Frontiers of Law in China

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REALIZING THE RIGHT TO DEVELOPMENT THROUGH JUDICIAL REFORM: THE STRATEGIC CONNECTION AND PRACTICAL INTEGRATION
LIAO Yi
Front. Law China    2015, 10 (4): 593-621.   https://doi.org/10.3868/s050-004-015-0033-9
Abstract   PDF (270KB)

The birth of the right to development (RTD) shifted the paradigm of international discourse from need, charity, and aid towards human rights, shared responsibilities, and cooperation. The implementation of RTD requires effective development policies at the national level, and equitable economic relations and a favorable economic environment at the international level. From the new theory perspective, RTD is a type of integrated human rights, charazterized by integration feature and process-oriented approach, by the method of dialogue, in order to achieve the idea of equilibrium. It would be ideal to overcome the dilemma of implementing RTD based on overall strategic framework and improve the legal and judicial reform in the context of globalization. However, for the developing countries that have been struggling to change the unequal international political and economic order, it is the core driving force of realizing RTD in the process of deepening dialogue and negotiations, which is reflected in the process of legal and judicial reform. Therefore, it is necessary for us to change the strategy from legislative base to judicial focus, from one-way path to plural view, exploring the possibility of new model to realize the RTD in the context of comprehensive judicial reform.

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The Roman Law Tradition and Its Future Development in China
WANG Zhenmin
Front. Law China    2006, 1 (1): 72-78.   https://doi.org/10.1007/s11463-005-0005-y
Abstract   PDF (81KB)
In Late Qing Dynasty, the Chinese Law Family was disintegrated and the Western Law was introduced into China. Finally, China adopted the European continental Roman law tradition. This paper analyzes the reason for China s borrowing of such legal system and probes its development and reform in the later years. It also tries to answer the question of what will be the possible impact upon the current Chinese legal system since China now implements the policy of one country two systems  in order to realize its reunification with Hong Kong, Macau and Taiwan. In addition, it will make some prediction upon the future development of Chinese legal system.
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FOREWORD
WANG Yi
Front. Law China    2018, 13 (3): 311-311.   https://doi.org/10.3868/s050-007-018-0020-3
Abstract   PDF (177KB)

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Fair value of international economic law in globalization ━On the role positioning and strategic selection of developing countries and China
LIU Zhiyun
Front. Law China    2008, 3 (3): 423-454.   https://doi.org/10.1007/s11463-008-0020-x
Abstract   HTML   PDF (315KB)
With the fast growth of economic globalization in international economy, the liberalization-oriented lawmaking has emerged, which resulted in a preliminary orderly mechanism in the global free market, but fair value is lost in the rule making of international economic law, hence resulting in a crisis of legitimacy itself. For this subject, it is necessary to find out the theory of restructuring fair value in the dispute on the essence of justice within the contemporary theory of free capitalism, and the theory of Rawls’ plural justice offers some hints. Of course, it is also quite basic for developing countries and China to anchor their roles properly and make strategic selections in restructuring fair value of international economic law.
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Tokyo trial and Nanjing massacre
ZHU Wenqi
Front. Law China    2008, 3 (3): 325-352.   https://doi.org/10.1007/s11463-008-0015-7
Abstract   HTML   PDF (290KB)
Nanjing massacre is undoubtedly an outstanding event that indicates the savage acts of the Japanese soldiers during World War II, and its cruelty shocked the whole world. But up to now, there are still some people in Japan denying this period of history. The Trial by the International Military Tribunal for the Far East (“Tokyo International Tribunal”) puts the monstrous crimes committed by the Japanese militarists in record, nails their violence in Nanjing to the history’s pillar of shame for ever, and declares publicly to the later generations that such violence shall never be forgot.
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RETHINKING CHINESE EVIDENCE THEORIES AND RECONSTRUCTING SYSTEM OF EVIDENCE: “A THREAD FOR THE PEARLS OF CHINESE EVIDENCE”
ZHANG Baosheng, YANG Ping
Front. Law China    2018, 13 (1): 6-20.   https://doi.org/10.3868/s050-007-018-0002-3
Abstract   PDF (240KB)

This article analyses Chinese traditional evidence theories that have evolved over a long period of time, to explore which theory, between objectivity and relevancy, best represents the basic attribute and logical thread of evidence. These theories are considered in the context of issues arising in evidential adjudication, including: the “Mirror of Evidence,” truth, the probability of proof standard, the choice between a notion of pursuing 100-percent certainty in adjudication and that wrongful acquittals are better than wrongful convictions, and the statutory proof doctrine comparedwith the system of free proof. Finally, the article presents the framework of and methods for drafting provisions of procedural evidence of the People’s Court.

