The Jurist

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  • 2025 Issue 4
    Published: 15 July 2025
      
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  • The Theory of Governing the Internet in Accordance with the Law within Xi Jinping Thought on the Rule of Law
    CHEN Baifeng
    2025(4): 1-14.
    Abstract ( ) Download PDF ( )   Knowledge map   Save
    President Xi Jinping has put forward a series of important expositions on governing the internet in accordance with the law, leading China to embark on a path that aligns with international norms while maintaining Chinese characteristics.These expositions constitute the theory of governing the internet in accordance with the law within Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era.It systematically addresses a series of theoretical and practical issues in the new era, including the great significance, basic principles, strategic layout, key tasks, and global mission of governing the internet in accordance with the law.We must adhere to governing the internet in accordance with the law as a fundamental means, establish a comprehensive cyberspace governance system, and ensure the healthy operation of the internet within the orbit of the law.Based on the practice of China's internet development, we should uphold the basic principles of Party leadership, the rule of law in cyberspace for the people, the integration of governing the internet in accordance with the law and nurturing the internet with morality, and promoting development and leading innovation.We should strengthen legislation in the internet field, improve the implementation system of the rule of law in cyberspace, consolidate the foundation of the rule of law in cyberspace, and ensure the healthy development of the internet through good laws and good governance.We should focus on key tasks such as protecting network rights and interests, regulating the digital economy, and safeguarding cybersecurity, and accelerate the process of legalizing cyberspace.All countries should jointly promote the construction of the international rule of law system in the cyber field and work together to build a community with a shared future in cyberspace on the basis of independence, complete equality, and mutual respect.The theory of governing the internet in accordance with the law within Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era is the fundamental principle and action guide for governing the internet in accordance with the law in the new era and will surely lead to a higher level of legalization in cyberspace.
  • The Significance of Legal Dogmatics for Chinese Legal Thinking
    ROLF Stürner
    2025(4): 15-28.
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    The essence of legal dogmatics lies in systematically subsuming individual cases into fundamental rules and principles based on existing law.Germany has developed a refined intermediate system positioned between case adjudication and legal rules, as well as between basic rules and fundamental principles.This sophisticated system renders “questions of justice operable”, particularly in routine case adjudication, where practical dogmatics significantly streamlines judicial work, enhances efficiency, and ensures legal certainty.Notably, this system serves both stability and innovation functions.Savigny's interpretive methodology constitutes the foundational approach for all textual sciences.Both systematic and historical interpretations are capable of accommodating fundamental legal theories.The subsequent debate between subjective and objective interpretation, emerging after Savigny's framework, reveals that objective teleological interpretation is, in essence, illusory.China's Civil Code has cultivated its own distinctive legal dogmatics and hermeneutics.Interpretation functions as the nexus between legal dogmatics and practical legal application, with legal dogmatics playing a foundational role in the interpretive process.Judicial interpretations issued by the Supreme People's Court may surpass legislation in precision and responsiveness, thereby making a more substantial contribution to the construction of a refined dogmatic system.
  • From Legal Dogmatics to Legal Hermeneutics:On the Construction of China's Autonomous Legal Hermeneutic System
    WANG Liming
    2025(4): 29-49.
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    Legal dogmatics (Rechtsdogmatik) is a distinctive theoretical paradigm in German jurisprudence, having evolved through embryonic, formative, mature, and developmental stages.Within the German legal tradition, legal dogmatics constitutes an independent discipline distinct from legal philosophy, sociology of law, and legal history, fulfilling unique functions and serving as a distinct methodological tool.While German legal dogmatics offers valuable insights for China's legal scholarship, its deep roots in Germany's historical and cultural traditions make full transplantation into the Chinese context untenable.Moreover, the term “legal dogmatics” is potentially misleading, its content inherently limited, and its methodology overly insular.To overcome these limitations, it is imperative to construct China's autonomous legal hermeneutic system.Legal hermeneutics primarily serves legislative and judicial purposes, and its systematic development must adhere to principles of autonomy, practicality, coherence, openness, and consensus.The establishment of China's legal hermeneutic system represents a critical component in building an autonomous knowledge framework for Chinese jurisprudence.
  • Legal Rules on the Construction of Data Property Rights Registration System
    BAO Xiaoli
    2025(4): 50-60.
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    Data registration is the act by which data rights holder records and disclose the data property rights status.It is a key section in the construction of the data market.Although the data content changes, the data property rights can be specifically stated, which has the ability to be registered.Most of current registration is to match supply and demand, which cannot play a role in reducing the rights identification cost and assisting circulation supervision.The construction of data property rights registration system shall instead focus on rights registration based on the substantive review, and be divided into initial registration and transferring registration.Initial registration has the effect of presumption of rights and the transferring registration exerts the effect of rights publicity and credibility.Although registration is not a requirement for the acquisition and alternation of data property rights, it should be given a countervailing effect through legislation.It can reduce the publicizing cost in exclusive transactions and the verifying cost of third parties.
  • Personal Information Protection in the Context of Generative Artificial Intelligence: Paradigm Shift and Rule Improvement
    YE Xiongbiao
    2025(4): 61-73.
