ISSN 1673-3428
ISSN 1673-3541(Online)
CN 11-5742/D
Postal Subscription Code 80-981
What is the nature of freedom of speech? The First Amendment to the U.S. Constitution is often taken as an important example of free speech protection. However, the premise underlying the First Amendment is that freedom of speech is positive rather than negative. Yet such a conclusion is far from being proved. The original academic model of freedom of speech is usually understood as the model of “minimal government.” According to this paradigm, harmful speech should not be constrained but rather contested in the “free marketplace.” Allowing “more and better speech” to challenge the harmful speech seems to be the best reconciliation. But “more and better speech” could fail in some occasions as well as the marketplace theory. Does the enforcement of legal protection in such area or the interference of the government always end up in over expanding and abuse of power? As a matter of fact, China is now facing the same challenge as the Western society. How should we reconcile the legal protection of sinking voices, the limitation of against harmful speech and the governmental power of censorship? Through discussing the several cases in China, we try to examine the consequence of both the old and new media techniques and internet that challenge not only the authority of the traditional power but also endanger the rights of individuals.
The business judgment rule (BJR) is a U.S. corporate law concept that has gained international recognition. It has been moulded, particularly in the definition of the Delaware courts, to protect the managerial business discretion, in other words to protect directors’ decisions from judicial review. Corporate social responsibility (CSR) questions the relationship between corporation with a business purpose and society. More and more attention is drawn to the various impacts of corporate decisions on society, asking for the necessity for directors to take these impacts into consideration when making business decisions. At the centre of CSR and the BJR are the fiduciary duties of the directors — the duty of diligence and the duty of care — and the question as to if the directors have breached their duties and if they have fulfilled them in a CSR compatible manner. This paper discusses how the BJR helps promoting CSR by discussing the advantages and disadvantages (real or apparent) of the BJR with respect to CSR.
In comparison to the arduous process of rights advocacy in Hong Kong, transsexuals in China’s mainland achieved their right to marry via some “silent changes”: there was no legal activism from transsexual communities, no debates or hearings in the legislature, and no landmark judgments made by the judiciary. From a perspective of comparative law, this article attempts to analyze the legal changes regarding transsexuals’ right to marry in China’s mainland in light of the struggles in Hong Kong. It endeavors to discuss to what extent the seemingly “smooth” and “unintended” way of opening up marriage to transsexuals in China’s mainland could be beneficial to trans rights and equality in general.
China’s project of the rule of law is destined to have its Chinese characteristics. China also needs to think about of the way of developing its own model of the rule of law so as to achieve a rule of law society that is universal in modern society. Many rule of law countries, such as England, Germany and France, started their rule of law project with their own model. China should learn from the merits of these different models. Nevertheless, China should also try to solve the key problem of the rule of law, which is the energizing of the enforcement of the Chinese Constitution.
Considering the prevalence of online hate speech and its harm and risks to the targeted people, democratic discourse and public security, it is necessary to combat online hate speech. For this purpose, internet intermediaries play a crucial role as new governors of online speech. However, there is no universal definition of hate speech. Rules concerning this vary in different countries depending on their social, ethical, legal and religious backgrounds. The answer to the question of who can be liable for online hate speech also varies in different countries depending on the social, cultural, history, legal and political backgrounds. The First Amendment, cyberliberalism and the priority of promoting the emerging internet industry lead to the U.S. model, which offers intermediaries wide exemptions from liability for third-party illegal content. Conversely, the Chinese model of cyberpaternalism prefers to control online content on ideological, political and national security grounds through indirect methods, whereas the European Union (EU) and most European countries, including Germany, choose the middle ground to achieve balance between restricting online illegal hate speech and the freedom of speech as well as internet innovation. It is worth noting that there is a heated discussion on whether intermediary liability exemptions are still suitable for the world today, and there is a tendency in the EU to expand intermediary liability by imposing obligation on online platforms to tackle illegal hate speech. However, these reforms are again criticized as they could lead to erosion of the EU legal framework as well as privatization of law enforcement through algorithmic tools. Those critical issues relate to the central questions of whether intermediaries should be liable for user-generated illegal hate speech at all and, if so, how should they fulfill these liabilities? Based on the analysis of the different basic standpoints of cyberliberalists and cyberpaternalists on the internet regulation as well as the arguments of proponents and opponents of the intermediary liability exemptions, especially the debates over factual impracticality and legal restraints, impact on internet innovation and the chilling effect on freedom of speech in the case that intermediaries bear liabilities for illegal third-party content, the paper argues that the arguments for intermediary liability exemptions are not any more tenable or plausible in the web 3.0 era. The outdated intermediary immunity doctrine needs to be reformed and amended. Furthermore, intermediaries are becoming the new governors of online speech and platforms now have the power to curtail online hate speech. Thus, the attention should turn to the appropriate design of legal responsibilities of intermediaries. The possible suggestions could be the following three points: Imposing liability on intermediaries for illegal hate speech requires national law and international human rights norms as the outer boundary; openness, transparency and accountability as internal constraints; balance of multi-interests and involvement of multi-stakeholders in internet governance regime.