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Social responsibilities of transnational corporations
WANG Chuanli, DONG Gang
Front. Law China    2007, 2 (3): 378-402.   https://doi.org/10.1007/s11463-007-0018-9
Abstract   PDF (719KB)
As for international direct investment, the transnational corporations are playing a leading role in the fields of international trade, international investment and international intellectual property. In theory and reality, this authors analyze the rationale of the social responsibilities taken by transnational corporations, the main problems in the social responsibilities of transnational corporations and the legislative status, and put forward the functions of the social responsibilities of transnational corporations in promotion of the legal construction of socialist market economy, the reform of the corporate governance and the development of transnational corporations in China.
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Some issues related to administrative law in the Real Right Law of China
JIANG Bixin , LIANG Fengyun
Front. Law China    2008, 3 (2): 165-180.   https://doi.org/10.1007/s11463-008-0009-5
Abstract   HTML   PDF (184KB)
Many elements of administrative law are related to real right law. The regulations on public interests concern the base of interference of public powers. The content of administrative private law is associated with the phenomenon of “Flucht in das Privatrecht”. The control of the property by the based self-ruling community is connected with indirect state administration. The rights of the property by citizens are subjective public rights. Special sacrifice and die junktimklausel are preconditions of compensation for expropriation. The register of real estate shows the interference of public right. The real right law makes rules for administrative public domain is a special example.
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On property with personality interests
YI Jiming , ZHOU Qiong
Front Law Chin    2008, 3 (4): 556-582.   https://doi.org/10.1007/s11463-008-0027-3
Abstract   HTML   PDF (289KB)

The traditional theory of property and tort law generally denies personality interests in property. In recent years, legislative and judicial practices at home and abroad have turned to care for personality interests in property and to protect it. The property with personality interests can be classified into four categories, namely, (a) property with personality symbolism, (b) property with specific human emotion, (c) property originated from specific human body, and (d) intellectual property from specific human wisdom, the first two of which internalize external matters and the last two externalize the inherent self. Comparing with fungible property, the property with personality interests on the basic of facts and law shall be more protected in legislative and judicial practices.

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Cultural products, copyright protection and trade rules
HAN Liyu
Front Law Chin    2009, 4 (2): 196-216.   https://doi.org/10.1007/s11463-009-0012-5
Abstract   HTML   PDF (260KB)

Cultural products are commodities with cultural contents, which are neither equivalent to cultural relics nor ordinary articles. Such dual natures bring forth divergences in trade policy, mandating the generality and particularity of trade rules. The WTO rules lay more emphases on free trade while the United Nations Educational, Scientific and Cultural Organization put more stress on the free exchange and diversity of cultures. Nations enjoy cultural sovereignty over their cultural policies and administrative measures. The rules of intellectual property rights also influence trade in cultural products. To develop trade in cultural products, science and technologies shall be employed to create diversified and competitive products of distinct cultural values.

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Study on the Financial Supervision and Anti-Monopoly Regulation of Integration of Industry and Finance - in View of Confronting Global Financial Crisis and Mitigating Domestic Financial Risks
Jin Sun
Front Law Chin    2011, 6 (2): 284-315.   https://doi.org/10.1007/s11463-011-0129-1
Abstract   HTML   PDF (579KB)

With governmental loose control in the major global economies since 1980s, the integration of industry-finance capital generates group companies. The integration of industry and finance (hereinafter as the “IIF”) is on the way to gradually become the mainstream of the world. It is needed to reconsider the IIF in light of the current global financial crisis. The IIF expands economic scale and increases efficiency, bringing two challenges in practice: financial risk overlay and anti-competition of the market power. What is more, the formation and abuse of market power will amplify the effect of risk overlay. To mitigate financial risks and protect market competition and to improve the regulation of the IIF, it is needed to improve both financial supervision and anti-monopoly regulation, as both are crucial.

