Dec 2006, Volume 1 Issue 4
    

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  • China’s rule of law in the globalization era
    ZHANG Wenxian
    2006, 1(4): 471-485. https://doi.org/10.1007/s11463-006-0022-5
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    Globalization of the economy, public affairs, human rights, environmental issues and laws indicate the developing tendency of human beings and society, and this has a great influence on the third reform of Chinese law in many aspects. Upon its entrance into the WTO, China carried out a large-scale clarification and amendment of its laws and regulations, and incorporated itself into the global governance structure. This marks the beginning of the third legal reform in the country. This reform includes the reform of the political and legal system, restructuring of the legal system, and evolution of the real meaning of law. In the future development of Chinese law, the fundamental nature of modern, global and human civilization, and the legal profession will penetrate much more into the whole Chinese law and its operation.
  • The birth and growth of modern jurisprudence in China
    HE Qinhua
    2006, 1(4): 486-513. https://doi.org/10.1007/s11463-006-0023-4
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    This paper relates the birth and growth of modern jurisprudence in China, summarizes several representative works on modern jurisprudence, such as The Development History of China s Jurisprudence, and describes the features that characterize the process of its birth and growth, so as to systematically explore the formation and development of China s modern jurisprudence from the revision of law in late Qing Dynasty to the founding of the People s Republic of China in 1949, and to prove that modern jurisprudence is the starting point and cornerstone for contemporary jurisprudence and the source of its development and prosperity in China.
  • Criticism on the urbanized trend of Chinese law research
    DENG Zhenglai
    2006, 1(4): 514-523. https://doi.org/10.1007/s11463-006-0024-3
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    By referring to the phenomena of the ever intensifying consummation of anti-fake laws resulting in ever increasing inundation of faking cases, this article describes the correlation between the consumers  rights and the research on Chinese law. It is further pointed out that the relationship between the study of Chinese law and the protection of consumers  rights typically interprets the difficult situation of Chinese law research: On the one hand, Chinese law does not give the required attention to the protection of consumers  rights concerning people s health and life safety. Worse, all the discussions about the issues of consumers  rights are all oriented on serious urbanization tendency and departmental law science tendency, judging or measuring the concrete realities of consumers  rights in China based on the concepts of western laws. The specific time-and-space element of China endowing essential meanings in the research of consumers  rights in Chinese law as the base and evidence of research is eliminated, leaving the research of Chinese law in a distorted position in China.
  • Law-making functions of the Chinese courts: Judicial activism in a country of rapid social changes
    WANG Chenguang
    2006, 1(4): 524-549. https://doi.org/10.1007/s11463-006-0025-2
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    The judicial production of law and the legislative production of law make a striking distinction between the two legal traditions. Despite of these differences, judges in both legal traditions in adjudicating cases have a common task, which is the application of legal rules to the facts of cases pending for judgments. The tension between the certainty and the discretion  is universal for any legal system and, to a certain extent, it poses a hard dilemma for the rhetoric of rule of law. In the transitional countries such as China where rapid social changes and transformations take place, the judiciary and judges can not escape from taking more active roles in interpreting or even law making process. It arouses much controversy, particularly in continental legal traditions, for the judiciary is deemed to perform a mechanical role in adjudicating cases. This article intends to analyze the needs for judicial law-making function in China and its reasons. It reveals that judicial interpretation constitutes an important source of law despite its ambiguous legislative position. The article argues that judicial activism is inevitable against the transitional nature of current Chinese society.
  • Reform of lawsuit system and revision of filing conditions
    ZHANG Weiping
    2006, 1(4): 550-565. https://doi.org/10.1007/s11463-006-0026-1
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    Currently the Civil Procedure Law stipulates rather high conditions  for lawsuits and the reason is that in the institutional design, we have equated the conditions of adjudicating the merits with those of lawsuits and the initiation of lawsuits. The trial of conditions of adjudicating the merits are usually conducted after the beginning of lawsuits, while in China it is carried out before the beginning of lawsuits, and thus the related procedures have become a kind of pre-lawsuit procedures , and theoretical and institutional confusions and contradictions arise. This article is of the opinion that filing conditions should be separated from those of adjudicating the merits, and the trial of the latter should be incorporated into the proceedings. A dual  trial structure should be constructed, that is, the trial of conditions for adjudicating the merits goes parallel with that of merit disputes. In the attempt to improve civil procedures, attention should be given to the institutionalization of conditions of adjudicating the merits, which should be reasonably designed and integrated into relevant systems. When reforming the lawsuit system, we should also adjust the courts  trial organs. We recommend not setting up any case-filing or appeal divisions and removing the existing separation of case-filing and trial .
  • Disputes about corporate expression absorption and their legal remedies
    GUAN Xiaofeng
    2006, 1(4): 566-594. https://doi.org/10.1007/s11463-006-0027-0
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    Corporate expression is the expression that a company gives to the outside in its capacity as a legal entity. Often referring to resolutions made by shareholder meetings and the board of directors, based on good faith and bound by contractual spirit, a company must be held liable for its expression. Corporate expression absorption refers to the corporate behaviors and situations wherein the majority voting shareholders and directors replace the will of the minority voting shareholders and directors within their own will. Among them, the majority voting shareholders at a shareholders  meeting (shareholders  general meeting) are decision-making shareholders, and directors, managers and other senior management staff that decide corporate affairs are called decision-making members. Corporate expression absorption consists of two sorts: absorption by shareholders  meeting and absorption by the board of directors. Shareholders  meeting is a company s authoritative organization; when the voting rights of some shareholders exceed the statutory limit, they will be able to manipulate the expression of shareholders  meetings and replace the will of other shareholders with that of their own. The expression absorption by the board of directors refers to the practice wherein the majority directors decide on important corporate matters in accordance with the majority rule. Thus, it can be seen that the corporate expression absorption is a double-edged sword, not only capable of uplifting operational efficiency but also likely to help decision-making shareholders achieve personal gains and transfer corporate interests. As for the disputes of corporate expression absorption, the following legal remedies might be adopted: (1) Limit the voting rights of decision-making shareholders. (2) Provide shareholders with veto power over specific events. (3) Ask the chambers of commerce (industry associations) to arbitrate specific events. (4) Preserve the market value of shares held by dissenting directors. (5) Expand cumulative voting; (6) Provide shareholders the right to exit. (7) Legal remedies for corporate deadlock. (8) Shareholders  derivative lawsuits.
  • The establishment and characteristics of China’s extradition system
    HUANG Feng
    2006, 1(4): 595-615. https://doi.org/1007/s11463-006-0028-z
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    Through analyzing the 25 bilateral extradition treaties that China concluded with other countries and the background of relevant legislation and treaty conclusion, the author delineates and discusses the establishment and basic characteristics of China s extradition system. These characteristics are mainly as follows: (a) introduction of basic rules through bilateral treaties; (b) establishment of a scientific double examination to standardize and formalize extradition cooperation; (c) principle-centered, flexible and open towards extradition cooperation, and take the extradited person as a party to the extradition proceedings and give attention to the protection of his human rights.
  • How to legally define the plagiarism and rational use in academia
    TANG Xiaotian
    2006, 1(4): 616-628. https://doi.org/10.1007/s11463-006-0029-y
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    With regard to the protection of copyright, a difficult issue is how to differentiate rational use and plagiarism reasonably. This paper focuses to analyze the commonly-seen academic transcription by making a proposition that the judgment to it shall be conducted by the time, content and the similarity, which briefly introduces some major means for judging it and points out several difficult issues concerned.