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  • Is There Still Room for the Application of Legal Methodology in the Era of Judicial Artificial Intelligence?
    LEI Lei
    2025(6): 1-15.
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    Judicial artificial intelligence, especially the birth of the Big Language Model and its possibility of application to judicial practice, seems to eliminate the space for legal methodology in the judicial decision.The fundamental principle of judicial artificial intelligence lies in the prediction (generation) of current data based on the statistical regularities of historical adjudication data, but the information processing of adjudication data is not equivalent to the judicial decision itself, nor is the calculation equivalent to reasoning or argumentation.From the perspective of “desirability”, as long as the nature of judicial decision-making as a kind of reason-giving activity is adhered to, legal methodology should not lose its space.From the perspective of “feasibility”, in the field of fact determination, on one hand, machine algorithms cannot properly construct the facts of the case from the evidence materials due to the limited real cognitive ability and non-response to evaluative space.On the other hand, in the field of legal application, machine algorithms cannot replace creative legal interpretation and its various methods, nor can they carry out real gap-filling and legal amendments.However, the application of corpus linguistics in legal interpretation shows that digital technology has indeed brought changes in the source of information and specific application patterns to legal methodology.In future, algorithms and methods should be mutually reinforced.
  • The Fundamental Issues of Artificial Intelligence Law: Algorithmic Discipline and the Human-Machine Relationship
    MEI Xiaying
    2025(6): 16-30.
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    The issue of the legislation on AI currently involves great theoretical controversies.Due to the incomplete transition of legislative concepts, the limited and delayed response of laws to technological advancements, as well as the requirements for novelty and systematicity in unified legislation for emerging technological fields, the timing for formulating a unified “Artificial Intelligence Law” is not yet fully mature.The legislation of artificial intelligence should be based on the new objects subject to law and the corresponding methods followed by it.Thus,“deep learning algorithm” and “human-machine” relationship can be extracted as the two theoretical fulcrums of artificial intelligence law, and the two are closely linked and evolve simultaneously.The regulation of deep learning algorithms is more important in the field of AI than before.At present, the concepts of algorithm transparency, accountability and interpretability have not been well elaborated in a self-consistent theory, and thus it still needs the effective cracking of the algorithm “black box”.The evolving nature of human-machine relationships presents legal uncertainties due to technological advancements.However, when we dispel the illusion of AI's “self-awareness,” it becomes clear that human dominance should govern these interactions.Guided by three fundamental principles-dehumanization, human primacy and safety, the legal framework could be established through mechanisms like human-machine alignment protocols, trust-building frameworks and ethical guidelines.The legislation on AI puts forward urgent requirements for new ideological resources and thinking paradigms, among which the theories such as “computer as a social actor” and “actor network” are worth paying attention to for our reference.
  • The Behavioral Subject Theory Approach to Liability Attribution for AI-Related Crimes
    WU Yisen
    2025(6): 31-44.
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    With the advent of the artificial intelligence (AI) era, criminal law is urgently required to establish rules for liability attribution in AI-related crimes.Both the criminal liability subject theory and the criminal tool theory are inherently limited, thus necessitating a bridging theory that balances future technological development and current attribution needs.Through the deconstruction of the criminal subject concept, AI systems without criminal responsibility capacity can still qualify as behavioral subjects, creating a bridging behavioral subject theory beyond the two traditional theories.The concept of behavioral subject in China's criminal law system is expandable, and the subject in an act is not necessarily limited to natural persons.Under the social behavior theory, AI behaviors that possess behavioral self-awareness qualify as acts within the meaning of criminal law, thus validating AI's status as a behavioral subject.When AI participates in crimes, liability attribution shall be conducted in accordance with the framework of crime participation.This theory provides a multi-subject foundation for liability attribution.For AI behaviors, the subject behind AI shall bear vicarious liability, and the behavioral subject theory facilitates accurate determination of each subject's responsibility.
  • On the Substantialization of Administrative Reconsideration Hearings
    JIANG Guohua
    2025(6): 45-58.
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    “Effectiveness” constitutes the core competitiveness of institutional design.Resolving disputes through direct confrontation is fundamental to enhancing the effectiveness of administrative reconsideration and intrinsically necessary for the substantive resolution of administrative disputes.In this regard, substantializing reconsideration hearings is key to enhancing administrative reconsideration's substantive dispute resolution capacity and establishing it as the primary dispute resolution mechanism.From the perspective of jurisprudence, the substantialization of reconsideration hearings is underpinned by three core elements: the Anwesenheit (procedural presence) of the process, the Dasein (functional immediacy) of the procedure, and the exclusivity of records.Anwesenheit means that reconsideration adjudicators and involved parties participate personally in the entire hearing process, prohibiting both absence and ex parte communications; Dasein requires that fact-finding, evidence evaluation, reasoning and issue resolution occur during the hearing process; the exclusivity of case records means that administrative reconsideration decisions be based solely on hearing-recorded facts and evidence, while un-presented facts cannot be used.
  • A Constitutional Examination of the Crime of Abuse
    LIU Zhixin
    2025(6): 59-72.