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On the relationship of legal supervision and prosecution, defense, adjudication
WAN Chun , GAO Jingfeng
Front. Law China    2008, 3 (3): 368-387.   https://doi.org/10.1007/s11463-008-0017-5
Abstract   HTML   PDF (259KB)
The purpose to set up public prosecution power is to restrict the investigation and judicial power. Public prosecution power is an organic combination of prosecution and trial supervision. The procurator’s supervision in the court does not infringe on the defendants’ procedural right. The procuratorial organ’ s supervision on the matters of the court at the same level is only a power to start the correction procedure, however, the substantive power to make the final decision of whether to admit the mistake and how to make remedies belongs to the court. Therefore, the public prosecution’s status is much higher than that of the defense and the interferences with independent judicial power of courts by legal supervision do not exist in China.
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Personal health care and medical treatment information and protection of privacy right
TANG Xiaotian
Front. Law China    2008, 3 (3): 408-422.   https://doi.org/10.1007/s11463-008-0019-3
Abstract   HTML   PDF (217KB)
Personal health care and medical treatment information are both personal information which can be used as a sign to identify each individual. Such information shall be under the control of the owner. The comprehensiveness of personal health care and medical treatment information makes it more valuable than the simplex personal information. The controlling right of personal health care and medical treatment information is irretrievable once deprived. The rights of controlling, managing and using regarding personal health care and medical treatment information can be separated appropriately. The right of privacy is an independent personality right. For the protection of public interests, the right of personal privacy shall be appropriately limited. Meanwhile, the government shall be responsible for the protection of personal health care and medical treatment information.
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Destiny of the Death Penalty in China in the Contemporary Era
CHEN Xingliang
Front. Law China    2006, 1 (1): 53-71.   https://doi.org/10.1007/s11463-005-0014-x
Abstract   PDF (141KB)
This paper is a study on the abolishment of death penalty in China. The author first reviewed the ancient death penalty in China, looked at the history of death penalty from its evolution and reform, then examined the status quo of China s death penalty, and brought forward a practical question of what course should the flourishing death penalty in China follow in the international trend of abolishing and restricting death penalty. In this regard, the author analyzed the conditions for abolishing death penalty from the perspectives of public opinion s influence, choice of politicians, control of crimes and structure of criminal penalty. He also designed a course for China to restrict and abolish death penalty from the legislation setting and judicial restriction, expecting to find a practical way to abolish death penalty.
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The cross holding of company shares —A preliminary legal study of Japan and China
GUO Li, YAKURA Shinsuke,
Front. Law China    2009, 4 (4): 507-522.   https://doi.org/10.1007/s11463-009-0027-y
Abstract   PDF (390KB)
Cross shareholding is a practice whereby pairs of companies exchange holding of shares. It is vitally important to recognize that cross shareholding has both positive and negative effects, the latter of which demand particular scrutiny. This article tries to suggest a possible framework for the regulation of cross shareholding in China, by mainly applying lessons and implications from the experiences of Japan, where cross-holding has contributed to the spike and collapse of its economy. Currency appreciation, accounting rules changes and capital market restructuring are putting China in the similar shoes. Targeting at different situations, hereby a spectrum of rules has been proposed.
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Tax Planning and Tax Policy in China: Case Study of the Tainted Milk Scandal
Duoqi Xu
Front Law Chin    2011, 6 (2): 192-218.   https://doi.org/10.1007/s11463-011-0125-5
Abstract   HTML   PDF (503KB)

No food safety crisis has ever stirred such a national sensation in China like the tainted milk powder scandal in 2008. A further exploration of the root cause of this crisis, however, reveals something more disturbing—it is the undeveloped tax system that causes the melamine milk crisis. Because of the tension between political logic and governance logic of tax reform in China, the vacuum of public good provision becomes a burning issue since the Agricultural Tax Regulation was abolished and farmers’ economic burden became heavier than before. Thus, in order to prevent any food safety incident in the future, a sound notion of tax and an integrated system of tax planning and expenditure should be established and reinforced in the Chinese tax law.

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EDITOR’S NOTE
WANG Zhuhao
Front. Law China    2018, 13 (1): 1-5.   https://doi.org/10.3868/s050-007-018-0001-6
Abstract   PDF (124KB)

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The Implementation of China’s Anti-Monopoly Law: A Case on Coca-Cola’s Abortive Acquisition of Huiyuan Juice
Jin Sun
Front Law Chin    2011, 6 (1): 117-130.   https://doi.org/10.1007/s11463-011-0120-x
Abstract   HTML   PDF (448KB)

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.