The Organisation for Economic Co-operation and Development (OECD) proposal for taxation of digital economy constitutes one of the most ambitious projects in the field of taxation and may lead to the most significant reform to international tax rules in the 20th century. Based on a two-pillar approach, Pillar Two of the proposal suggests the adoption of Global Anti-Base Erosion (GloBE) provisions that are aimed at introducing a worldwide minimum tax. In this article, a critical analysis is based that the GloBE proposal suggests that it represents a shift in the OECD policy. As compared to base erosion and profit shifting (BEPS), it jeopardizes the tax sovereignty of jurisdictions and it raises fundamental challenges of implementation, both in terms of amendments to domestic law and conflicts with tax treaties.
The regulations of cross-border data flows is a growing challenge for the international community. International trade agreements, however, appear to be pioneering legal methods to cope, as they have grappled with this issue since the 1990s. The World Trade Organization (WTO) rules system offers a partial solution under the General Agreement on Trade in Services (GATS), which covers aspects related to cross-border data flows. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the United States-Mexico-Canada Agreement (USMCA) have also been perceived to provide forward-looking resolutions. In this context, this article analyzes why a resolution to this issue may be illusory. While they regulate cross-border data flows in various ways, the structure and wording of exception articles of both the CPTPP and USMCA have the potential to pose significant challenges to the international legal system. The new system, attempting to weigh societal values and economic development, is imbalanced, often valuing free trade more than individual online privacy and cybersecurity. Furthermore, the inclusion of poison-pill clauses is, by nature, antithetical to cooperation. Thus, for the international community generally, and China in particular, cross-border data flows would best be regulated under the WTO-centered multilateral trade law system.
Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.
The Qing Dynasty is the last dynasty of all the twelve dynasties in Chinese history. Its family law embodied the Confucian conception of the integration of family, country and the world under heaven. The rule of traditional Chinese society was depicted as “the Rule of Propriety and Music” which had been established by Duke Zhou as an instrumentalist mechanism and refined by the Confucian humanistic value orientation. This rule exhibited the intricate fabric of both family and country in five-types in dressing-service, making the laws and legalities in the Qing Codes and Cases peculiar in marriage, divorce, property inheritance and heir adoption and confirmation with obvious female and juvenile discriminations. Since Confucian ethics was introduced as a remedy to the deficiency in regulation and the stereotypes of mentality in the late Zhou Dynasty, their suggestions on equal and universal moral rights have become apparent in the relative enactments and cases ever since. As a system of social regulation, the Qing Codes and Cases demonstrated validity and stability in all areas of family law as well as in their compromise with Confucian ethics in the solidarity of family, clan, country and world where the right to live and the balance between right and duty had been always prioritized.
Based on copious material, this paper fully describes the twists and turns in the progress of Chinese criminal jurisprudence in the past 30 years, discusses the relevance of the criminal jurisprudence and the rule of law in criminal justice, as well as the development of criminal jurisprudence. Meanwhile, an assessment has been made on the theoretical criminal jurisprudence. As a whole, all of those would be of important reference for properly understanding the theoretic development of Chinese criminal jurisprudence.
Since the reform and the opening up to the world of China, there has been increasingly more litigation in China, which has stimulated further development of the legal profession and greater public and private expenditure on the legal practice. Accordingly, legal reform has become an important component of the national scheme of social transformation. On the other hand, the rapid increase in litigation has unexpectedly eroded the traditional means to resolve disputes of both mediation and judicial mediation. More alarming is that judicial credibility is seriously challenged by judicial corruption and poor enforcement of judicial decisions. The increasing number of litigation-related complaints by the public, and the large number of vetoes against the working reports of the Supreme People’s Court and the Supreme People’s Procuratorate by the National People’s Congress, are two indicators of the crisis of judicial credibility. This paper is to analyze the data of litigation, legal profession, mediation, and the phenomena of judicial corruption. Based on this analysis, it suggests that, to overcome the current quandary of judicial development, further reform should not only focus on courts, but also on all functional departments that could collaborate one way or another with the judiciary, should not depend only on governmental organizations but also on NGOs in resolving disputes and social issues, and should explore and develop innovative ways of social management.
