Jun 2010, Volume 5 Issue 2

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  • research-article
    Liming Wang, Youjun Zhou

    Over the past 30 years, Chinese civil and commercial law has made great achievements in providing theoretical support for Chinese legislation, establishing a theoretical system of civil and commercial law with Chinese characteristics, conducting in-depth and comparative research in this field, and making many summaries of trial practices, judicial interpretations and case studies of civil and commercial affairs. The academic circle has expressed professional comments regarding public events. The major theoretical breakthroughs include the clarification of the relationship between civil law and economic law, further research on the civil code system, basic consensus on the integration of civil law and commercial law, formation of the theoretical system of property right law with Chinese characteristics, innovation and development of contract law theories, basic information of personality law theories, and formation of the theoretical system of tort law. The orientation of Chinese civil and commercial law is to enhance comparative research on civil and commercial law nationally and internationally, focusing on the diversity of research methodologies.

  • research-article
    Qisheng He

    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.

  • research-article
    Jingwen Zhu

    As China’s society is developing towards modernization, the role of law is increasingly prominent. Due to the legalization progress, there will be a trend of more laws and litigations. Over the past 30 years, the problems of reform and opening up in Chinese laws have become apparent. While the quantity of legislation is rapidly growing, the issues appear as follows, i.e., how to ensure the quality of legislation and enforce the formulated laws effectively, how to tackle the contradiction between the limited resources and the ability to settle disputes, and the relationship between litigations and other means for settlement of disputes when the courts facing more litigations.

  • research-article
    Feihu Ying

    In recent years, whether the inspection-free system in China should be kept or abolished has become a focus for the media, the public, academia and administrators. This article aims to discuss the consequences of the inspection-free system. It is found that the inspection-free products are unlikely in high quality, rather an outcome generated by improperly inflating the inspection-free marks through the interactions of administrations, enterprises, consumers, the media and quality indicators. Due to the great difficulty in inspecting product qualities and measuring their potential harm, the implementation of the inspection-free system would adversely affect the product quality monitoring. As a consequence of the short-sighted consideration at formulation of the inspection-free system, it is suggested to get rid of it. In case that the General Administration of Quality Supervision, Inspection and Quarantine of China (“AQSIQ”) prefers to have the current system kept in consideration of promoting the information access and enforcement efficiency, some modifications should be made in terms of punishment measures, product quality supervision and reserved application.

  • research-article
    Qian Wang

    If any video-sharing websites, without authorization, directly upload film and television works to a server to be shared by subscribers, and do editing and verification in advance on the infringing videos uploaded by subscribers, it is regarded as “direct infringement.” However, the overwhelming majority of video-sharing websites provide information platforms for subscribers to automatically upload videos, and in such case, how to determine the tort liability of those websites remains ambiguous. The Regulations on Protection of the Right of Communication through Information Network of China impose harsh liabilities on video-sharing websites by incomplete reference to the US “vicarious liability,” consequently hampering the development of normal business. It shall be reasonably identified whether the operator of a website “should have known” there exist infringing videos uploaded by subscribers according to the “Red Flag Test,” in reference to the columns set by the video-sharing website. In condition that a mature and effective filtering technology has been accepted by the market, it shall be taken as the subjective fault for a video-sharing website to refuse shielding the uploading of infringing videos with such technology.

  • research-article
    Jia Hao

    Domestic violence, as its great harm to family members and family relationship, is one of the important issues to be tackled by family law. In this regard, China’s Marriage Law mainly adopts non-litigation measures, including dissuasion and curb of perpetrators, mediation for the parties concerned and imposition of administrative punishment. From the legal techniques in family resource sharing, the diversity of interests within a family, the complexity of family relationships and the privacy of family determine the non-antagonistic, nonlinear and non-proactive measures for adjusting family relationship. Further, in the principle of “family priority based on personal independence” and with the prerequisites of the prevention framework set up in the Marriage Law, it is suggested to make restrictive provisions on parental rights in protecting the minors, fully utilize the current civil mediation system to settle family disputes, and set up a system of “personal protection and behavioral correction.”