Sep 2006, Volume 1 Issue 3
    

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  • Rural land ownership reform in China’s property law
    WANG Liming
    2006, 1(3): 311-328. https://doi.org/10.1007/s11463-006-0012-7
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    With regard to rural land ownership, there exist many problems, such as absence of the subject of right, ambiguity of the definition of right quality, and imperfection of the taking system. To perfect the rural land ownership system in China, we should continuously take villagers  groups and villages as the subject of collective ownership and affirm the right of the members of collective organizations. In order to promote the development of the rural economy and realize the value of land, the contractual management right should be deemed as a property right and allowed to be transferred. The transferability of collective land ownership should be gradually established and the process of taking should be further normalized. Meanwhile, the farmers must receive sufficient compensation. The house site usage right is a special form of right of usufruct. To follow the principle that property should be made best use of, the house site usage right should also be transferable.
  • Fundamental principles of the international protection system of intellectual property rights and the applications
    WU Handong
    2006, 1(3): 329-348. https://doi.org/10.1007/s11463-006-0013-6
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    Legal principle, which underlies the value of the legal system, is supposed to be the origin and basis of concrete legal rules. It has also resulted from abstracting and summarizing the value and spirit of these legal rules. In light of the universality and hierarchy of legal principle, the principles of the international protection system of intellectual property rights (IPR) can be divided into the following two types: one is the fundamental principles applied to the what, why and how a legal system shall be constructed, such as principles of sovereignty, equality and mutual benefit, joint development, and international cooperation,1 which also can be expressed as the principles of sovereignty, international coordination and cooperation, fairness and justice.2 The other type includes those existing in the legal system and capable of being applied directly, such as the principle of national treatment, principle of minimum standard, principle of independence (for industrial property right), principle of independent protection (for copyright), principle of compulsory implementing patent (for patent right) and doctrine of priority (for industrial property right), etc.3 In my opinion, the principles of the international protection system of IPR shall follow the latter model, indicating that they shall be provided and written in the international conventions on the grounds that they can be applied directly, and that they can be universally applied to the whole international protection system of IPR instead of exclusive application to one certain system. Hereupon, the author believes that principles concerning the international protection system of IPR should include the principles of national treatment, minimum protection standard and public interest.
  • On the integration of public law jurisprudence
    YUAN Shuhong
    2006, 1(3): 349-362. https://doi.org/10.1007/s11463-006-0014-5
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    After two to three hundred years of development, modern public laws have become more and more important, mature and integrated especially since the 20th century. Traditionally, the dispersive and overlapping public law researches were grounded on the sectional public laws like constitutional law, administrative law, criminal law, procedural law, international public law, etc. Nevertheless, with all-around emergence of public law, the traditional research method can no longer adapt to the development needs of the modern public law. Therefore, it is quite necessary for us to create a kind of moderate unified public law between the laws and the sectional public laws, so as to do comprehensive, integrated and systematic researches on various sectional public laws. Based on the indepth argumentation about the necessity of developing unified public laws, this paper further puts forward that, to discuss an all-encompassing way about the main problems of creating the unified public laws and expect to fill the gap with it, the unified public law should define its study objectives mainly focused on the contents of integrated public law criteria, common public law features and general public law rules and so on; form its theoretical basis on the line of the relations between public power and the citizen privilege; establish its category structure found on the concept of public power and the derivative core and basic categories; and build up the disciplinary system based on the systematic integrity of the public law research results.
  • Maritime security and the common interests of India and China
    ZHOU Zhonghai
    2006, 1(3): 363-371. https://doi.org/10.1007/s11463-006-0015-4
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    The world has changed dramatically over the years, and being two of the world s largest and most populous developing countries, India and China should remain in close touch on issues concerning developing nations. Today s challenges to maritime security increasingly comprise more non-traditional threats, such as terrorist acts against shipping, trafficking in weapons of mass destruction, piracy and armed robbery at sea, illicit transportation in narcotic drugs, psychotropic substances and nuclear substances, and smuggling of people and arms. It is therefore important to intensify cooperation at all levels to address threats to maritime security and safety in a comprehensive manner through bilateral and multilateral instruments and mechanisms aimed at monitoring, preventing and responding to such threats.
