The Jurist

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  • The Functional Theory of Law in Xi Jinping Thought on the Rule of Law
    XIA Jinwen
    2026(5): 1-13.
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    Xi Jinping Thought on the Rule of Law has opened a new frontier in adapting the Marxist theory of the rule of law to the Chinese context and the needs of our times.The “functional theory of the rule of law,” characterized by “consolidating foundations, stabilizing expectations, and securing long-term interests,” is an original proposition within this Thought.It possesses deep historical roots and strong practical vitality, profoundly revealing the functional orientation of the rule of law in state governance.Specifically,“consolidating foundations” means fortifying the institutional bedrock for the development of the cause of the Party and the State through the rule of law;“stabilizing expectations” means fostering a stable and predictable social order through the rule of law; and “securing long-term interests” means achieving the great rejuvenation of the Chinese nation through the rule of law.These three aspects are interdependent and work synergistically, forming a comprehensive and systematic functional system of the rule of law.This functional theory is not only an innovative development of the Marxist theory of the rule of law, but also a compelling articulation of the path of socialist rule of law with Chinese characteristics, and an important hallmark in constructing China's independent system of legal knowledge.It bears great practical significance and far-reaching historical significance for guiding the advancement of law-based governance in all respects and for building a socialist country under the rule of law.
  • Institutional and Jurisprudential Research on Disposition of Relevant Relationships in Litigations with Identical Causes but Different Categories
    ZHANG Weiping
    2026(5): 14-25.
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    Due to the same reasons, different types of lawsuits are inherently linked to each other.This connection requires attention to the institutional arrangements of this relationship.The current system has also made institutional responses to the handling of this relationship.The same cause for different type lawsuits mainly occur in the two civil litigation fields of public interest lawsuits and private interest lawsuits, as well as representative lawsuits and individual non-representative lawsuits.These two types of same cause for different type lawsuits have related institutional relationships.
    The arrangements vary slightly due to the different types of lawsuits.In the case of public interest litigation, the application of private interest litigation to the effective judgments of public interest litigation is characterized by a fact-proof discount.This discount for evidence is not an expansion of the validity of the public interest litigation judgment, but rather the proof benefit of the effective judgment as a proof document.In the case of representative litigation, it is manifested as the application of individual non-representative litigation to the effective judgments of representative litigation.Due to the characteristics of public interest litigation and representative litigation, in the application of effective judgments, generally, private interest litigation is applied to the effective judgments of public interest litigation, and non-representative litigation is applied to the effective judgments of the representative.The converse does not necessarily hold.After non-representative litigation applies the effective judgments of representative litigation, the litigation should be terminated in the form of a judgment.This judgment is the basis for the rights holder to apply for enforcement and when the same type of litigation and different types of litigation are carried out concurrently, whether private interest litigation and non-representative litigation should be suspended can be decided by the court based on specific circumstances.Based on the necessity of having a discretionary decision for litigation suspension, the Civil Procedure Law can adjust the relevant provisions on litigation suspension and add provisions for the court's discretionary suspension.
  • Re-discovering the“Quantity Elements of Crime”: The Position of the Quantity Elements of Crime in the Criminal Law System
    TANG Zhiwei
    2026(5): 26-41.
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    The concept of the “quantity elements of crime” is a distinctive feature of Chinese criminal law.However, transplanting foreign theoretical constructs to address this issue presents methodological challenges in comparative law.The prevailing academic view treats the quantity elements of crime as a constituent element of wrongfulness.This not only undermines the functions of conduct orientation, general prevention and indication of unlawfulness that the elements of wrongfulness are supposed to fulfil, but also poses challenges to constitutional and systemic interpretations of criminal law.In the context of a substantive concept of crime, the quantity elements of crime, as set out in specific provisions corresponding to the proviso in Article 13 of the Chinese Criminal Law, constitute a collective concept of elements that restrict criminal punishment within a broad sense of the constituent elements.This involves considerations of “purposefulness of punishment”.In a staged criminal law system, the stage of the quantity elements of crime (purposefulness of punishment) should follow the stages of wrongfulness and culpability, which justify punishment.This systematic placement does not contradict the standard for attributing criminal liability established by the principle of culpability.It also helps clarify doctrinal controversies concerning issues such as attempt and complicity.
  • Legal Construction and Application Boundaries of the Provision on Deceptive Trademarks in the Trademark Law
    KONG Xiangjun
    2026(5): 42-59.