Humanization is not only a new concept and value-oriented, but also an ever-increasing positive phenomena in international law. Contemporary international law has been contributing to the establishment and improvement of global peace and development order for the co-existence among States on the one hand, and making endeavors to the formation and maintenance of humanizing order,which is both “individual-oriented” and “humankind-oriented”. Such a humanizing phenomenon undoubtedly represents the advanced trend of international law, enriches its contents, updates some of its classic branches and impacts on the basic principle of reciprocity on which it is created and developed. However, the humanization of international law could not have taken shape without common accords among States by means of either treaties or customary rules; and without cooperation among States, the humanistic value of international law can never become true no matter how sublime it is.
Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose (which was not to achieve responsible government but to preserve the property of wealthy landowners), its force (it was annulled by the Pope and repudiated by the king within a few weeks), and even its success as a peace treaty (war broke out within a few months). The author will outline the reasons for skepticism, because we can only see what there is to celebrate in 2015, if we understand that the Charter of 1215 was the failed result of a reactionary armed tax rebellion by wealthy and powerful landowners, who were not trying to make a new constitution. What is there to celebrate? The author will address that question by asking why the Charter of 1215 was neither void (as the Pope asserted) for repugnancy to the King’s authority, nor voidable for duress. The author challenges the idea that the Charter of 1215 is the foundation of the rule of law in England, arguing that the rule of law goes back farther, and that the Charter of 1215 was very limited in its impact. But it did promote the rule of law in two ways: by giving new specificity to legal duties and restrictions that the king had already been subject to, and by highlighting the country’s need for effective processes for giving effect to those duties and restrictions.
The past decade has seen remarkable progress made in the field of environmental information disclosure in China. While the overall institutional changes and the motivation/willingness of the government to open up information are important conditions, China’s encounter with revolutionary Information and Communication Technological (ICT) advancement and rapidly emerging big data quickly changed China from an “information poor environment” to an “information complex environment.” While most previous studies centered on those drives/constraints that were recognized in established informational governance framework, recent advancement in ICTs and emerging big data posed new challenges, opportunities and research questions. When increasing information disclosure became a new game changer in environmental governance, China has had to cope with risks and pitfalls in a new technology-empowered information environment as well. This article updated previous studies on legislation/ regulations/policies regarding environmental information disclosure in China and their implementation effectiveness, and paid special attention to China’s recent informatization progress and emerging big data. Information disclosure was treated as a process that includes data/information generation/collection, disclosure, functional pathways of communication, and direct/indirect impacts. Changes in environmental information disclosure should be understood in a broader context of overall changing environmental governance and informatization in China. It is important to understand ICTs and information disclosure as a double-edged sword. Normative, substantive, and instrumental benefits of disclosure as well as collection and reporting costs, the issue of targeted transparency, and the risk of unintended use should be strategically considered. Principles and guidelines need to be developed to avoid pitfalls while maximizing benefits.
Statelessness is an old and continuous problem existing in many countries around the world. Statelessness is caused by various reasons such as the conflicts of the nationality laws of different countries and international marriages. This article analyzes the legal framework and practices concerning nationality issues in China from the perspectives of China’s international obligations to protect the rights of stateless persons, especially women and children. This article also analyzes several stateless cases, in particular the de facto stateless situation of the “Vietnam brides” and their children in China. At last, the article gives recommendations in the light of international law and practices of the United Nations High Commissioner for Refugees on the reduction of statelessness in China.
With the development of the internet and the increasing role played by information technology in the economy, personal information protection has become one of the most significant legal and public policy problems. Since 2013, China has accelerated its legislation efforts towards protecting personal information. The Cybersecurity Law of the People’s Republic of China took effect on June 1, 2017. Legal scholars focus on the nature of personal information, discuss the necessity of enacting specific laws on protecting personal information, and attempt to propose relevant draft laws regarding personal information protection. Personal information protection, however, is not only a legal issue but also a political one. We need to look at the decision-making process about legislation on personal information protection in China. Why has China sped up its legislation on personal information protection since 2013? Is privacy, civil rights, or legal interest the main reason behind the legislation? Only after placing personal information protection legislation in a broader context, can we have a better understanding of the underlying logic and dynamics of personal information protection in China, and can perceive the potential content and possible future of these legislation. This paper argues that Internet industry development, the social consequences of personal information infringement, and national security are the main drivers of China’s personal information protection legislation.
