Mar 2007, Volume 2 Issue 1
    

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  • Ten tendencies of criminal justice
    HE Jiahong
    2007, 2(1): 1-22. https://doi.org/10.1007/s11463-007-0001-5
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    A study of the global tendencies of criminal justice will help us design a more scientific and rational pathway for the reformation of existing criminal justice system of China. In the forthcoming several hundred years to come, the world s criminal justice is to take on ten tendencies, that is, the tendency toward unity, civilization, science, rule of law, human rights, justice, efficiency, specialization, standardization and harmony.
  • Transcending the dilemma of “public interest” —on the meaning of the taking clause in the U.S. Constitution and its signifi cance for China
    ZHANG Qianfan
    2007, 2(1): 23-43. https://doi.org/10.1007/s11463-007-0002-4
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    This paper discusses the evolution and recent trends in the development of the constitutional concept of public use  in the case-law history of the United States starting from the source of US government s taking powers and the original meaning of the Taking Clause in the Fifth Amendment of the United States Constitution. Since the concepts of public use  and public interest  are extremely difficult to be defined, it is very hard for the US courts to develop a relevant operative criterion. In the United States, the safeguard of public interest  in taking mainly lies legislative rather than judicial control. In a democratic society, legislative judgment is highly respected by the courts and the entire takeovers that conform to public use as determined by the Congress are usually deemed constitutional. In this sense, the Congress is a public interest machine , which automatically generates laws and decisions on behalf of public interests through the democratic representative process. The paper eventually suggests that China should divert its attention from the theoretical definition of public interest  to institutional construction, and should make the National and Local People s Congresses and their standing committees to play major roles in deciding taking and compensation schemes.
  • A reflection on the history of Chinese constitutionalism of last century
    MA Xiaohong
    2007, 2(1): 44-70. https://doi.org/10.1007/s11463-007-0003-3
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    The academic circle often attributes frustrations of Chinese constitutionalism to the resistance of traditions. This article is of the opinion that the constitutionalism in modern China failed to be as what its framers expected precisely because of its inability to find motivation from traditions. Only when connecting itself with Chinese traditions can the flower  of western constitutionalism get rooted in this land. Li  (rites) is the backbone of Chinese traditions, but the rule by li, as the symbol of Chinese civilization, necessarily finds itself the focus of modern criticism on traditions. Yet, the negation and criticism that lasted for more than a century did not wipe out the imprint of history. Perhaps, in this age of unprecedented stability and easiness, we are more likely to find out the rational part implied in the rule by li as well as its particularity and lasting popularity in China. Rather than blind criticism or refusal, we should reflect, discuss, reconstruct, and rejuvenate the rule by li, and this may be an effective approach for Chinese constitutional reform.
  • A commentary on the principle of the child’s best interests —the weakness and improvement of marriage and family law
    CHEN Wei , XIE Jingjie
    2007, 2(1): 51-66. https://doi.org/10.1007/s11463-008-0004-x
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    International documents like the Declaration of the Rights of the Child (1959) and the Convention on the Rights of the Child (1989) propose that in mediating on children issues, the best interests of the child should be the primary consideration. In China, the Constitution and the Law on the Protection of Minors have already set out the terms in principle for the protection of minors, however, it has not been defined in the Marriage Law (2001). In order to enforce the commitment of respecting and safeguarding human rights, the child’s best interest principle should be established in marriage and family law, along with amending related provisions.
  • The injustice and reconstruction of procedures in eminent domain and land acquisition
    CHENG Jie
    2007, 2(1): 65-97. https://doi.org/10.1007/s11463-008-0005-9
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    Eminent domain should be regulated, the key to which is procedural restraints. Initiating procedure can organize, adjust, and setup a system of due process for claiming land acquisition, which serves to facilitate bargaining for an objective price. Since the exclusivity of property rights is affected by eminent domain power, applying transaction rules in the market to assess the fairness of the compensation is difficult. Currently, the procedural injustice is the key to the abuse of eminent domain powers, and the procedural deviation reflecting in laws and guarantees are either too vague or absent. Thus it is proposed that an institutional +reform should include procedural openness, liability for procedural errors and disposition of judicial review in advance, with the aim to guarantee the legitimacy, effect, and security of land acquisition.