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Deliberation on adjusting Chinese criminal law structure
LIU Renwen
Front Law Chin    2008, 3 (4): 477-493.   https://doi.org/10.1007/s11463-008-0022-8
Abstract   HTML   PDF (248KB)

There are two problems with regard to the structure of Chinese criminal law. Firstly, the crimes that are defined in the Chinese criminal code are approximately equal to the felonies that are defined in the western criminal codes, while re-education through labor and penalty for administration of public security similar to the misdemeanors and violations in western countries respectively are not included in the Chinese criminal code, and meanwhile the security measures have not been systematized. Secondly, crimes and penalties, except in criminal law, can not be prescribed in administrative laws and economic laws, and such single track system of conviction and sentencing fails to satisfy the current social situation in which the number of mala prohibia has increased so much. The way to reform Chinese criminal law structure: Firstly, it is to establish a double track system, where mala prohibia should be prescribed in the related administrative laws or economic laws; secondly, a comprehensive criminal code should be reformulated in which felonies, misdemeanors, violations and security measures are all included.

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Humanizing tendency of contemporary international law
ZENG Lingliang
Front Law Chin    2009, 4 (1): 1-30.   https://doi.org/10.1007/s11463-009-0001-8
Abstract   HTML   PDF (548KB)

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.

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Intellectual property laws integrated with the national development policies in China
WANG Guanxi, LI Xiaoping
Front. Law China    2007, 2 (1): 71-91.   https://doi.org/10.1007/s11463-007-0004-2
Abstract   PDF (303KB)
As a developing country, China has been pressured by the developed countries to increase the levels of intellectual property (IP) protection and to adopt IP rules that even go beyond the minimum international standards. IP regimes are established to promote advances in science and culture by rewarding creation and invention. However, developing countries do not necessarily appropriately share the benefits from the harmonization of IP protection standards over the world. Fortunately, not every developed country or international organization is concerned only with its own interest when evaluating the tendency of international IP protection policies. In fact, they have made many studies or findings in favor of the concerns and interests of developing countries. This paper investigates the conflicts between IP rights and human rights, as well as the validity of IP laws under constitutional arguments, with the purpose of providing new strategic policy arguments in China s future amendments to IP 1aws, and related negotiations with developed countries.
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Interpreting the legislation connotation of water resource regulations
XING Hongfei , XU Jinhai
Front Law Chin    2008, 3 (4): 600-610.   https://doi.org/10.1007/s11463-008-0029-1
Abstract   HTML   PDF (203KB)

Water resources have the functions as domestic water, resource water and environmental water, on the basis of which the legislative framework of water resource regulations shall be studied. Firstly, domestic water shall be deemed as property right and the legislation shall protect the realization of the fundamental human rights for use of domestic water. Secondly, with respect to resource water, an independent water resource regulatory agency shall be established; and meanwhile, the legislation shall promote the construction of water right market based on property rights and improve the utility of water resources. Thirdly, since environmental water is one of the public goods, the legislation shall create a path of privatization in implementing mechanism for realizing the use of environmental water and the franchising system provides a practical solution to privatization of environmental water.

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Issues of Chinese legislation on public environmental lawsuits and the way out ━Latest development of American case law and its practice for reference
CHANG Jiwen
Front. Law China    2008, 3 (3): 455-476.   https://doi.org/10.1007/s11463-008-0021-9
Abstract   HTML   PDF (275KB)
In developing Chinese legislation on public environmental lawsuits, it is not only to amend the Constitution, Law on Environmental Protection, Civil Procedure Law and Criminal Procedure Law from the aspect of legislative system, but also revise environmental regulations and judicial interpretation. In specific regulations, it is to explicitly define the scope of environmental citizen lawsuits to be accepted and heard by court, conditions of subjects, preconditions of litigation, procedures and rules for hearings, petitions of plaintiffs, modes and conditions for presenting evidence, which should not only affirm citizens’ environmental rights, extend the scope of environmental damages and the scope of cases that indirect individuals can exercise the right to sue, but also establish litigation intervention system, environmental public prosecution system, and charging standard for the participation of attorneys.
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Criminological analysis on deterrent power of death penalty
ZHANG Yuanhuang
Front Law Chin    2009, 4 (1): 31-47.   https://doi.org/10.1007/s11463-009-0002-7
Abstract   HTML   PDF (388KB)

Death penalty is the most effective deterrence to grave crimes, which has been the key basis for the State to retain death penalty. In fact, either in legislation or in execution, death penalty can not produce the special deterrent effect as expected. With respect to this issue, people tend to conduct normative exploration from the perspective of ordinary legal principles or the principle of human rights, which is more speculative than convincing. Correct interpretation based on the existing positive analysis and differentiation based on human nature which sifts the true from the false will not only help end the simple, repetitive and meaningless arguments regarding the basis for the existence of death penalty, but also help understand the rational nature of both the elimination and the preservation of death penalty, so as to define the basic direction towards which the State should make efforts in controlling death penalty in the context of promoting social civilization.