  • Economic constitutionalism: Path for state to intervene in the economy
    SHAN Feiyue
    2006, 1(3): 372-392. https://doi.org/10.1007/s11463-006-0016-3
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    Constitutional agreement and support is a necessity to a legitimate collective economic action. The purpose of economic constitutionalism is to determine the due process of government economic actions. Economic constitutionalism can provide a set of constitutional economic commands for the social economic actions. It is a path that allows the state to intervene in the economy. Under the structure of economic constitutionalism, liberty and intervention can be balanced. Only the intervention defined and established by an economic democratic mechanism can avoid economic autocracy. The share of economic powers by both the state and the social members can safeguard the social and democratic nature of intervention. Intervention is not always accompanied by the public, and the public is not inevitably superior to individuals. Individualism in the public is the value guide to form the public.
  • Reforming Chinese arbitration law and practices in the global economy
    ZHAO Xiuwen, Lisa A. Kloppenberg
    2006, 1(3): 393-422. https://doi.org/10.1007/s11463-006-0017-2
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    In the last 50 years Chinese arbitration law and practices has made significant contributions to the international commercial arbitration and strides to manage the rapidly increasing caseload associated with a period of amazing growth in economic interactions between Chinese and non-Chinese parties. In the global economy there are rooms for further improvement. The paper proposed some ideas on reforming the Chinese arbitration law and practices on the arbitration system regarding the ad hoc arbitration, panel system and tribunal jurisdiction, interim measures of protection, as well as standards for the judicial review on the arbitral awards.
  • China-ASEAN investment agreement negotiations
    CHEN Huiping
    2006, 1(3): 423-431. https://doi.org/10.1007/s11463-006-0018-1
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    China and the ASEAN are negotiating to establish a free trade area and an investment agreement is an integral part of it. The ongoing investment agreement negotiations have achieved some basic consensus as to specific contents of the agreement. However, due to the procedural obstacles and substantive controversies, the negotiations have become stagnant. In order to reach a final and successful conclusion of the investment agreement, the procedural obstacles should be overcome and the substantive controversies be settled since the agreement has economic and political implications for both China and the ASEAN.
  • Substantive rules of argumentation for value judgment in civil law: In the context of academic practice of civil law in China
    WANG Yi
    2006, 1(3): 432-454. https://doi.org/10.1007/s11463-006-0019-0
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    Value judgment is at the core of civil law. This paper explores how scholars of civil law reach mutual understanding and consensus on specific value judgment by rational discussion in the context of multiple value orientation. Based on a brief evaluation of the theory of legal argument and with the basic value consensus of Chinese civil law scholars as the premise, this paper proposes two substantive rules of argumentation for scholars of civil law to discuss value judgment: First, a strong of equal treatment should be carried out in the absence of sufficient and justified reasons or otherwise; Second, the freedom of civil subject should not be restrained in the absence of sufficient and justified reasons or otherwise. To reach mutual understanding, and on the basis of that to reach new consensus on specific value judgment further, scholars of civil law should base their discussions on substantive rules of argumentation for value judgment, follow rules and forms of argumentation as procedural techniques, and apply proper methods of argumentation. This paper also explores the application of substantive rules of argumentation on two specific value judgment issues of civil law scholars.
  • The consideration of ecological safety in judicial practice — also on the ecological safety legislation
    L? Zhongmei
    2006, 1(3): 455-461. https://doi.org/10.1007/s11463-006-0020-7
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    Ecological safety has been one of the hot issues of environmental law in recent years. The maintenance of ecological safety has become one of the legislative principles, as exemplified by the revision of the Law of Sand Prevention and Sand Management and the Law against Solid Waste Environmental Pollution, and the relevant rules that will be established. However actual cases will still happen, whether the legislators have made the statutory law or not. While scholars and legislators are debating, the judges have to handle cases and render judgments. Through the analysis of a case, this article will discuss the feasibility for judges to make ecological safety considerations in the judicial process by applying the principle of good faith and will also discuss the legislative issues related to ecological safety.
  • Hong Kong can develop its capitalist system only under the framework of the “One China, Two Systems” policy1
    Rao Geping
    2006, 1(3): 462-470. https://doi.org/10.1007/s11463-006-0021-6
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    Hong Kong is an administrative and economic entity under the sovereignty of the People s Republic of China, and has developed to be an international center for finance, trade and shipping for history reasons and international favor. Essentially, the local political system adopted by Hong Kong is that of a non-sovereign state as well as a non-political entity. In terms of its makeup, the political system is neither entirely occidental nor completely oriental but an administrative dominative system developed according to Hong Kong  s peculiar characteristics, which has been proved to be effective. It was true when the United Kingdom held the reins of power and it still continues since its territory was returned to the People s Republic of China.