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  • To Construct the Rigid Constraint and Positive Incentive of Fair Competition Review under the Background of National Unified Big Market
    WANG Xianlin
    2025(3): 1-13.
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    The construction of a national unified market must take fair competition as a necessary condition and important content.The establishment and implementation of a fair competition review system is an indispensable policy tool and basic system supply for the construction of a national unified large market.Since the establishment and implementation of the fair competition review system in China more than eight years ago, it has played a very positive role in promoting fair competition in the market, optimizing the business environment, and building a unified national market, but it also faces many difficulties and challenges in the implementation.Under the background of building a national unified large market, China's fair competition review system needs to be constantly improved.At present, it is necessary to further strengthen its rigid constraint mechanism, but also to establish and improve its positive incentive mechanism and make the two mechanisms coordinate and cooperate with each other, so as to effectively prevent improper market intervention behavior, safeguard and promote the construction of a national unified large market.
  • The Mediatization Attribute of‘Griefbots’and Its Relational Regulation
    CHEN Xiyi
    2025(3): 14-27.
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    The ‘griefbots’ technology impacts on the secular legal norms, and raises unique dilemmas in the mourning order and regulatory challenges.The existing studies have proposed three regulatory options: confirming the attribution of ‘digital remains’, introducing the system of pre-mortem autonomy, and pre-limiting the use of technology.These three options objectify the technology and ignore its construction of social order.They have an individualism tendency and pay insufficient attention to the interaction between the living and the deceased, and among the living.The ‘griefbots’ technology has the mediatization attribute which transcends the subject-object dichotomy.The justification of this technology is not based on the continuation of personality interests of the deceased or the satisfaction of affective interests of the living, but rather on the spiritual interests of “maintaining connection”, the unit of which is relationships rather than individuals.On the basis of this technical orientation and justification,‘maintaining connection’ should be regarded as the technical regulatory principle.There should be a distinction among the system arrangements of ‘private mourning’,‘collective mourning in shared space’, and ‘public mourning after the public communication of personal mourning’, and should be a shift from pre-mortem individual autonomy system to multi-party consultations.
  • Digital Private Power and Legal Regulation on Self-preference by Platform
    HUANG Shaokun
    2025(3): 28-39.
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    To ensure the innovative development of the digital economy and enhance the international competitiveness of platforms, the application of anti-monopoly laws to regulate self-preferencing by platforms should be exercised with caution.Self-preferencing by platforms is the product of platform organization and internal power structuring, and essentially represents the improper exercise of digital private power.As an external regulatory tool for platforms, anti-monopoly law has deficiencies in terms of application premises, conditions, and effects when dealing with self-preferencing by platforms.Self-preferencing by platforms violates the obligation of platform neutrality and falls under the category of presumed fault liability, with its illegality requiring individual case judgments based on the principle of proportionality.In making specific judgments, it should be differentiated into resource allocation type self-preferencing and order maintenance type self-preferencing, which leads to different judgment standards.Starting from the essence of the abuse of private power in self-preferencing by platforms, comprehensive regulation can be achieved through the coordination of systems such as procedural settings, granting of merchant rights, democratization of internal platform decision-making, strengthening of platform's main responsibility, and infringement liability and administrative penalties at the pre-event, in-event, and post-event stages.
  • The Logical Transformation and Institutional Response to Criminal Investigation Procedures in the Digital Age
    PEI Wei
    2025(3): 40-55.
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    The digital transformation of crime and crime governance is profoundly altering the intrinsic logic of criminal investigation procedures.The concept of “suspect” is being reconstructed, the scope of investigation targets is quantitatively expanding, the extraterritorial nature of investigative actions is continuously strengthening, and investigative powers are being increasingly diluted with the deep involvement of private entities.Against the backdrop of the state's initiation of a new round of amendments to the Criminal Procedure Law, adopting a codified approach to legislative amendments necessitates systematic adjustments to investigative procedures to align with the evolving logic of digital investigations.Consequently, the adjustment of the investigation system should follow the general path of returning from a technology-oriented to a rights-oriented approach, adopting a penetrating full-process control perspective, and addressing the globalization of crime governance through the introduction of international legal principles.