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    Legislators, emphasizing the necessity of criminal law intervening in families to prevent abuse, have specifically established the crime of abuse targeting “family members”.However, this approach inevitably overlooks abuse outside the family.The Mu Linhan case reveals loopholes in the protection by the crime of abuse.In judicial practice, the scope of “family members” has been expanded to protect women abused outside the family, which nonetheless violates the principle of legality.Beneath this issue lies the problem of legislative unconstitutionality, manifested in two aspects: insufficient protection and unequal protection.Both “protecting the family” and “protecting women” are state obligations stipulated in the Constitution.They are often mistakenly perceived as conflicting, but in essence, they constitute a concurrence of fundamental rights.Therefore, in accordance with the Constitution, criminal law should establish a progressive structure to cover both intra-family and extra-family abuse.
  • Evaluative Legal Methodology of Anti-Unfair Competition Law
    XIE Xiaoyao
    2025(6): 73-88.
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    For a long time, conceptual jurisprudence has dominated the drafting, adjudication and academic study of the Anti-Unfair Competition Law.A shift in legal methodology is therefore needed toward an evaluative jurisprudence that is oriented by the purpose of each norm and grounded in substantive value judgments.The Anti-Unfair Competition Law is a branch of the Law of Tort.The inherent logic of market competition makes it, in its normative character, an evaluative regime.This is evident in several respects: the objective clause and the general clause of the law play a central role in application; most of its concepts are “typological”; and the law depends on evaluative application through analogy.Evaluative regime entails that without evaluation there can be no application of the law; the meaning of the law is realized only through evaluation.Evaluation is a dialogic procedural process: without deliberation there is no evaluation, and the falsification of negative evaluations is of decisive importance.The Anti-Unfair Competition Law should introduce a plurality of evaluative factors, uncover and articulate the meaning of the law through holistic evaluation, and on that basis strike a balance among competing interests.
  • Allocation of Liability in Transfer of Shares with Uncalled Capital Contributions
    ZHU Hu
    2025(6): 89-104.
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    In the transfer of shares with uncalled capital contributions, the obligation to contribute capital transfers automatically to the transferee with the shares.Given capital maintenance and the mandatory nature of organizational law regarding capital contribution obligations, the transferor is not absolved of liability by transferring the shares, which is the approach more justified than requiring company consent for share transfers.The rationale of risk control establishes the legitimacy and institutional benefits of imposing liability on transferors.This rationale also dictates that such liability should be supplementary rather than joint and several.This framework reconciles capital maintenance with freedom of share transfer.Neither the transferor's bad faith nor the reliance of company creditors constitutes the basis for supplementary liability.These factors are immaterial in application.The transferor's supplementary liability implies that the transferor enjoys a defense of prior execution against the transferee, the specific issues of which may be resolved by reference to the rules governing the defenses available to a general guarantor.The transferor also has the right of recourse.In cases of multiple successive transfers, all prior transferors bear supplementary liability in reverse chronological order based on the same rationale of risk control.
       
  • Systematic Explanation and Application of Rules on Legal Consequences of Invalidity of Guarantee Contracts:Focusing on the Provisions of Article 17 of the Interpretation of the Guarantee System
    LIU Mujin
    2025(6): 105-117.
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    According to the relevant provisions of the Civil Code, Article 17 of the Interpretation of the Guarantee System sets forth an innovative and comprehensive provision on the conditions of the guarantor's responsibility, the nature and scope of the responsibility under the circumstances of the subordinate invalidity of the guarantee contract, and the invalidity of the guarantee contract itself.However, there remain many doubtful issues to be discussed and clarified.Supplementary liability of the guarantor at fault has the homogeneity with the first execution of the right of defense so that the provisions of the latter can apply to the former; it should be permissible to appropriately exceed the upper limit of the guarantor's liability proportion when its degree of fault is significantly greater than that of the creditor, whereas in the case of a limited guarantee, the guarantor's liability proportion should be correspondingly reduced.If both the main contract and the guarantee contract are invalid, the rule of subordinate invalidity of the guarantee contract should be applied; where several guarantee contracts in a joint guarantee are invalid, the proportions of the guarantors' compensation liabilities shall not be cumulatively added, and, within an overall limitation, individual variations are permissible, while the form of liability among the guarantors remains unchanged.The application of rules on legal consequences of invalidity of guarantee contracts are subject to special cases in independent guarantees, guarantees of listed companies, guarantee contracts of an integral nature, and counter-guarantees and re-guarantees; may be applicable, applicable by reference, or inapplicable in an atypical guarantee contract; and, may be applicable by reference or inapplicable if there is an effectiveness defect other than invalidity in the main contract or the guarantee contract.
  • Judicial Determination of Types of Implicated Relationships—Based on Typification Analysis of Judicial Documents
    WANG Yanqiang
    2025(6): 118-132.