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    As a core revision of the 2026 Trademark Law, the provision on deceptive trademarks has been equipped with supporting penalty rules for the special rectification targeting “calculated trademarks”.Widely applied amid the crackdown, this prohibition clause risks overexpansion and abuse as its applicable scope broadens, while standards loosen.Given the severe legal consequences of prohibited trademarks and newly added punitive mechanisms, it is vital to clarify its legal positioning, define applicable criteria and constrain its application scope.Targeting consumer protection, this clause focuses on inherent deception concerning goods or service features, adopts the standard of substantial likelihood of misrecognition, prioritizes factual judgment with auxiliary value judgment, and requires appropriate restraint to respect market entities' legitimate freedom of commercial expression and trademark proprietary interests and refrain from undue interference with private rights in the name of public order.The identification of deceptive trademarks shall be based on specific usage scenarios, coordinate holistic and partial assessment of trademark components, differentiate judgments in trademark registration approval and invalidation procedures as well as between used and unused trademarks, respect market realities, distinguish deceptive trademarks from non-distinctive trademarks, and stop unrestricted expansion of its regulatory scope.
  • The Paradigm Shift of the Well-Known Trademark System
    WAN Yong
    2026(5): 60-71.
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    The 2026 Amendment to the Trademark Law introduces systematic revisions to the well-known trademark regime, marking a paradigmatic turning point in the development of Chinese well-known trademark regime.It provides a normative foundation for addressing long-standing issues such as institutional alienation, adjudicative imbalance and insufficient cross-border protection.On the basis of continuing the previous reform direction, this revision has achieved a paradigm shift from honorary titles to marking symbols, from registration-based to goodwill-based, and from territorialism to exceptions to territorialism in the ontology dimension, value dimension and spatial dimension, respectively.Paradigm shift is a long-term systematic project.Currently, the protection of well-known trademarks is still in the stage of adaptation and deepening of paradigm shift, and there are still some unfinished businesses that need to be further completed in the future.
  • The Functional Positioning and Paradigm Shift of Artificial Intelligence Legislation in China
    SHEN Weixing
    2026(5): 72-88.
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    Artificial intelligence legislation in China involves four major controversies: whether, when, in what form to legislate, and how to balance security and development.This article argues for the prompt adoption of comprehensive AI legislation.Existing fragmented regulation and concerns about systemic coherence do not negate its necessity; theories of legal infrastructure and second-order decision-making further demonstrate its institutional value.As no ideal legislative moment exists, China should follow an approach of “legislate first, improve later” to address the Collingridge dilemma.AI legislation should also shape technological development toward human-centered and socially beneficial ends.With the rise of AI agents, the conventional risk-regulation paradigm has become insufficient.Legislation should therefore extend from risk control to relationship construction by establishing basic rules for human-agent, agent-agent, and composite relationships, thereby developing an AI legal framework suited to China's circumstances.
  • Judgment Quality Control via“Review and Verification”: An Empirical Investigation Based on Courts in H Province
    DING Lianghua
    2026(5): 89-104.
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    As a significant institutional innovation during the deepening phase of the judicial responsibility system reform, the Review and Verification System is designed to reconstruct the dynamic equilibrium between “decentralization” and “supervision.” An empirical investigation based on comprehensive data from courts at all three levels in H Province for the year 2024 reveals that the review and verification process exhibits a pronounced feature of “structured hierarchical supervision,” with its intensity of application varying according to court level, adjudicative domain, personnel characteristics, and case tags.The results of Propensity Score Matching (PSM) and Difference-in-Differences (DID) analyses show that the review and verification mechanism exerts a significant “treatment effect” on the quality and efficiency of adjudication, with the appeal rate, rate of reversal and remand, and retrial petition rate of reviewed cases being lower than those of the matched control group.However, questionnaire survey results uncover a notable gap between objective effectiveness and subjective perception, giving rise to an “efficacy perception paradox.” At present, the Review and Verification System has evolved from the traditional model of “administrative approval” toward a new paradigm of “procedural governance.” Its future development should achieve a systemic transformation from “regulatory control” to “quality enablement” through statutory guidance via power-and-responsibility lists, dynamic optimization of case classification, deep integration of artificial intelligence, and systemic restructuring of assessment incentives.
  • Rethinking the Typological Interpretation of Abstract Potential Damage Offenses from the Perspective of the Collective Concept
    WANG Jun
    2026(5): 105-119.
