Mar 2010, Volume 5 Issue 1
    

  • Select all
  • Research articles
    The “Waiver of Right” Issue in Chinese Civil Claims for War Reparations from Japan—Review of the Two Judgments of the Supreme Court of Japan on April 27, 2007 —Review of the Two Judgments of the Supreme Court of Japan on April 27, 2007
    Ming Jin ,
    2010, 5(1): 1-26. https://doi.org/10.1007/s11463-010-0001-8
    Download PDF
    It is still a hot debate: Does China still have the rights to civil claims for war reparations from Japan in spite of its signature of the Sino-Japanese Joint Communiqué of 1972? The Supreme Court of Japan has recently made a number of relevant judgments on this issue, which have cited several specific reasons and have touched on the principles of customary international law and the officially disclosed negotiation documents on the normalization of China-Japan diplomatic ties. This paper is a response to the reasons cited by the Supreme Court of Japan, which analyses the controlling doctrines and issues involved in this debate, including the Framework of Peace Treaty of San Francisco with Japan, the legal effect of the Sino-Japanese Joint Communiqué and its relationship with the Peace Treaty between Japan and Taiwan (China). Through this analysis, this paper reaches the conclusion that the Sino-Japanese Joint Communiqué does not waive the civil claims of China for war reparation.
  • Research articles
    Analysis on the Impact of the “Dilution Theory” on Ruling of Trademark Cases— Research on 100 Judgments of Well-Known Trademark Cases — Research on 100 Judgments of Well-Known Trademark Cases
    Yougen Li ,
    2010, 5(1): 27-55. https://doi.org/10.1007/s11463-010-0002-7
    Download PDF
    Chinese trademark law has established the cross-category protection system of well-known trademarks based on the confusion theory. The system, however, has many problems in practice and does not fulfill completely the needs for protecting well-nown trademarks. Consequently, when hearing trademark cases, some judges have abandoned the confusion theory instead of using the dilution theory in judging well-known trademarks. Through analysis on 100 judgments concerning well-known trademark cases, it can be seen that the influence of the dilution theory on the ruling of trademark cases is increasing. Certain conditions should first be satisfied when introducing the dilution theory to rule trademark cases: Firstly, the contents of the dilution theory shall be grasped as correctly as possible to avoid plausible understanding; secondly, the application of the dilution theory shall adopt the existing institutional criteria as much as possible by full use of the leeway of interpretation provided by the existing system.
  • Research articles
    Study of Issues over Public Hearing in Death Penalty Cases
    Yuguan Yang ,
    2010, 5(1): 56-76. https://doi.org/10.1007/s11463-010-0003-6
    Download PDF
    The death penalty is involved in the most severe criminal offenses. Holding public hearing in these cases seems to be the best way to guarantee judicial fairness. A public hearing in death penalty cases is of important significance in safeguarding judicial fairness and protecting human rights, which has attracted a high level of attention domestically and internationally. This paper interprets the requirements of the United Nations’ related agencies for the public hearing of death penalty cases, defines the nature of public hearing in the aspects of rights and obligations, analyzes the special nature of the requirements for the public hearing of death penalty cases, introduces some practices and issues of the public hearing of death penalty cases in foreign countries, analyzes China’s present practice of the pubic hearing of death penalty cases and puts forward some suggestions and channels to realize it.
  • Research articles
    Reforms in the Petition Letter and Visit System of China and Construction of a Harmonious Society
    Xiaotian Tang ,
    2010, 5(1): 77-90. https://doi.org/10.1007/s11463-010-0004-5
    Download PDF
    A petitioner participates in the administration of public affairs at his own discretion. A cooperative relationship exists between the petitioner, petition letter, office visits and the related functional departments. Good governance is reflected in petition system which is to set up a balance between public interests and citizens’ private rights. Institutional reform regarding the petition letter and visit system should focus on the “settlement of issues”. The specific design of the petition reform must comply with the requirements of good governance, balancing the rights and serving the interests of the parties concerned. Only in this way, can we achieve cooperative and harmonious governance of the society and still allow for the involvement of various forces in the society. The petition system plays an important role in promoting the cooperation and mutual assistance of public power and private rights, executing two-way persuasions, improving error corrections and regulating the settlement of disputes.
  • Research articles
    Understanding of Criminal Reconciliation in Ancient China
    Xiaofeng Wu ,
    2010, 5(1): 91-114. https://doi.org/10.1007/s11463-010-0005-4
    Download PDF
    It is the duty of literature on criminal law to record the states orthodox criminal legislation and justice. However, it is difficult to find a systematic and sufficient historical literature for directly expounding the criminal reconciliation outside the state criminal litigation system. This is a civil act among people or a non-statutory criminal reconciliation. Meanwhile, the object of historiography of modern criminal law is usually limited to the evolution and development of the state criminal law and official criminal justice. Thus researchers focus on these areas leaving little systematic evidence for scattered, local, individual, non-statutory and non-normalized criminal reconciliations between victims and offenders. However, upon investigation of the long standing institutional change of Chinese society as well as an analysis of the social reality reflected by Chinese traditional social and legal cultures, it can be confirmed that criminal reconciliation in ancient Chinese society existed reasonably and necessarily.
  • Research articles
    Legal Analysis of Credit of Jin Merchants
    Daigui Shang,
    2010, 5(1): 115-129. https://doi.org/10.1007/s11463-010-0006-3
    Download PDF
    Jin merchants made great contributions to China’s business history with their splendid commercial accomplishments throughout a long history. In the course of the formation and growth of Jin merchants, their outstanding credit has played a significant role. This is mainly reflected in the professional ethics from their commercial achievements, outlook of values on credit orientation, personnel promotion, incentive mechanism and restraining mechanism. The valuable credit accumulated by Jin merchants is of unique value and based on a perpetual charm, and it is a precious heritage for entrepreneurs today and in future.
  • Research articles
    Analysis on the Legal Protection of Merchandising Rights in Characters
    Yajun Liu , caojunjing_0412@sina.com,
    2010, 5(1): 130-142. https://doi.org/10.1007/s11463-010-0007-2
    Download PDF
    The case of cartoon character “San Mao” triggers broad debates on merchandising right in fictional characters within the academic circle of intellectual property law. For lack of explicit legal provisions and theoretical supports, the final judgments of such cases may be unfair or inconsistent. By introduction to the origin of the merchandising right in fictional characters and the practice of its protection in the US, this paper holds that China shall learn from the US comprehensive protection mode in practice, give consideration to its protection standard formed in its case law, research typical cases and, if necessary, establish the standard on protection of the merchandising right in fictional characters by judicial interpretations.
  • Research articles
    Disequilibrium in the Supply of Legal Scholars and the Demand by the Judicial Profession and the Correction of This Unbalance through Reforms in the Legal Education System in China
    Qingyu Xu ,
    2010, 5(1): 143-164. https://doi.org/10.1007/s11463-010-0008-1
    Download PDF
    The basic function of legal education is to cultivate and create talented legal professionals who will be employed, either directly or indirectly, in judicial practice sectors. Thus, there is, between the legal education system and the judicial profession, a supply-demand relationship—the basic economic principle between the relationship of market supply and demand, driving the relationship between the legal education system and qualified legal professionals. However, this supply-demand relationship in China, between the legal education system and the judicial profession is currently in disequilibrium and in contradiction itself. Therefore, it is necessary to observe and apply the principles of a supply-demand relationship to the reorganization of the legal education system in China in an attempt to find the most efficient balance between legal education and the judicial profession.