  • Doctrinal Analysis of the Exemption Clauses for the Crime of False Issuance of VAT Special Invoices
    CHEN Xingliang
    2025(3): 56-72.
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    Article 10 Clause 2 of the Interpretation by the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Tax Evasion establishes exemption clauses, excluding from the scope of the crime of false issuance of VAT special invoices those acts that are not committed with the purpose of defrauding state taxes and do not result in actual tax losses to the state.This provision restricts the constitutive elements of the crime from both the purpose and result dimensions.Purpose Restriction: The exemption clause characterizes the crime as a non-statutory purpose crime by requiring the subjective element of “intent to defraud state taxes.” This represents a substantive reasoning approach that incorporates purposive analysis into the constitutive elements of the crime.Result Restriction: The clause mandates that the crime must result in actual tax losses caused by the use of the falsely issued invoices for tax deductions.Consequently, transactions involving “false issuance with actual goods”(e.g., substitute invoicing in bona fide commercial contexts)that do not lead to tax losses are excluded from criminal liability.The establishment of these exemption clauses holds significant practical importance for correctly adjudicating cases of false VAT invoice issuance in judicial practice.
  • The Distinction between the Crime of Falsely Issuing Special VAT Invoices and the Crime of Tax Evasion:Focusing on the Judicial Identification of“False Input Tax”
    MA Chunxiao
    2025(3): 73-86.
    Abstract ( ) Download PDF ( )   Knowledge map   Save
    After the “Interpretation on Tax-related Criminal Offenses” stipulated that “falsely offsetting input tax” is a “deceptive or concealing means” of tax evasion, the Supreme People's Court and the Supreme People's Procuratorate have had significant differences in judicial application, respectively proposing application standards based on subjective and objective approaches.This divergence stems from different understandings of the relationship between the crime of falsely issuing special VAT invoices and the crime of tax evasion.Tax evasion is an omission crime of evading the obligation to pay taxes, while the crime of falsely issuing special VAT invoices, as a special fraud crime, includes the substantive preparatory offense of “deceiving” to offset national tax and the substantive offense.However, tax evasion committed by deceptive means also has a fraudulent nature, and thus, it is impossible to precisely demarcate the boundaries between the two crimes.Based on the fundamental principles of tax crimes, the true dividing line lies in the fundamental differences in the nature of obtaining special VAT invoices and the substantive loss of national tax.Cases of “falsely offsetting input tax”,“falsely offsetting” and “deceiving to offset” have different act unlawfulness and result unlawfulness, and should respectively constitute the crime of tax evasion and the crime of falsely issuing special VAT invoices.Regarding the issue of proportionality between crime and punishment for the two crimes, it can be effectively addressed by distinguishing the statutory penalty ranges of the basic offense and the aggravated offense of the crime of falsely issuing special VAT invoices.
  • Emotional Justification of Legal Punishment
    TANG Fenghe
    2025(3): 87-100.
    Abstract ( ) Download PDF ( )   Knowledge map   Save
    The problem of justification has always been the basic problem of punishment.Retributivism, utilitarianism, and compoundism all fail to justify punishment.Emotion-based justification of punishment is a viable option.The emotional justification of punishment includes general justification and distribution justification.The general justification is that anger contains crime and punishment structurally.Because anger is reasonable and rational as a common sense, the punishment contained in anger is also legitimate, and thus it is justified.The distribution justification consists of two dimensions: punishment object and punishment amount.As for the object of punishment, since the object of anger is directed at specific individuals or entities responsible for wrongdoing, punishment must be strictly targeted at those responsible for the crime and must not harm the innocent.As for the amount of punishment, out of control anger and punishment is not acceptable, moderate anger and punishment, although acceptable, but not the best option, anger based on love is an ideal emotional regime for society.Such a transition anger will lead to a different view of punishment from retributionism and utilitarianism.This view of punishment aims at salvation and prevention, so the severity of punishment does not need to be symmetrical to the crime but should be adapted to the purpose of treating and saving criminal.The emotional justification of punishment is a new attempt about the justification of punishment in the philosophy of law, and it is also of enlightening significance to the discussion of punishment in criminal law.