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    The traditional view that regards the abstract potential damage offense as a unitary collective concept is flawed.It is necessary to clarify the conceptual boundaries between the traditional abstract potential damage offense and three related categories: the quasi-abstract potential damage offense, the cumulative offense, and the substantial preparatory offense.The quasi-abstract potential damage offense shall be strictly confined to crimes with explicitly prescribed danger elements in statutory provisions, and its scope shall not be unduly expanded; the concept of the cumulative offense carries no doctrinal interpretative value; and the substantial preparatory offense has no justification to be established as an independent offense category.Among prevailing academic perspectives, treating abstract danger as an unwritten constitutive element would blur the demarcation between the abstract potential damage offense and the concrete potential damage offence.Applying a restrictive interpretation to danger elements clearly violates the provisions of judicial interpretations, while adopting the standard of breach of duty of care constitutes an improper transplantation of the doctrines of negligent offenses.The abstract potential damage offense shall be divided into two sub-types: those protecting concrete legal interests and those protecting abstract legal interests.For the former sub-type, the ex ante danger judgment method can be adopted to negate the legal interest-infringing danger of the conduct at the empirical level; for the latter sub-type, the interpretative function of institution-reliance-based legal interests shall be fully exerted.If the above approaches still fail to exclude criminal liability, the proviso provision of the Criminal Law can only be applied as an unwritten quantitative element of crime to exculpate the actor based on a holistic evaluation.
  • Systematic Design of A Parent-Subsidiary Oversight Mechanism
    CHEN Jingshan
    2026(5): 120-133.
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    Governance crises in corporate groups based on parent-subsidiary relationships have exposed the institutional limitations of traditional single-company oversight models.To systematically address the failure of parent-subsidiary oversight—particularly the issue of harm to parent company shareholders' interests—two theoretical approaches exist: the “transcending the firm” theory and the asset management theory.Among these, the asset management theory provides a theoretical foundation for the obligation of parent company directors to establish parent-subsidiary oversight mechanisms.The systematic construction of parent-subsidiary oversight mechanisms requires a three-pronged approach.First, regarding the choice of model, the foundational structure of the oversight mechanism should align with the parent company's level of control.Under the equity participation model, a “separate-type” oversight mechanism is adopted, with oversight functions in the parent and subsidiary operating independently and in parallel to safeguarding minority shareholders' right to participate in oversight; under the wholly-owned subsidiary model, an “integrated” oversight mechanism should be adopted; while the subsidiary's oversight body is retained in form, its functions are substantively integrated into the group's overall framework to achieve unified oversight standards, integrated information flow, and coordinated risk response.Second, regarding the allocation of duties, parent company directors bear a general duty of care toward the parent company; interpretively, this can be extended to include a duty to establish and maintain the parent-subsidiary oversight mechanism.To eliminate information asymmetry in parent-subsidiary supervision, parent company directors must also establish compliance investigation mechanisms and internal whistleblowing mechanisms.Furthermore, in cases where the duty to supervise and manage the subsidiary is not fully fulfilled, parent company directors should bear liability for breach of fiduciary duty toward the parent company, thereby indirectly compensating the parent company's shareholders for their losses.The scope of such liability is limited by the fact that parent company directors may raise defenses based on the business judgment rule or the doctrine of reasonable reliance.
  • A Corporate Organizational Law Deconstruction of Investors' Redemption Rights in Valuation Adjustment Mechanism Transactions
    YE Dongying
    2026(5): 134-149.
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    Disputes over valuation adjustment mechanism agreements have long been caught in the dilemma of being “valid as contracts but difficult to enforce.” The root cause lies in the insufficient clarification of the coordinated relationship between contract law and company law.Although a valuation adjustment clause appears as a contractual arrangement attached to an investment agreement, where it provides that the company shall repurchase shares or equity interests from the investor upon the occurrence of specified conditions, it in substance constitutes a reverse transaction in the opposite direction to the investor's subscription for shares.It therefore cannot be assessed solely from the perspective of contract law.From the perspective of corporate organizational law, the investors' repurchase right or redemption right is not merely a creditor's claim, but a special right attached to the company's shareholding structure and the arrangement of shareholder rights.Its creation should be based on a provision in the articles of association or an equivalent resolution of the shareholders' meeting.The company's performance of the repurchase obligation will result in the return of corporate assets to a specific shareholder and may further trigger changes in the company's capital.It must therefore be subject to the capital maintenance doctrine and comply with rules on capital reduction procedures, legally available sources of funds, and creditor protection.Accordingly, the company's payment of the repurchase price should be limited to legally available funds.Where the company is unable to make payment due to insufficient funds or because the statutory restrictions on available funds are not satisfied, such non-payment does not automatically constitute a breach of contract.The investor should bear the corresponding investment risk.