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On tort issues of blogs
FANG Yiquan , WANG Yong
Front Law Chin    2008, 3 (4): 583-599.   https://doi.org/10.1007/s11463-008-0028-2
Abstract   HTML   PDF (224KB)

In recent years the cases of blog infringement are on the increase, attracting more attention from all walks of life. The author provides a preliminary discussion on the status, elements, and judicial finding of blog infringement, as well as civil liabilities for blog infringement, in the hope of contributing to the research and legislative regulation of blog infringement.

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THE CHINESE MODEL OF THE RULE OF LAW
LIN Laifan
Front. Law China    2015, 10 (4): 657-669.   https://doi.org/10.3868/s050-004-015-0036-0
Abstract   PDF (221KB)

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.

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RHETORIC OF THE LAWYER AND PHILOSOPHICAL CONVERSATION
Guy Haarscher
Front. Law China    2016, 11 (3): 446-452.   https://doi.org/10.3868/s050-005-016-0026-7
Abstract   PDF (161KB)

The article focuses on the difference between strategic rhetoric and philosophical conversation. It first tries to distinguish between sophistical manipulation and valid strategic argumentation. In order to do that, the author tries to give a new meaning to the old Aristotelian tripartition between logos, ethos, and pathos. Then, he uses Chaim Perelman’s theory of argumentation to show that the standard of rationality in practical reasoning is a specific one. After having clarified the very concept of strategic argumentation, the author distinguishes it from the notion of philosophical conversation. He tries to show that if the latter is completely replaced by the former, the danger exists that victimization and morals “a la carte” will generate a defeat of critical thought.

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Research of the theory of public interest of the drafted Anti-monopoly Law of China
LI Guohai
Front Law Chin    2008, 3 (4): 525-539.   https://doi.org/10.1007/s11463-008-0025-5
Abstract   HTML   PDF (217KB)

The concept of public interest is the core concept of anti-monopoly law, whose core position is embodied in two aspects: On one hand, the concept of public interest is the ideological basis of generating modern anti-monopoly law; on the other hand, it serves as a platform for integration of multi-value of anti-monopoly law. The function of public interest concept of anti-monopoly law is embodied by public interest clauses of the Anti-monopoly Law. More specifically, public interest is an important standard in judging whether it restrains competition and a key basis of exception in application of the anti-monopoly law, and it influences the execution procedure of anti-monopoly law. The public interest clauses in the Anti-Monopoly Law have some defects, which should be improved in two aspects: One is to keep consistent in use of concepts,the other is to be rational in grasping the connotation thereof.

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China’s Private International Law (1978–2008)
Qisheng He
Front Law Chin    2010, 5 (2): 188-214.   https://doi.org/10.1007/s11463-010-0010-7
Abstract   HTML   PDF (273KB)

Since 1978, China’s private international law has made great achievements in publication of textbooks and reference materials, translation of foreign works, academic research, construction of subjects and disciplines as well as participation in international exchanges. The research on academic issues, to some extent, has helped to address various puzzles in legislation, judicature and construction of the discipline of China’s private international law, and has formed some theories in the representation of “one body of two wings.” Although there are still some flaws and issues, Chinese scholars in this field have both the capability and the mission to create a theoretical system for private international law with Chinese characteristics.

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The New Insolvency Law and Governance of Corporate Legal Person
WANG Weiguo
Front. Law China    2006, 1 (1): 79-91.   https://doi.org/10.1007/s11463-005-0004-z
Abstract   PDF (104KB)
Start of the insolvency proceedings influences the two basic problems of corporate governance: restriction about the soft budget  of corporation and information asymmetry  between the interior and exterior person. In fact, the insolvency law is a mechanism of the potential exterior supervision. In the insolvency proceedings, most of the information is open to the creditor and to the superintendent, who is liable for protecting the interest of the creditor. The key problems of corporate governance are transparency and information disclosure. The insolvency law provides the power of supervision to the creditor when corporation insolvency. Of importance is that power is conducted by collectivity and supported by judicatory and professional organization. In June 2004, the finance committee submitted the new draft of the insolvency law to the standing committee of the national people s congress. There are many articles about corporate governance. These articles are generally divided into two kinds, one is restriction on conduct of the supervisors in the period of the insolvency proceedings, and the other is examination of the conduct before the start of the insolvency proceedings.
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