstract: Constructing an order of co-governance by the government, the market and society is an important proposition of governance structure under the strategy of constructing the rule of law in China. The co-governance pattern poses new challenges to the rule of law system, leads to the structural adjustments of legal rights relationship and related principles, challenges the dynamic adaptability of the procedural view of the rule of law, and exacerbates the tension between the pragmatic tendency of governance and the formal rationality of the rule of law. Therefore, it is necessary to create a form of rule of law that matches the pattern of co-governance. In terms of ontology, this form of rule of law should be based on the renewal of the governance structure and the integration of governance mechanisms, and emphasize the normative unity of law-based governance and effective governance. In terms of the basic structure, it should focus on the construction in the following four dimensions: the open normative structure, the embedded governance organization, the co-governance procedure of negotiation and balance, and the task- and process-oriented tools. All in all, China should promote the creation of a co-governance pattern-oriented form of rule of law in the following four dimensions: developing the coherent function of the legal system; establishing a new coordination relationship between legal order and governance order; molding the “government-society-market” tripartite structure; and establishing focal points of legal structure according to the practical logic of governance reform.

 

Keywords: co-governing order; form of the rule of law; law-based governance; effective governance

 

On the Civil Disciplinary Relationship Wang Zhigang

Abstract: The main content of disciplinary power is making and enforcing disciplines. The civil disciplinary relationship refers to the civil legal relationship containing disciplinary power, including labor relations, educational relations, inpatient medical relations and parental relations. All these legal relationships have the following common characteristics: first, they all have the stability of existence and the diversity-orderly and relatively fixed structure; second, they all contain personal relations and property relations, domination relations and claim relations; and third, they all have the function of self-interest and life governance. Therefore, all these legal relationships are essentially personal status relationship. The legal basis for its formation lies in stratified establishment of formal equality and substantial inequality, the compromise of individual freedom with normative authority, and the dual adjustment of and cooperation between law and discipline. These relationships imply a potential threat to rights when forming order and producing a tamed and useful life because of the self-interest, mandatory and expansionary nature of the power contained therein and because of the secretive and meticulous operational mode of discipline power and its differential treatment of different individuals. As a result, it is necessary for the law to improve the adjustment of these legal relationships by adopting various strategies of separation and restriction of power based on the principle of protection of the weak, so as to protect disciplined persons from losing their nature of freedom and equality as legal subjects.

 

Keywords: disciplinary power; discipline in civil field; disciplines; status, tamed life or body

 

Reconstruction of the Relationship Between Guardianship and Legal Capacity under the Guidance of the Idea of Modern Guardianship

Peng Chengxin and Li Bei

Abstract: The General Provisions of the Civil Law continues to treat the guardianship as a complementary instrument for legal capacity, and there exists a full connection between these two institutions. Under the system of trichotomy of legal capacity, this connection has caused many problems to the existing law of guardianship: the limited scope of beneficiaries, the neglect of the wills and preferences of the ward, the incompleteness of the legal system, and contradictions with the fundamental principles of the UN Convention on the Rights of Persons with Disabilities, such as equality, anti-discrimination and the respect for autonomy. The confusion of the nature of guardianship and that of legal capacity is the main reason for this full connection, which is further intensified by the partial overlapping of the two concepts in objectives, potential beneficiaries, and time effect as well as by the ambiguity of the concept of “guardianship”. According to the philosophy of modern guardianship, the guardianship system should strike a balance between the protection of vulnerable persons and the respect for their autonomy. The future Civil Code should realize the partial disconnection between the institution of guardianship and that of legal capacity: on the one hand, a special procedure is needed for the guardianship in order to create independent criteria for its application; on the other hand, a pluralistic guardianship system that includes independent decision-making, supported decision-making and surrogate decision-making, should be established to improve the classification of legal capacity.

 

Keywords: guardianship; legal capacity; guardianship of adults; guardianship of minors; UN Convention on the Rights of Persons with Disabilities

 

Exceptions to Disclosed Agency and the Corresponding Legal Effects Zhu Hu

Abstract: The circumstance where an agent has disclosed the existence of a principal, but not the principal’s identity still falls within the scope of application of Article 162 of General Provisions of the Civil Law of PRC. The circumstance regulated by Article 402 of the Chinese Contract Law, where an agent acts in its own name but the third party is aware of the existence of a principal, is the further extension of the principle of agency disclosure in certain cases, and the scope of application of this Article should be determined strictly on the basis of interpretation of declaration of will. The criterion to distinguish between the disclosed and undisclosed agencies is not the name, but whether the third party is aware of the fact that the agent acts on behalf of a principal. If the agent acts in its own name and the third party is unaware of the existence of a principal, Article 403 of the Contract Law shall apply. This article is not a norm that determines the attribution of legal effect directly, but can be interpreted as assignment of creditor's right and transfer of obligation. Although the specific rules need to be further perfected, they have value legitimacy in balancing the interests of the principal, the agent and the third party on the basis of distinguishing different types of risks.