  • Regulatory Dilemmas and Improvement Paths of False Arbitration under the New Arbitration Law——Based on Articles 61 and 71 of the Arbitration Law
    ZHANG Yan
    2026(5): 150-162.
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    The newly revised Arbitration Law adds provisions targeting false arbitration, furnishing statutory grounds for regulating such conduct.As stipulated in Article 61 of the Arbitration Law, false arbitration falls into two categories: unilateral fabrication of facts and malicious collusion between both parties, which requires constituent elements including qualified subjects, fabricated legal relations and subjective malice.At the arbitration hearing stage, the principle of good faith serves as the theoretical foundation for regulating false arbitration.Nevertheless, false arbitration arising from bilateral malicious collusion is plagued by difficulties in evidence production.Furthermore, the contractual nature of arbitration dictates against introducing a mandatory third-party intervention system.At the judicial review stage, obstacles exist when parties seek to set aside or refuse enforcement of arbitral awards generated by false arbitration under the grounds of forged evidence or violation of public interest prescribed in Article 71 of the Arbitration Law.Establishing a mechanism allowing outsiders to apply for vacatur of arbitral awards would contravene the relativity of res judicata of arbitral awards.Accordingly, false arbitration shall be designated as a statutory ground for people's courts to set aside or refuse enforcement of relevant arbitral awards.In terms of legal liabilities, the Civil Code shall be applied to clarify civil tort compensation liabilities arising from false arbitration.Meanwhile, a crime of false arbitration should be incorporated into the Criminal Law to fill the gap in criminal regulation.
  • On Contributory Negligence in Liability for Breach of Contract
    XU Yinbo
    2026(5): 163-175.
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    The Civil Code provides contributory negligence in contract law by referring to Civl Law while providing strict liability in contract and mitigation by referring to Common Law.It is necessary to interpret the rules systematically.However, most research simply copies the pionts of contributory negligence in tort law.Some cases have resulted in “ambiguity” based on judges' naive understanding of the principle of fair distribution of losses.The interpretation of contributory negligence should be based on the distinction between tort and breach of contract.Torts occur between unspecified parties and the liability is determined by law, in contrast, the liability for breach of contract occurs between specific parties and the rights, obligations, and distribution of damages under the contract can be agreed upon by the parties.Therefore, a unified standard of conduct for creditors should not be set, but rather the contributory negligence of creditors should be defined and determined based on the contract.The contributory negligence of creditors refers to their failure to perform actions that can reasonably be expected to be implemented based on the contract, mainly including breach of promise, non cooperation, and failure to take reasonable care of their own interests.The people's court or arbitration institution shall consider factors such as the nature and content of the contract, the type of creditors and their experience, the cost and benefits of preventing damage, to determine whether the creditor is at fault.As for the creditor's attributable behavior after the debtor breaching the contract, the standard for distinguishing between the application of contributory negligence and mitigation lies in whether the loss expanded by the act of creditors which break the chain of causation can be divided from the creditor's total loss.
  • The Ex Officio Initiation of the Conversion of Execution into Bankruptcy Procedure: Reflections and Review
    SHI Xiaobo
    2026(5): 176-189.
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    Many scholars and legal practitioners in China currently argue that the initiation mechanism of the “Conversion of Execution into Bankruptcy” procedure should be adjusted from the “party application-based model” and “court inquiry-based model” to a limited “ex officio model”.However, the ex officio initiation tends to overlook the procedural safeguards for party autonomy and interests of the parties involved in the process.This approach not only fails to achieve policy objectives such as resolving the practical difficulties of enforcing the rulings and clearing out “zombie enterprises”, but may also give rise to new legal procedural challenges and pose risks to the legitimate rights and interests of the parties involved.Furthermore, comparative legal studies have offered little support for such an approach.In the future, when the PRC Enterprise Bankruptcy Law is revised, the initiation of the “Conversion of Execution into Bankruptcy” procedure should continue to adhere to the “party application-based model” and the “court inquiry-based model” established by the incumbent legal structure, and adjust the specific measures from the aspects of applicant behavior incentives and supporting systems such as personal bankruptcy and mandatory corporate deregistration.