  • Intellectual property laws integrated with the national development policies in China
    WANG Guanxi, LI Xiaoping
    2007, 2(1): 71-91. https://doi.org/10.1007/s11463-007-0004-2
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    As a developing country, China has been pressured by the developed countries to increase the levels of intellectual property (IP) protection and to adopt IP rules that even go beyond the minimum international standards. IP regimes are established to promote advances in science and culture by rewarding creation and invention. However, developing countries do not necessarily appropriately share the benefits from the harmonization of IP protection standards over the world. Fortunately, not every developed country or international organization is concerned only with its own interest when evaluating the tendency of international IP protection policies. In fact, they have made many studies or findings in favor of the concerns and interests of developing countries. This paper investigates the conflicts between IP rights and human rights, as well as the validity of IP laws under constitutional arguments, with the purpose of providing new strategic policy arguments in China s future amendments to IP 1aws, and related negotiations with developed countries.
  • Applied difficulties of conditions for bail pending trial and institutional solutions — seeking interaction between “facts” and “rules”
    SONG Yinghui, LEI Xiaozheng
    2007, 2(1): 92-108. https://doi.org/10.1007/s11463-007-0005-1
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    In the domain of bail pending trial in China, there is a deep-cutting tension in bail pending trial between the practical conditions in judicial practice and the legal conditions established by legal authorities. Based on the data and information collected, this article investigates the conditions of bail pending trial in the aspects of rules and facts, and looks for an institutional solution to reconstruct the system of bail pending trial that can realize the interaction between the facts and rules.
  • Transformation of the view on crimes in modern China
    LI Weihong
    2007, 2(1): 98-115. https://doi.org/10.1007/s11463-008-0006-8
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    The view on crimes has progressed from the past monism to the present pluralism. In modern China, the concept of crime is in pluralism. The so-called pluralism here means the many concepts of crime not only co-exist macroscopically within a society, but also microcosmically within a single social member. The pluralism of the concept of crime provides us with a multiangular cognition for the complicated phenomena of crime. As a process of the transformation of the view on crime, it has developed from absolutism to relativism, from scientism to humanism, from conservatism to liberalism, from structuralism to progressivism, and from the pattern of state control to the pattern of social control.
  • On realization of equal election for farmers in China
    CHENG Naisheng
    2007, 2(1): 109-122. https://doi.org/10.1007/s11463-007-0006-0
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    With the election rights of farmers, there exists inequality not only in practice but also in legislation. How do we view such inequality? We do not think that such inequality is entirely the result of artificiality. It depends on the historical status of farmers, especially the level of the productive forces they represent. In China, provided the majority of the residents are farmers, who are small individual farmers, it is plausible that farmers cannot acquire the equal election rights in legislation. However, we shall create conditions for actively promoting the realization of farmers  equal election rights in legislation. The day when the majority of farmers become the producers and operators of commodities will be the time when farmers in China realize their equal election rights in legislation.
  • Income tax evasion in the United States and China
    WANG Yinying
    2007, 2(1): 123-139. https://doi.org/10.1007/s11463-007-0007-z
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    This paper compares income tax evasion in the US and China with regard to several aspects, including income tax evasion laws and cases, problems both countries face and their possible solutions. It provides a general picture of income tax evasion in the US and China from both theoretical and practical perspectives. In the last part of the paper, errors in translation on some websites are present to remind readers to be wary of such errors.
  • Orientation for the amendments to the State Indemnity Law of China —in view of the demarcation between indemnity and compensation
    WANG Kai
    2007, 2(1): 140-166. https://doi.org/10.1007/s11463-007-0008-y
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    Traditionally, the understanding of the demarcation between indemnity and compensation starts from Rechtswidrigkeit (illegality). However, with the rise of Erfolgsunrecht theory  and the objective base of negligence, and with the convergence of the theoretic bases of compensation and indemnity, the demarcation between compensation and indemnity is vanishing. This phenomenon should have given rise to our retrospection on the traditional research on the methods of state indemnity, which, at the same time, would be of a big influence on the orientation of the amendments to our State Indemnity Law and how to adopt the legislation on administrative compensation. Hence, it is necessary to reconstruct the elements of state indemnity and administrative compensation.