 

Keywords: disclosed agency; undisclosed agency; indirect agency; right of intervention; right of choice

 

Validity Defects in the Conclusion of Marriage Li Hao and Wang Wenna

Abstract: Conclusion of marriage refers to the juristic act by a couple to achieve the effect of marriage through their declaration of intentions at the marriage registration agency. The regulation of the conclusion of marriage in the marriage and family law of the civil code should be coordinated with the system of juristic acts regulated by the General Rules of Civil Law. From the perspective of validity defects, the first reviewed draft of the Marriage and Family Law of the Chinese Civil Code establishes a binary system composed of invalid and revocable marriages, which is different from the unitary system of dissolution of marriage regulated in the German Civil Code. From the viewpoint of the causes of validity defects, the first reviewed draft stipulates the conditions of invalid marriage with defined causes, but regulates the conditions of revocable marriage with open ones. As far as the causes of invalid marriage are concerned, Article 828 Paragraph 4 of the first reviewed draft needs to be deleted and fake marriage should be added as invalid marriage. Regarding the causes of revocable marriage, on the one hand, the provisions of the General Rules of the Civil Law on deceit and duress should be applied to the conclusion of marriage, so that the repetitive provisions of articles 829 and 830 of the first reviewed draft are not necessary. On the other hand, material mistake and unconscionability are not causes of voidable marriage, so that it is necessary to be clearly precluded. The first reviewed draft should also stipulate that marriage defect in form is voidable marriage.

 

Keywords: conclusion of marriage; defects of validity; invalid marriage; voidable marriage

 

Approaches to the Construction of a General Clause on the Determination of Industrial Injuries Zheng Xiaoshan

Abstract: Taking the close relationship between injuries and work as guidance, Article 14 of the Regulations on Work-Related Injury Insurance define the scope and standard of work-related injuries through six paragraphs of typed enumerations, supplemented by one paragraph of miscellaneous provision, namely “other circumstances provided for in laws and administrative regulations under which work-related injuries shall be ascertained”, thereby forming a typical structure of "enumeration + miscellaneous provision". But unfortunately, this miscellaneous provision is useless in practice, as there is no relevant provision in other laws or administrative regulations to be invoked. As a result, Article 14 has become an article of strict enumeration, which is often faced with the dilemma of becoming either too wide or too narrow in its scope due to latent legal loopholes. To remedy this situation, a general clause with enough inclusiveness and flexibility is needed. This general clause should still take the work-relevance doctrine as its core and adopt one of the following two legislative modes: the highly abstract “big general clause mode”, which replaces the current miscellaneous provision with “other work-related injuries and diseases”, thereby remedying the loopholes and integrating existing legal resources at the same time; and the “small general clause mode”, which establishes the key elements of work-related injuries and illnesses through the dynamical interpretation of Article 14 Paragraph 1 of the Regulations. Although the later has some shortcomings in terms the clarity of basic evaluation, comprehensiveness of the coverage and abstractness, it is still suitable for short-term use. In the concrete application of either of the above two modes of general cause, it is necessary to take into overall consideration of all work-related elements, and make decision on the basis of their interactions and overall balance.

 

Keywords:  identification of industrial injuries; general clause; work-relevance; the "48-hour clause"

 

The Criteria of Elucidation of the Change of Litigation Claim Ren Zhong

Abstract: China’s existing theory of elucidation of the change of litigation claim is still unable to provide clear criteria for judicial practice. A review and analysis of the relevant written judgments of the Supreme People's Court shows that elucidation of the change of litigation claim refers to the elucidation of the nature of legal relationship and the effect of civil act provided for in the Article 35 Paragraph 1 of the “Evidence Regulations”, as well as elucidation of dissolution of contract and its legal consequences, the increase in the amount claimed, the change of defendant and the addition of party in necessary co-litigation. Some adjudicative documents also elucidate the defendant to add a third party without independent claim. Some adjudicative documents break through the bottom line of the principle of disposition, which stems from the formalized understanding of "litigation claim", the misinterpretation of the change of "independent litigation claim" in the trial of the second instance, and the denial of parties’ later right of action in judicial practice. By construing “the change of litigation claim” in Article 35 Paragraph 1 of the “Evidence Regulations” as the change of subject matter of action, classifying the change of litigation claim based on the same fact or due to the change of situation as “non-independent litigation claim”, and adding elucidation of the right of action to adjudicative documents, elucidation of the change of litigation claim can meet the requirements of the principle of disposition and the principle of neutrality of judges to a certain extent. The purpose of Article 35 Paragraph 1 of the "Evidence Regulations" should be one-time settlement of limited disputes. In other words, the scope of parties’ claim and the claim of essential fact should be regarded as the basis of elucidation. This not only provides a uniform standard for the elucidation of the change of litigation claim, but also achieves a balance between the self-determination of the parties and the one-time settlement of disputes under the precondition of implementing the principle of disposition and the principle of neutrality of judges.