This article reviews the historical development of Chinese civil law since reform and opening up of China and argues that the primary achievement of civil law legislation over the last four decades has been the formation of a comprehensive civil legal system. Today’s civil law system in China not only satisfies the institutional requirements for building a market economy but also constructs a legal rights system and establishes fundamental civil law principles, such as individual autonomy, equal protection, good faith, and fairness. In the 40 years since reform and opening up, there have been significant innovations with regard to the specific systems, systemic structures, and fundamental principles of Chinese civil law. This article summarizes the experiences of China’s civil law legislation since reform and opening up and looks ahead to how the anticipated “civil law codification” suitable for the modern era will develop a modern legal code based on China’s domestic circumstances.
From the early 1990s onwards, the institution of punitive damages in Chinese civil law has been introduced in translation, learned in discussion, and adopted over a 20 year period of development. Punitive damages were first provided for in Article 49 of the Consumer Protection Law (CPL) of 1993, and this institution has expanded into the field of tort liability with later laws (the Food Safety Law and the Tort Law), and judicial interpretation as supplement. Further, the latest amendment of the CPL has drawn attention to the following two points: (1) the calculation method has been amended leading to an increase in punitive damage amounts in most cases; (2) Article 55 specifies the corresponding provision in the CTL. It has coordinated and synchronized two institutions: punitive damages and mental injury compensation, in the way of entitling the consumer the “right to claim punitive compensation of not more than twice the amount of losses incurred” with the “the amount of losses” including the mental injury compensation. In the second part, the very basis upon which the developing legislations above rests is rooted in intense academic discussions regarding various aspects of punitive damages. Some quintessential topics thereof selected in this article concern: the legitimacy of punitive damages, commentaries on buying-fake-while-knowing-it, the calculation method for punitive damages, and the relationship between punitive damages and mental injury compensation. In the summary, the authors reveal certain negative trends in the application of punitive damages.
Starting from the establishment of the guiding case system in December 2010, the Supreme People’s Court of China has issued 31 guiding cases. This article discusses the background, purposes and functions, ways to function, and effects of the guiding case system. It compares it with ancient Chinese guiding case systems, and the common law system from these perspectives. Based on the analysis of these comparisons, this article argues that the current guiding case system is neither an extension of the ancient Chinese guiding case systems nor a transplant of the common law system. However, the current guiding case system and common law system have the tendency to become more and more similar systems in reality.
China’s Belt and Road Initiative (BRI) has a significant impact on the gender equality of receiving countries. It is noted that many BRI countries are facing challenges to realizing gender equality. Nevertheless, China has not developed a gender-mainstreaming or rights-based approach to implement the BRI. Hence, this paper argues that it is China’s international human rights obligation to develop such an approach and the country should adopt a gender policy in its BRI to ensure that its overseas investments and aid programs respect and promote gender equality. First, this paper maps China’s overseas investments and aid globally and particularly in BRI countries, and examines, in general, how the BRI may have an impact on gender equality both globally and in BRI countries. Second, the paper reviews international standards on gender equality in transnational trade and foreign investment and aid projects in the context of international human rights’ norms. It clarifies China’s obligations to promote gender equality within the BRI framework under international law. Third, based on the aforementioned findings, this paper conducts a gap analysis on the gender policy followed by China’s overseas investment and aid programs set within the context of international standards. Finally, the paper recommends some possible policy steps to ensure gender equality is mainstreamed in BRI projects of China.
China and some of its trade partners in Western Europe apply different legal regimes for international carriage of goods by railway — respectively Agreement on International Railway Freight Transportation (SMGS) and Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM). For transportation of goods by railway between China and Western Europe both the CIM and the SMGS are often applicable. China’s initiative “the Belt and Road” promotes development of railway transport in Eurasia and creates new incentives for comparative study between those two international legal systems. This article provides a brief historical outline of comparative studies between the CIM and SMGS. This article also purports to show that some similarities and differences between the two regimes might be better understood from the perspective of comparative legal history. Taking into account inter alia the common origin of the current versions of the CIM and SMGS in the 4th revision of the CIM of 1933, differences and similarities between two legal regimes have been analysed with regard to the following topics: the scope of application of the CIM and SMGS; the nature of the carrier’s liability under the CIM and SMGS; exclusivity of the CIM, exclusivity of the contract of carriage under the SMGS; period of responsibility; persons for whom the carrier is liable.
