Jun 2006, Volume 1 Issue 2
    

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  • The basic concepts of re-modifying the criminal procedure law
    CHEN Weidong
    2006, 1(2): 153-163. https://doi.org/10.1007/s11463-006-0001-x
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    Re-modifying China s Criminal Procedure Law has become an important topic within theoretical circles. Many scholars discuss the question of how to modify Criminal Procedure Law. The author considers re-modifying Criminal Procedure Law based on basic scientific ideas; if these ideas contain paying equal attention to fighting crime and protecting human rights, initially setting up a procedural idea and a view of legal truthfulness, giving priority to justice with due consideration to efficiency, and obeying and consulting the international criminal judiciary justness guidelines that will be followed in re-modifying Criminal Procedure Law, then this re-modifying will be successful.
  • Seeing the improvement of the criminal trial structure from China’s criminal courtroom arrangements (tribunal design)
    BIAN Jianlin, LI Jingjing
    2006, 1(2): 164-184. https://doi.org/10.1007/s11463-006-0002-9
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    The setting of criminal court has become an important representation of the criminal trial structure due to its visual and vivid reflection of the legal position and relations among the three parties of litigation, i.e. the prosecuting party, the advocating party and the judge. As a result of the influence of ancient inquest  centered trial mode, lack of the defendant s right to silence and incomplete revolution of the criminal trial mode, the existing criminal court setting features an umbrella shaped structure. To reform the criminal trial structure in China, we should eliminate the air of inquest  from the existing court interrogation mode, strengthen the hearing of evidence and set up a equiangular triangle shaped trial structure of neutral trial, equality between the prosecuting and advocating parties and litigant oriented.
  • On the theoretical basis for plea bargaining system
    WANG Jiancheng
    2006, 1(2): 185-192. https://doi.org/10.1007/s11463-006-0003-8
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    Before discussing the introduction of the plea bargaining system to China s criminal justice system, it is necessary to study its theoretical basis. Among which, the following aspects should be focused on: the philosophical viewpoint of pragmatism is its thinking basis; the concept of contract is its cultural basis; the structure form of adversary procedure is its systematic basis; and the system of right to silence and discovery of evidence are its symbiotic basis.
  • On integration of police and procurator
    YANG Zonghui
    2006, 1(2): 193-209. https://doi.org/10.1007/s11463-006-0004-7
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    In order to reform and improve the relationship between the police and the procurator, it has been asserted for many years that the system of integrating the police and the procurator, under which the procuratorate leads the police, should be established in China. However, it still has not been resolved. For ages it has been ignored that integrating the police and procurator in foreign countries is essentially based on the separation of powers and the litigious idea on doctrine of function and power. This system is not conformed with the primary purpose of the criminal justice system reform in China, which will result in misunderstanding the idea and ignoring the specialty of the political and law systems. Therefore, if the abuse is discovered only in the system of integrating the police and procurator, the outlet will never be found. The point is that, the reform should depend upon the change and the discrimination of the ideology. By only cloning the system of other countries, the inner relations won t be seen.
  • Capital punishment, criminals and enemies
    FENG Jun
    2006, 1(2): 210-220. https://doi.org/10.1007/s11463-006-0005-6
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    Right of life and life are different concept. The former is endowed w by state beforehand, which is proved through his behavior that he is deserved to own the right of life. The one who thoroughly offend the basic norm in the law is the enemy of our realistic world. If only the enemy still have danger to threaten the society, he should be executed to death penalty, and deprived of his life , but will not happen the problem of miscarriage of justice and inhumanity. The criminal s behavior just only denies part of norm in the law, however, who still is mankind and should possess of mankind s dignity, so we must abolish death penalty on them, miscarriage of justice is another reason of course.
  • On the criminal policy of China in regulating economy in transition
    LONG Zongzhi
    2006, 1(2): 221-231. https://doi.org/10.1007/s11463-006-0006-5
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    While detailing the emergence of such issues as problem-plutocrats, original sin, forced rule- or law-breakings during the transitional period (from a command economy to a market economy), the author of this article analyzes the advantages and disadvantages of rigid regulations as well as lax regulations which involve criminal policy in China. On that basis, the writer probes into the laws and overall criminal policy orientation that regulates the economy during our current transitional period (from command economy to the market economy). He argues that certain leniencies may be appropriate to lesser crimes, since in fact developing the economy depends upon the success of entrepreneurial businesses throughout the nation.
