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EQUALITY, DIGNITY, AND SOCIAL HARMONY: EXPLORING THE RATIONALES AND MODELS FOR RECOGNIZING SAME-SEX RELATIONSHIPS IN LAW
David Bilchitz
Front. Law China. 2016, 11 (3): 407-432.
https://doi.org/10.3868/s050-005-016-0023-6
One of the major changes that has taken place over the past twenty to thirty years has been the extension of the legal recognition and protections for same-sex relationships in a wide range of countries. A number of jurisdictions, including China, are considering the approach that they will adopt. This article seeks firstly to consider the justifications for the legal recognition of same-sex relationships by the state. Three main, compelling rationales are identified which are rooted in notions of the equality of all persons, the dignity and liberty of individuals to form close personal relationships, and the social benefits of recognizing close, personal relationships of same-sex couples. The second part of this article then turns to consider the manner in which same-sex relationships should be recognized. Four models are identified: a “Partial Rights” model; a “Civil Partnerships” model; a “Marriage Equality” model, and a “Diversity of Relationships” model. Reasons for and against these particular models will be examined. In the conclusion, it shall be argued that the choice of model that has been adopted can be seen to depend on a number of factors: the manner in which equality is conceived in that society; the understanding of same-sex relationships therein, and the religious and cultural opposition to same-sex relationships in that society. The models are also not states of affairs that are fixed for all time and many countries have progressed from less extensive forms of recognition to wider recognition over time. Ultimately, it shall be argued that the rationales underlying the recognition of close personal relationships in the law support the “Marriage Equality” model or the “Diversity of Relationships” model. This article thus seeks to provide an understanding of the rationales and models for recognizing same-sex relationships that have been adopted around the world: Its focus is thus comparative but may, in this way, be useful to lawmakers and advocates for legal reform in this area in China and other jurisdictions around the world.
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RETHINKING INCLUSION: IS THERE A RIGHT TO INCLUSIVE EDUCATION?
NI Zhen
Front. Law China. 2016, 11 (3): 486-514.
https://doi.org/10.3868/s050-005-016-0029-8
By combining theories of education, human rights law, and political philosophy, the author provides lenses to understanding inclusive education, thereby establishing consensus on the new, cognitive grounds over the description of a better inclusive education system for all children. The investigation is guided by two research questions. The first question concerns what description we should hold for a better education system inclusive of disabled children. The second addresses how to arrive at a consensus over that better system among stakeholders and within the whole society. To answer these questions, the investigation is conducted through both transcendental and comparative routes. Firstly, to contextualize this research, a brief review of theoretical disagreements on inclusive education is provided, and a case study of China’s struggles towards inclusion is presented. The theoretical review and the case study provide concrete information for later assessment and comparison between reality and the ideal plan. Meanwhile, the author discusses ways to go beyond binary thoughts and disorganized practice. To achieve the goal, transcendental thought experiments are employed to generate new grounds for a more comprehensive, inclusive project; the idea of a right to inclusive education is elaborated.
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RESEARCH ON THEORY, LEGISLATIONS AND PRACTICES ABOUT REGULATING NON-PRACTICING ENTITIES IN CHINA
MENG Yanbei
Front. Law China. 2016, 11 (3): 515-537.
https://doi.org/10.3868/s050-005-016-0030-2
Non-Practicing Entities (NPE), as a subject, is a neutral concept, but the derogatory sense of translation and understanding on this concept and the chaos of understanding make the legal regulation of NPE encounter more difficulties and challenges. In fact, NPE issues are concerned, discussed and researched in China within quite a long period, however, it would not become an outstanding legal issue nowadays. NPE as a market entity, its existence is legitimate per se, and what the law should focus on is the unfair conduct that NPE might be engaged in rather than the subject of NPE itself. It is not necessary to make specific articles and provisions on the subject of NPE at present in the Patent Law of the People’s Republic of China (PRC) and the Anti-Unfair Competition Law of the PRC which are revised in China, and a serial of rules and guidelines for Anti-Monopoly Law of the PRC which are formulated in China. It proved that the unfair conducts of NPE should be regulated according to Patent law, Anti-Unfair Competition Law and Anti-Monopoly Law as well as, reconfirmed that the conclusion that the regulation of NPE in China laws focus on conducts rather than subject in a serial of cases such as the anti-monopoly investigation case against INTERDIGITAL Corporation initiated by the National Development and Reform Commission, the case that the Ministry of Commerce imposed restrictive conditions to approve that Microsoft acquired Nokia equipment and service business, and the commercial defamation case that Shenzhen Libang Precision Instrument Co., Ltd vs Shenzhen Mairui Biological Medical Electronic Co., Ltd which was reviewed by the Supreme People’s Court.
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CONFIDENTIAL GEODATA PROTECTION IN CHINA: CHALLENGES, LIABILITY CONCERNS AND POSSIBLE SOLUTIONS
ZHAO Xiaobo
Front. Law China. 2016, 11 (3): 551-574.
https://doi.org/10.3868/s050-005-016-0032-6
In recent years, a growing number of foreign companies and individuals were involved in geodata violations in China. The Chinese government is facing greater pressure to protect confidential geodata within its territory. Geodata violations occurred in the course of illegal mapping and surveying, geographical and geological data collection and transactions. Although China has reformed laws and regulations to refine some aspects of confidential geodata management, existing rules remain ambiguous and controversial. This article aims to address the liability concerns raised among foreign companies from geodata violations. After defining the three most significant concepts, geological data, mapping and surveying, and state secrets, this article reviews the status quo, reasons for and impacts of geodata violations in China, to find out how big the problem is and why it matters. It then explores the legislative framework of state secrets protection in the context of geodata management; special focus is put on liability issues and problems of the current system. As a response to existing arguments, possible ways to improve confidential geodata protection and some practical tips for foreign businesses are offered.
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