This article deals with reciprocity requirement for recognition of foreign judgments in Japan. Following German law, Japanese law requires reciprocity to the rendering state in addition to the jurisdiction of the state, the service of process, and the compatibility with Japanese public policy. Although Japanese courts have rarely refused the recognition of foreign judgments for lack of reciprocity for a long time, some Chinese judgments recently have not been recognized for this reason. The author clarifies first with historical review what was the purpose of the Japanese legislator, when the original law of 1890 required the reciprocity by international treaties, and when later the reform law of 1926 required the simple reciprocity that is similarly provided in the current law. The author surveys then the Japanese case law concerning the reciprocity requirement after the reform of 1926. The author focuses further on the reciprocity between Japan and China and compares the Japanese practice with the German one that led to a different result. Last, it is concluded that the reciprocity requirement is contrary to the protection of human rights under Japanese constitution.
We are living in a risk society where people devised the Precautionary Principle in order to minimize the harm caused by risk ex ante. Compared to the previous Food Hygiene Law (FHL) and the 2009 Food Safety Law, the 2015 revised Chinese Food Safety Law (FSL) made a real breakthrough in the sense that it legitimates an important principle in food safety governance. Apart from laying down the fundamental importance of this principle in food safety regulations, the FSL 2015 also invented arrangements from different aspects in order to implement this principle. In other words, the FSL 2015’s incorporation of the Precautionary Principle in a very real sense marked a transition from a demonstrative preventive food safety management regime to a more effective precautionary regime. However, the Precautionary Principle needs to be adopted in a “precautionary” way since this principle has its own limitations and defects. Incautious application of the principle may create new risks. This article compares the European approach in implementing the Precautionary Principle, and examines China’s legal arrangements against negative impacts brought by the Precautionary Principle. Three perspectives are discussed: independence of scientific institutes; proportionality in risk management measures, and the shift of burden of proof for market authorization.
Lesbian, gay, bisexual, and transgender (LGBT) people constitute approximately five percent of the population, but workplace discrimination based on sexual orientation and gender identity remains troublingly commonplace. This article summarizes a large and growing body of social science research demonstrating the economic benefits of LGBT inclusion (and the costs of LGBT exclusion) in the workplace. It concludes with recommendations for (1) future research, stressing the need for more China-specific studies, which would inform policymaking and theoretical understanding of diversity and inclusion practices on business performance, (2) improving employer LGBT-inclusion policies, and (3) strengthening state protection of the equal employment rights of LGBT people.
This paper rethinks the reasons for and the nature and means of personal data protection. The reasons for personal data protection are that it could promote the fairness and effectiveness of information flow, help individuals develop their independent personality, and equip them to deal with risks. With respect to the nature of personal data, this paper argues that such data should not be perceived from a purely individualistic point of view. Rather, there should be a contextualized understanding of the data, which considers the appropriate information flow of personal data within a particular context. Regarding the legal framework of personal data protection, this paper suggests that consumer protection law and public law are better equipped to protect personal data than tort, contract, or property law.
In 2009 after a six-month investigation, the case regarding Coca-Cola Company’s acquisition of Huiyuan Juice Co., Ltd. (Huiyuan Juice) ended when the Ministry of Commerce of the People’s Republic of China (MOFCOM) rejected this acquisition. This is the first anti-monopoly case since the implementation of Anti-Monopoly Law of China (the “AML”). Foreign acquisitions introduce capital, technical and management experience into China, while they also impair competition in China and lead to the disappearance of some Chinese national brands. In recent years, a series of foreign acquisitions attract extensive attention and even controversies. This phenomenon should be addressed rationally. Following the case concerning Coca-Cola’s attempted acquisition of Huiyuan Juice, this article first assesses the pros and cons of foreign acquisitions, and then analyzes foreign acquisitions by the specific requirements of the AML, pointing out the rationalization, grounds and complexity of the law applicable to foreign acquisitions.
The beneficial ownership concept has constituted for more than half a century one of the most fundamental and debated issues in the application of tax treaties. This article goes back to routes of this term explaining the reason of its original inclusion in the OECD Model Tax Convention and why ultimately such inclusion may have not been necessary. Then it analyses the historical developments of beneficial ownership in the OECD Model Tax Convention. For that purpose it considers different interpretations adopted by jurisdictions (particularly in China) and local courts delving into some of the landmark cases on the subject. Finally it provides a detailed analysis of the current meaning of beneficial ownership considering the most recent developments in the Commentary to the OECD Model Tax Convention.