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    The typification analysis of judicial documents about implicated offense is aimed at discovering the types of implicated relationships in judicial practice.Implicated offense involved multiple charges and a wide range.The phenomenon of confusion between implicated offense and other forms of crime's number (especially imaginative competition)was relatively common.Judicial interpretation remained an important measure to quell disputes over implicated offense.The type of “means-purpose relationships” accounted for the overwhelming majority, while the type of “cause-result relationships” was rare, which might be due to the misreading of traditional classification.In terms of specific types, there are not only traditional “type of pure implicated relationship”, but also “type of mixed implicated relationship”, and even “type of impure implicated relationship”.The existence of different types of implicated relationships indicated that implicated offense has evolved into an Miscellaneous Provisions, which is a unique feature of implicated offense in the perspective of China's criminal law.
  • Faith Acquisition of Special Movables:Logical Inconsistency under Formalism and Reconstruction under Consensualism
    PAN Chongyang
    2025(6): 133-147.
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    The general theory and judicial practice regard delivery as the effective publicity requirement for the bona fide acquisition of special movables.However, the publicity requirement excludes the simultaneous use of registration as a condition for bona fide acquisition, which in turn contradicts the purpose of registration confrontation.From the standpoint of delivery effectiveness, the method of representing property rights for special movables should be possession, with registration only affecting the transferee's behavior at the level of empirical facts.This, however, also sparks a debate on the legitimacy of choosing the method of property rights representation.For ships, the doctrine of intent is more adaptable to the timing arrangements for the transfer of ownership in standard contracts and bill of sale in ship trading practices.For aircraft, in addition to adapting to trading practices, international conventions also provide legitimacy for the doctrine of intent.Understanding the registration opposition under the doctrine of intent can be based on the doctrine of credibility, viewing it as a specific application of the credibility of registration, uniformly supported by the principle of reliance.
  • Research on the Protection of Units' Legal Benefits in Criminal Proceedings
    LIU Peiquan
    2025(6): 148-161.
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    Since Chinese Criminal Procedure Law lacks provisions governing litigation procedures for unit crimes, and Article 346 of the Interpretation of the Criminal Procedure Law—which permits units to “reference application” of criminal procedure clauses designed for natural persons—remains ambiguous in scope and boundaries, the protection of legitimate rights and interests of units in criminal proceedings is entirely dependent on those of natural persons.To clarify the legal status of units as subjects in criminal proceedings and maintain the balance between prosecution and defense in unit crime litigation, the Theory of Indirect Liability of Units should serve as the basis for constructing procedural rules for unit crimes.Building on this foundation, it is essential to explore the specificity of the unit defendant in safeguarding rights of units in criminal proceedings compared to natural persons.In accordance with these specificities, efforts must focus on defining evidentiary criteria for proving that units will incentivize criminal acts, developing interrogation methods tailored to units, reforming the system of Units' Representatives in Litigation, and enhancing the system of Units' Right to Defense.
  • The Path of Accountability for Negligent Supervision-based Dereliction of Duty Crimes
    CUI Han
    2025(6): 162-175.
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    The close link between the dereliction of duty by state officials and major safety accidents reveals its significant value in theoretical research.When analyzing the causal relationship between acts of malfeasance and resulting harm, traditional doctrines exhibit limitations, often failing to transcend the attributional level of the causal process.The stance of moderated outcome attribution and remote cause accountability fully acknowledges the particularities of malfeasance, yet it has not provided convincing answers as to why the standards of attribution need to be lowered and to what extent they should be reduced.The failure of public officials to fulfill their supervisory duties should be interpreted as an act of contributory negligence, with its illegality being subordinate to the illegal activities of the supervised party.When the derelict behavior of public officials objectively plays a role in promoting or inducing illegal activities, the illegality of the outcome can be affirmed, thereby achieving a moderated attribution of outcomes and remote cause accountability.The crime of supervisory malfeasance exhibits independence at the level of illegal conduct, and the focus of illegality judgment should shift from the outcome to the act itself, necessitating the use of key elements such as the possibility of foresight to accurately define the scope of the duty of care.In light of the social roles and performance logic of state officials in the supervision and management of work safety, the specific scenarios of the duty of care can be categorized into three types: conducting special rectification activities, routine risk inspection, and responding to public reports.In each scenario, the content of the duty of care and the standards for determining its violation differ.
  • Comments on Article 1194 of the Civil Code (General Rule on Network Infringement)
    LI Yiyi
    2025(6): 176-190.
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    Article 1194 of the Civil Code is a general provision on network infringement.The first sentence of this article is an incomplete primary norm, which needs to be applied in conjunction with other articles, especially Articles 1165 and 1167 of the Civil Code.The second sentence of this article is a reference norm, and the specific law it refers to constitutes a special law in conjunction with the general law in the first sentence.The first sentence of this article, together with Article 1165, forms the basis for the right to claim network infringement damages, with six essential elements: network users or network service providers, infringement committed through the use of the network, infringement of others' civil rights and interests, fault, damage, and causation; the first sentence of this article, together with Article 1167, forms the basis for the preventive right to claim compensation for network infringement, without requiring the existence of fault or damage.In terms of legal consequences, the infringed party may claim compensation for losses such as property infringement, personal infringement, and intellectual property infringement; for infringement of personality rights, the infringed party may also request the elimination of effects, restoration of reputation, and an apology; if the infringement continues, the infringed party may also claim cessation of infringement, removal of obstacles, and elimination of danger.