  • The era of globalization and Chinese jurisprudence——building the concept of “subjective China”
    DENG Zhenglai
    2006, 1(2): 232-248. https://doi.org/10.1007/s11463-006-0007-4
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  • The miscarriages of justice in late Qing Dynasty—analysis focused on the original trial judge Liu Xitong in the case of Yang Naiwu and Xiao Baicai
    ZHENG Ding, YANG Ang
    2006, 1(2): 249-266. https://doi.org/10.1007/s11463-006-0008-3
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    This article introduces the case of Yang Naiwu and Xiao Baicai, a famous case in late imperial China, and its important value for the study of legal history of the Qing Dynasty. Based on the analysis of this case, this article focuses on the issue of the responsibility of the magistrate Liu xitong, the judge of this case, who analyzed the mentation of his miscarriage under the pressure of the rules about judges responsibilities in their judgment through which reveal the stimulation and passive infection of the judgment of the judges.
  • The legislative choice on the right of priority
    GUO Mingrui
    2006, 1(2): 267-280. https://doi.org/10.1007/s11463-006-0009-2
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    The right of priority, or preemption, is the security interest of priority claim enjoyed by the creditor to the ordinary or particular properties of the debtor provided directly by law. It can be distinguished clearly from similar rights and can be stipulated in the Law on Property Rights. The right of priority falls into the category of security interests. Though it differs from the guaranteed security interest or lien, the right of priority, taking the property as its object, the guarantee of the performance of particular creditor s right as its aims, possesses the basic characteristics of the security interests. Thus, such a rule shall be stipulated in the Law of Property Right. The right of priority is instituted directly by the law in consideration of the social legislative policies. Such considerations are necessary to the realization of social fairness and justice and the protection of public interests and social welfare. From the perspective of legislative polices and techniques, it is more reasonable to institute the right of priority in the Law of Property Right than resort to other replacing rules in order to secure particular creditor s right. Instituting the right of priority in legislation will not increase the risk of deals; on the contrary, it will help the parties concerned foresee risks. Therefore, it helps safeguard the safety of the deals.
  • Analytical review on the major issues of the new bankruptcy (law) legislation
    WANG Xinxin
    2006, 1(2): 281-299. https://doi.org/10.1007/s11463-006-0010-9
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    The bankruptcy law is an integral part of the legal system of societies with market economy. After many years of preparation, the draft of the new bankruptcy law in China was submitted to the Standing Committee of the National People s Congress twice and is waiting for the third approval to be enacted. Drawing on the experiences of other countries, the new bankruptcy law tries to carry out the concepts of market economy, eliminate the residual influences of planned economy that existed in the old law, protect lawful rights and interests of creditors and debtors, and maintain the order of socialist market economy. This thesis analyzes and researches on the major and controversial issues that emerged during the legislation of the new bankruptcy law from the aspects such as the principle of the legislation, criteria of bankruptcy, preservation or abolishment of policy-related bankruptcy, protection of the employees  rights and interests of bankrupt enterprises, the creditors  committee system, the trustee system, reorganization system to prevent bankruptcy, and the legal obligations of bankrupt, and so on. It also gives a comprehensive introduction to the innovation and modification of the new bankruptcy law.
  • The values of administrative procedural law and the meaning of its codification in China
    MA Huaide
    2006, 1(2): 300-310. https://doi.org/10.1007/s11463-006-0011-8
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    Administrative procedural law has the value of justice, efficiency and order. Codifying administrative procedural law in China means promoting the development of democratic politics, protecting basic civil rights, curbing and eliminating corruption, building a clean and honest government, overcoming bureaucracy and enhancing administrative efficiency. Establishing an administrative procedure code that unifies administrative legislation, enforcement and judicial procedures is a goal that must be realized in the future.