Dec 2007, Volume 2 Issue 4
    

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  • Functions of cases in traditional Chinese law
    WANG Shirong
    2007, 2(4): 493-517. https://doi.org/10.1007/s11463-007-0023-z
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    In traditional Chinese law, cases are the judicial decisions of general effects determined by special procedures. Before the Period of Spring and Autumn and Warring States, the main form of Chinese law was cases. After that period, Chinese legal system had gradually accommodated various forms in coexistence, with codes as the main body but cases as supplementary. Such a system maintained for a long time. Those cases in the codification era were based on codes and functioned to broaden the scope of legislation, supplement the legislative techniques and strengthen the effect of rules. As to the relationship between the establishment rule and the recurring rule of cases, ancient Chinese law persisted in the recurring rule and thus it maintained a relatively steady supply of rules while maintaining an inner stable legal forms.
  • Mode of making legal decisions
    ZHENG Yongliu
    2007, 2(4): 518-537. https://doi.org/10.1007/s11463-007-0024-y
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    Legal decisions are results of the use of law, which includes the application of law and the finding of law, but mainly referring to the latter. In the application of law, facts match norms, and thus legal decisions could be obtained directly through deduction thereof, which is called the deduction mode. However, in the finding of law, since facts are not symmetric to norms, before making judgment through deduction, facts and norms shall be equalized. That is to say, facts shall be generalized and then upgraded to the provisions, while norms shall be concrete and downwards to specific cases, conducting for spiral upwards, which is called equalization mode.
  • Review on the ineffi ciency and disorganization of judicial power —consideration on the development of civil proceedings
    XIAO Jianhua
    2007, 2(4): 538-562. https://doi.org/10.1007/s11463-007-0025-x
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    The reform of civil procedure has been taken as an important topic by both scholars and judges in the recent twenty years. Cases and judges’ practices offer materials and opportunities for scholars to carry out researches, which help judges find the direction of the reform on civil procedures. However, it is not advisable to reconstruct the absolute adversary system and pure due process in China to reduce the great power of the court. Therefore, it is essential to review on the basic theory of civil procedure and overcome the inefficiency and disorganization of the judicial power by regulating judges  power and independence as well as their responsibilities.
  • Analysis on the designing principle of the classification system in the Civil Service Law of China
    SONG Shiming
    2007, 2(4): 563-585. https://doi.org/10.1007/s11463-007-0026-9
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    The classification system for Chinese Civil Servants is one of the most basic systematic devices in the Civil Service Law of China. The aim of designing such a system is to solve the hard issue of extreme narrow channels for career development of civil servants. The legislative thoughts of such a system include: orientation of post classification, absorbing reasonable elements of the rank classification system, aiming at optimizing the management and taking incentive safeguard as a main line, and its basic contents include: classification of the positions into general administration category, professional and technical category, administrative law enforcement category, judges and procuratorate category; diversification of position arrangement; clarification of the contents and functions of different ranks; and standardizing the mapping relationships between ranks and positions.
  • On legal personality of human vegetables and protection of their rights
    YANG Lixin, ZHANG Li
    2007, 2(4): 586-615. https://doi.org/10.1007/s11463-007-0027-8
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    Although human vegetables lose their capacities of will and do not have the intrinsic attribute of civil subjects, they still have legal personalities and the status of civil subjects. The law has not provided for defects of their legal personalities, and thus civil law shall include human vegetables as objects of guardianship. The system of adult guardianship shall be constructed to supplement and correct the legal personalities of human vegetables. When human vegetables enter into a permanent vegetative state or state of brain death, law may declare the termination of legal personalities of the human vegetable. Due to the unique life state and capacity of act of human vegetables, the exercise of their civil rights faces a series of legal difficulties and challenges, mainly involving important issues such as the right of treatment for life rescue, marital right and reproductive right. The civil law shall ensure that the civil right of human vegetables can be fully enjoyed and effectively protected.
  • On legal issues of independent directors
    GUAN Xiaofeng
    2007, 2(4): 616-633. https://doi.org/10.1007/s11463-007-0028-7
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    In order to avoid independent directors from being against minority shareholders, and urging them to play the role of checking up big shareholders and insiders with full power in listed companies, the rules for independent directors shall be amended gradually. Currently, the reform on the independent director regime shall be made in some aspects. First, the positions of independent directors shall be held by qualified professionals; Second, independent directors shall pass the exam for such posts; Third, independent directors shall take full-time jobs; Fourth, the firms of independent directors shall be established with limited partnership liability; Fifth, independent directors shall undertake joint liabilities.
  • On the legal place of arbitration and its determination
    ZHAO Xiuwen
    2007, 2(4): 634-646. https://doi.org/10.1007/s11463-007-0029-6
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    The paper studies the concept of the place of arbitration in comparing with the legislation and practices of international commercial arbitration. It also stresses on the connection and distinction between the place of arbitration, the place of hearing, and the place where the arbitration tribunal deliberates the case, as well as the method of deciding the place of arbitration. The author also analyzes the current legislation and practices of the determination on the place of arbitration in China. The paper pointed out that it is important in both theory and practice to promote international arbitration in China and amend domestic arbitration legislation in determing place of arbitration properly.