  • On the Identification of Claim-Based Norms
    WANG Wensheng
    2025(3): 101-116.
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    The identification of claim-based norms is of great significance for the analysis of cases and the writing of documents, the proof of facts in cases and the distribution of the burden of proof, the development of civil law doctrine and the improvement of legislation.Its significance is not limited to a particular method of case analysis or genre of case analysis report writing.In civil adjudication, a distinction should be made between claim-based norms and non-claim-based norms, as well as between semi-claim-based norms and special claim-based norms.There are some typical expressions of claim-based norms in the Civil Code, but it is incorrect to judge whether a provision is a claim-based norm only by whether it adopts a typical syntax, which can only be used as an important clue for searching and a preliminary basis for argumentation.What can be judged by the syntax is mainly ‘claim according to law’ or ‘assume according to law’ or ‘according to law’, etc., and the provisions adopting such syntax are not claim-based norms.In addition to the syntax of the provisions, in the identification of claim-based norms, it is necessary to pay attention to the connection between the provisions, and it is necessary to explore the value judgement conclusion of the legislatwre in the process of the legislative history, and it is incorrect to take the purpose of the norms as the core reason for judgement regardless of the legislative history.
  • On the Scope of Adjustment of the Legislation Law:Distribution Structure and Logical Principles
    ZHAO Yidan
    2025(3): 117-129.
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    After the Legislation Law has been revised twice, there is a sharp contrast between the continuous entry of new types of norms and the unchanged Article 2, which defines the scope of adjustment.This contrast raises the question of how to understand the distribution of different norms within the Legislation Law, a question closely related to how the Legislation Law ‘regulates legislative activities’.The supplementary provisions of the Legislation Law delineate both the boundaries of its broad scope of adjustment and the boundary between the supplementary provisions and the main text.Under the circumstance of the system of socialist rule of law with Chinese characteristics being written into the Legislation Law, the concept of ‘law’ within the Legislation Law should be reinterpreted from the perspective of the sources of validity, thereby redefining the boundary between the supplementary provisions and the main text.There is a corresponding relationship named ‘institutional experiments’ and ‘institutional models’ between the norms adjusted only by the main text of the Legislation Law and the norms adjusted in Article 2.Within Article 2 itself, a hierarchical structure of institutional models has been formed.In the long run, the optimization of the adjustment structure of the Legislation Law should aim to achieving a centralized and unified regulation of various legislative activities.
  • On System and Application of Rules of Restitution of Invalid Contract
    WANG Hongliang
    2025(3): 130-145.
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    Article 157 of China's Civil Code regulates not only the restitution rule, but also the indemnification rule, compensation rule, comparative negligence rule, etc, when a legal transaction is invalid or revoked.Article 24 and 25 of Judicial Interpretation of General Rules of Contracts of China's Civil Code make a more elaborate explanation of article 157 of China's Civil Code.Firstly, the restitution rules should be separated outrightly from compensation rules, and rules concerning restitution of contract can be stipulated into one rule since its independent existence has justifications.Secondly, restitution of property acquired by the invalid or revoked legal act can be differentiated into three claims, including restitution of the enrichment, restitution of subrogation properties and restitution of uses.The object of restitution is the specific object received by the debtor of enrichment through payment or other means; in the restitution of subrogation properties, in principle, the value of subrogation properties is not taken into account; the consideration obtained by the debtor of enrichment by selling the object of enrichment is not subrogation property, and is not required to be returned.In principle, the debtor of enrichment has the obligation to return only the uses actually received.Lastly, in case of impossibility or unnecessity of restitution, debtor should make indemnification.The criterion for the valuation of indemnification is mainly the objective value of uses received by debtor of enrichment.When the restitution's impossibility is due to the nature of performance, the time of enrichment and the arising of the earliest claim of indemnification is the time for the valuing of indemnification.As to a subsequent impossibility restitution, the time of valuation is the time of impossibility or the arising of indemnification due to the impossibility.Other reasonable valuating methods are also allowed according to the second half sentence of paragraph 1 of article 24 of Judicial Interpretation of General Rules of Contracts of China's Civil Code.