 

Keywords: elucidation; change of litigation claim; subject matter of action; principle of disposition; one-time settlement of disputes

 

Empirical Research on Judicial Reconstruction of the Rule of Self-defense

Zhao Jun

Abstract: According to the regression model and “thick conversation” data, circumstances that are closely related to the proportionality and necessity of defense, such as “comparison of numbers”, “invasive tools”, and “counterattack measures”, have no significant impact on the establishment of self-defense in judicial operation, whereas circumstances that have no necessary connection with legal requirements of self-defense, such as “not escaping from a violation when the situation permits” or “preparing defense tools in advance”, have marked negative impact on the establishment of self-defense. Besides, key circumstances that decide whether a counter-attack is illegal or not, such as “which person strikes the first blow”, have very limited influence on judicial results. In fact, the most significant factors having a tremendous impact on judicial results are “consequences of damage” and “the victim’s forgiveness”. The dislocation between judicial rules and legislative spirits of self-defense leads to the reconstruction of legal rules that aims at limiting the establishment of self-defense. The police-driven and prosecution-dominated “traditional political-legal collaborative case-handling mechanism” provides the motivation and operational space, and the outlooks on defense and crime of “members of political and legal community” provide underlying logic, for such reconstruction. As a “substantive law of life”, self-defense rules depend on complex and diverse interactions and mutual constructions among legislators, the judiciary and a variety of other social subjects. To solve the dilemma of self-defense rules, China should not only construct the doctrinarism of criminal law, but also adopt such  seemingly circuitous approaches as the “decentralized view on the interaction and mutual construction among diverse subjects”, advancing the reform of the trial-centered litigation system and realizing judicial transparency, so as to effectively implement the legislative spirit in real life.

 

Keywords: self-defense; judicial reconstruction of legal rules; empirical research

 

The Theory of Distribution of Criminal Evidences and Its Application

Feng Junwei

Abstract: The research of criminal evidence law should not be limited to the research of the exclusionary rules of evidence, but should return to the "origin" of evidence by paying attention to the distribution of evidence after the occurrence of crimes, which is the starting point of the collection, storage, transfer, and application of evidence. The theory of distribution of criminal evidence aims at demonstrating that the distribution of evidence is different for different types of crimes, that the distribution of evidence for the same crime has certain regularity, and that the distribution of evidence in different individual cases is different for the same crime under the influence of external conditions. The distribution of criminal evidence is affected by law, social environment, technological progress, etc. China should adjust the internal and external conditions that affect the distribution of evidence and improve the distribution of evidence in individual cases, so as to enable more evidence to enter into criminal proceedings and promote the formation of rational judgment. The recording of the types of evidence in criminal judgments is a kind of "mapping" of the distribution of evidence, but not the real reflection of the distribution of evidence, and should not be understood in a rigid way. The theory of distribution of criminal evidence helps to promote the scientific and refined development of evidence law theory in China, to provide theoretical guidance for the practice of evidence collection, to promote the construction of evidence rules for same type of crimes, and to diversify unified standards of proof in different types of criminal cases.

 

Keywords: distribution of evidences; evidence collection guidance; evidence rules for same type of crimes, standards of proof

 

Differences and Similarities Between Evidence Standard and Proof Standard in Criminal Proceedings Qiong Xiaobiao

Abstract: The relationship between evidence standard and proof standard in criminal proceedings in China has undergone a transformation from an initial confusion of the two to a subsequent superficial separation between them. Nevertheless, they are still used as two intertwined concepts in practice, resulting in enduring confusion or misinterpretation in understanding and application in both practical and academic fields. In spite of the fact that evidence standard and proof standard share some internal connections, they have sharp differences, and thus should not be confused with each other. Through a careful interpretation and examination of the specific meaning of evidence standard and proof standard separately, the following conclusions are drawn: evidence standard involves a review of the evidence of a case, mainly including that of evidence ability, evidence of constituents of fact, and evidence of ancillary facts, whereas standard of proof is a comprehensive evaluation of the fact of a case, mainly involving that of evidence ability, strength of evidence force, coherence of the justification of constituents of the fact, and the overall strength of the argument of a case. Although evidence standard is supposed to be the first item reviewed in the process of evaluation of proof standard, and, under certain conditions, the examination of evidence standard can be transformed into the evaluation of proof standard, yet the two should not be confused with each another. They are substantially different in specific content, litigation structure, evaluation subject, evaluation method and function, and legal effect. It is feasible and also necessary to apply a uniform standard of evidence in the course of advancing the reform of trial-centered litigation system. However, proposing a uniform standard of proof for different stages in criminal proceedings is not only contrary to the different functions and values of different litigation stages, but also a goal that can never be achieved. In the future, the unified evaluation model mixing evidence standard with proof standard should be abandoned, and a dual evaluation model distinguishing evidence standard from proof standard should be established instead.

 

Keywords: evidence standard; proof standard; evidence of constituents of fact; uniform standard of evidence