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    The intellectual "emergence" of generative artificial intelligence has been stimulated by big data, but it has also intensified the challenges of privacy and personal information protection in the digital age.The integration of algorithms and big data had made the data processing of generative artificial intelligence significantly different from traditional network services.The existing fundamental theories and relevant rules of personal information protection are difficult to apply effectively within the realm of generative artificial intelligence, failing to provide reasonable protection for users' information rights along with other personal and property rights.Moreover, they are unable to effectively curb other social risks arising from illegal data processing.The personal information protection rules for the AI era need to prioritize risk prevention and control, using coercive power of the state to constrain the data processing activities of generative artificial intelligence designers, developers, and providers.Furthermore, it is necessary to improve the rules for information acquisition, usage, storage, circulation and remedies.
  • The Connotation and System of Claims in Administrative Law
    CHENG Haonan
    2025(4): 74-86.
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    The study of claim facilitates the conceptualization of the administrative law system, which is centered on administrative legal relations.Furthermore, it serves as a prerequisite for the development of the review model of claims in administrative litigation.To this end, it is necessary to clarify the connotation and system of the claim.The claim in administrative law is defined as the inherent power of public right, representing the most significant form of right in administrative legal relations.It can more clearly show “who can according to which legal norms, to whom, claim what”.This analysis provides a comprehensive overview of the administrative legal relationship.The system of claims in administrative law is comprised of two distinct categories: the substantive claim, which occupies a central position, and the procedural claim, which is in the supplementary position.The substantive claim can be further distinguished into three distinct categories on the basis of the volitional element of the right.The defensive claims arising from a negative position infringed by the State; the protective claims arising from a negative position infringed by a non-State, and the beneficial claims based on a positive position.The procedural claim can be further subdivided into procedural participation claims and flawless discretion claims, the former supports the realization of substantive claims, and the latter serves as a foundation for substantive claims.In the future, the system of claims can be used to further refine the constituent elements of each type of claim, which will feed the practice of administrative litigation, especially the litigation of performance.
  • Modalities for the Review of Claims in Administrative Proceedings
    ZHAO Hong
    2025(4): 87-104.
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    Along with the emergence of a large number of claims for payment, the right to request review mode has also begun to be applied to administrative litigation.Unlike the traditional lawfulness review mode, under the right to request review mode, there is no essential difference between administrative litigation as public law litigation and private law litigation; both deal with disputes over substantive rights between subjects under specific legal relationships.Claims review model of subjective public rights and substantive claims are the basis of substantive law, and substantive law thinking, the generalization of the right of action and the elements of the right at the same time are the conditions of prosecution and the conditions of success as the premise of its application.They not only have been applied to the payment of the lawsuit, but also useful for the revocation of the lawsuit and the confirmation of the lawsuit for the reconstruction of the re-understanding and construction of the same inspiration.However, just like the traditional legitimacy review model, the claim review model also suffers from systemic incoherence, limited application, and challenges over a priori determination of substantive law/procedural law relationships.This also shows that, although the purpose and basic structure of administrative litigation, including revocation, should maintain a certain degree of integration with the norms of substantive law, the litigation system itself is not a univocal deduction from substantive law alone.
  • For-Profit Corporation of Public Interest:Theoretical Basis,Practical Forms and Legal Adjustments
    FENG Hui
    2025(4): 105-119.
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    Defining, identifying, and legally adjusting the for-profit corporation of public interest can help resolve the controversy surrounding the classification system of legal entities in China's Civil Code.The practice of for-profit corporations of public interest in the fields such as education, healthcare and elderly care have improved the efficiency and quality of China's public interest development.However, the current legal adjustment mechanism has shortcomings such as unclear positioning, mixed basis, missing or unreasonable core rules.We should focus on balancing the commercial and public interest attributes of the for-profit corporations of public interest, construct a normative system consisting of general law and special laws, improve the registration management system by adjusting the functions of the business supervisory departments, comprehensively use private law norms and regulation, standardization, subsidies, tax incentives, financing support and other public law adjustment tools, so as to improve the rights and obligations rules of the for-profit corporations of public interest in core issues such as pricing, distribution and corporate governance.
  • Operational Guidelines for “Extracting Common Factors” in the Codification of the Eco-Environmental Code: Basic Principles and Operating Methods
    CAO Wei
    2025(4): 120-132.
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    The technique of Extracting Common Factors in legislative activities should follow the logic of legislation rather than the logic of mathematical calculations, including three steps of determining the objects to be extracted, carrying out the Extracting Common Factors, and placing the expression of the Common Factors norms and the remaining norms.The objects to be extracted from the Eco-Environmental Code include the basic system in the general provisions and the specific universal norms in the sub-legal provisions.The legislature can either use the conventional inductive extraction method or the deductive extraction method to form the common norms and then carry out norm deduction.The legislature needs to pay attention to the existing norms and the latest norms as far as possible as the basis for the expression of common sense norms, and pay attention to the transformation of policy terms and academic concepts into normative concepts.As for the remaining norms, they should be changed into independent norms, merged into the causal norms or shifted to a different location, depending on the situation.