  • On the Error of Cognition in the Crime of Fraud:Meaning,Determination,and Specific Limitations
    FU Liqing
    2025(3): 146-159.
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    The element of error of cognition in the crime of fraud not only confirms the causal relationship between deceptive acts and the victim's property disposition but also serves to limit the scope of establishment of the crime.Error of cognition is not merely ignorance of facts; rather, it refers to a discrepancy between subjective perception and objective reality, arising from deception by others and directed toward property transfer (and thus property damage), occurring in individuals capable of proper cognition.Even when the property disposer harbors doubts, an error of cognition can still be affirmed.Indifference to fraudulent claims does not constitute an exception.When there is a divergence in cognition between the property disposer and the bearer of property damage, the critical issue is whether the disposer themselves developed an error of cognition.In cases where an assistant, due to specialized knowledge or obligations to provide professional support to the victim, possesses expertise, such professional cognition should be attributed to the victim.The error of cognition sufficient to invalidate the intent to dispose in the crime of fraud is neither a mere error in motive nor strictly limited to errors related to the legal interests protected by the crime.Instead, it signifies that the property disposer has lost free will in making the disposition.Whether free will is lost should be determined through objective judgment.
  • The Establishment and Improvement of Treaty Interpretation Rules in China
    PENG Yue
    2025(3): 160-174.
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    There are numerous theoretical disputes and diverse practical approaches regarding how domestic courts interpret international treaties.The Supreme People's Court issued two judicial documents in 2015 and 2020 respectively, specifically regulating treaty interpretation rules.The former required courts to strictly interpret treaties in accordance with the Vienna Convention on the Law of Treaties, whereas the latter made no mention of the Convention.Under the current domestic application system for treaties, domestic courts lack explicit legal basis to directly apply the Vienna Convention on the Law of Treaties and its interpretation rules.To enhance the formal consistency and substantive rationality of China's treaty interpretation rules, the Court may transform Articles 31 and 32 of the Vienna Convention on the Law of Treaties—rules with the nature of customary international law—into domestic legal rules, thereby constructing a structured system of treaty interpretation rules for domestic courts.This will fulfill the original purpose of equally protecting the rights and interests of the parties, enhancing the international credibility of judicial decisions, and fostering a favorable business environment.
  • Comments on Article 1198 of Civil Code(Security Guarantee Obligation)
    WANG Lei
    2025(3): 175-190.
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    Article 1198 of the Civil Code of the People's Republic of China requires operators of business premises, managers of public places, and organizers of mass activities to actively take reasonable preventive measures to avoid infringement of others' personal and property rights, which is a special provision of Article 1165(1)of the Civil Code of the People's Republic of China.Due to the fact that this provision is a special requirement proposed by legislators for specific entities to assume security obligations, the scope of entities is limited and has the characteristics of legality and closure.The obligation to prevent intentional harm by third parties depends on whether the security obligor's initiation of social activities increases the substantive risk of intentional infringement.In the judgment of security obligations, due to the complexity and diversity of the obligation content, the judgment criteria cannot be uniform, and reference factors should be extracted for judges to specifically determine in individual cases.When intervening in third-party infringement, the inaction of the security obligor only fails to prevent the third party from causing harm, and is not sufficient to cause damage independently.The construction of supplementary liability is reasonable.The applicable conditions for supplementary liability are that the failure to fulfill the obligation of security protection constitutes a minor fault and is an indirect cause of harm.The weak foundation of liability limits the priority and scope of the responsibility of the security obligor.The implementation of supplementary liability is not in the litigation stage but in the execution stage.