  • Evaluating the Harmful Effects of Cyber Operations in Violation of An International Obligation
    YANG Fan
    2025(4): 133-147.
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    State-sponsored cyber operations could amount to violation of international obligations.Existed discussions and states' position papers reveal a current consensus that, to scrutinize state's cyber operation under international law requires a legal assessment of the harmful effects of the conduct in question, which, once meet certain threshold of effects, could be argued as inconsistent with relevant obligations.Based on related jurisprudence in international law and the state-of-the-art understanding of the nature of cyber operations, a legal reasoning framework of “delineation-categorization-synthesization” can be constructed to assess the harmful consequences of an accused state's cyber operation.Causality analysis can help define the appropriate range of outcomes to be considered in legal analysis.By way of typology, the physical and non-physical harms inflicted by cyber operation can be better analyzed.The proposed framework can also be adopted to revisit representative viewpoints on legal thresholds expressed in state position papers and academic discussions.In doing so, it tries to fill in the gap of current literature on cyberspace international law, to clarify or even eliminate divergencies of opposite views, and to enhance the consistency of the wording and concepts in future debate.
  • The Boundary Between Rights Protection through Media Exposure and the Crime of Extortion
    LI Hong
    2025(4): 148-161.
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    Whether media exposure for rights protection constitutes extortion cannot be generalized.If the perpetrator of the demand and their own losses directly related to the amount of the claim does not exceed the general concept of social acceptance of the scope, and limits of the exposure of the behavior can be evaluated as a strategy to defend the rights of the overall, it belongs to legitimate rights protection.However, if the act of exposure is used as a means to seek improper benefits far beyond the basis of the actor's rights and exceeds the scope and limit recognized by the general social concept, then the behavior is extortion.In judging whether the claim behavior beyond the general concept of social judgment, in addition to considering whether the perpetrator has the basis of the right, what must consider are the content of the rights defended, the way of infringement, the target audience, the attitude adopted in response to the perpetrator's claim requirements, the difficulty of the rights protection behavior, and the frequency of infringement occurrence.In situations where high-risk online media exposure is used as a means to demand compensation far exceeding the basis for the actor's rights protection, it is not a legitimate defense of rights, but rather an extortion.
  • Reflection on Shareholders' Responsibility for Capital Contribution under the Reform of Subscription System
    FU Qiong
    2025(4): 162-176.
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    The reform of limited subscription system in the new “Company Law” in 2024 seems to be only the rational return of shareholders' capital contribution period, but in fact it is the innovative reconstruction of shareholders capital contribution obligation and responsibility system.When the company is established, the sponsors' responsibility for capital enrichment is limited, which is conducive to encouraging shareholders to invest and start businesses.The introduction of the company law of the shareholder's loss of power mechanism fills the deficiency of the relief of the contract law in which the shareholder's capital contribution commitment is fulfilled.The shareholder who has lost power is liable for the company's differential loss, and the proportional capital contribution liability of other shareholders without fault should be used with caution.The innovation of company law to accelerate the maturity mechanism fills the deficiency of creditor's subrogation.As long as the company cant pay off the debts due, the creditors due have the right to sue the shareholders and get direct compensation.The revision of the company law on the allocation of liability for equity transfer has corrected the imbalance of interests of bona fide equity traders in the civil law debt assumption theory, and the responsibility of the unexpired equity transferor must be judged on a case-by-case basis by distinguishing the formation time of creditor's rights, and the transferee of defective equity transfer responsibility has the right to claim bona fide exemption defense.The direction of judicial interpretation of shareholders' capital contribution responsibility in China should better realize shareholders' limited liability, rather than weaken it.
  • On The Applicable Mechanism of Apparent Agency in Official Conduct: A Review of Article 21 of The Interpretation of the General Provisions of the Contract of Civil Code
    LI Yachao
    2025(4): 177-189.
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    Based on Article 170, Paragraph 2 of the Civil Code, Article 21, Paragraph 1 of the Interpretation of the General Provisions of the Contract Code clearly stipulates that the act of exceeding authority by the staff of legal persons and unincorporated organizations can be subject to apparent agency.Article 21, paragraph 2, provides for a number of circumstances beyond the scope of its competence, including matters that do not normally fall under its competence.On the contrary, for matters that would normally be dealt with under his or her authority, even if the staff member exceeded his or her authority, the apparent agency rule would almost necessarily apply because of the appearance of the authority and the heavier burden of proof of the principal in article 21, paragraph 3.In practice, for apparent agency beyond the scope of authority, we should effectively distinguish the appearance of authority and the appearance of agency power.On the one hand, it is necessary to examine whether the counterpart's trust is reasonable by combining the appearance of agency power and abnormal transaction factors.On the other hand, it is also necessary to consider the liability of the principal, which can not only avoid the risk of staff overreach that the commercial organization cannot prevent, but also can be understood as excluding the contractual liability of the commercial organization when the counterpart fails to fulfill the necessary duty of care.