The Jurist

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  • Chinese-Style Modernization and Subjectivity in International Law
    SHEN Wei
    2026(2): 1-14.
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    The Fourth Plenary Session of the 20th Central Committee of the Communist Party of China (CPC) has formulated a grand blueprint for the realization of socialist modernization.Promoting the construction and safeguarding of a fair, just, open, inclusive and win-win international economic order is one of the key priorities for advancing Chinese-style modernization under the 15th Five-Year Plan.The external vision and model of Chinese-style modernization is “following the path of peaceful development”, which stands in marked contrast to the modernization models of major Western powers in the shaping of international law.Since modern times, major Western powers, which have held a dominant position in economic, military and cultural strength, have taken the Western modernization model characterized by colonial expansion and capital plunder to dominate the formulation, implementation and development of international law.Under the guidance of their own subjectivity in international law, they have constructed an international legal system and an international order centered on the realization of self-interest, thus attaining a legitimized hegemonic status.With the steady growth of its national strength and international influence, China has increasingly demonstrated its subjectivity in international law.Through the construction of an independent knowledge system of international law, China promotes the reform and shaping of relevant laws, mechanisms and institutions, vigorously strives for the right to speak in the construction of the international order, constantly provides public goods for the international community, and advances the democratization of the international order.Chinese-style modernization embodies a unique subjectivity in international law that is distinct from that of the West, surpasses the great power international law under the Western modernization path, and has become a new driving force for pushing the development of international law in a more fair and reasonable direction.
  • Afterwards Acts and the Constitution of Criminal Offense
    FENG Jun
    2026(2): 15-27.
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    In recent years, there has been intense academic debate in Chinese criminal law regarding the relationship between post-act restoration of legal interests and the exclusion of a criminal offense.The central arguments in this debate differ significantly from the predominant views in German and Japanese criminal law, which emphasize that afterwards acts are relevant only to sentencing and not to the constitution of a criminal offense.This discrepancy highlights that properly addressing the relationship between afterwards acts and the constitution of a criminal offense constitutes a crucial breakthrough for the development of an independent Chinese criminal law system.While traditional criminal law theories, both domestic and foreign, define the boundaries of criminal offenses primarily on the basis of harmful conduct, China's criminal legislation and judicial practice indicate that afterwards acts—reflecting whether the actor remains loyal to legal norms—also constitute a key element in determining the constitution of a criminal offense.Where the actor's afterwards acts clearly demonstrate alignment with legal norms, there is no need to treat the prior harmful act as a criminal offense.
       
  • The Chinese Approach to the Development of Commercial Mediation: Strategic Positioning and Response to Challenges
    LIAO Yong'an
    2026(2): 28-40.
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    Against the backdrop of accelerating profound changes unseen in a century, commercial mediation, as one of the “troika” alongside litigation and arbitration, has seen its value extend far beyond the traditional scope of a mere dispute-resolution tool.To effectively implement The Commercial Mediation Regulations, it is essential to base our efforts on the current era and the overall development landscape, accurately grasp the legislative intent, and deeply understand the triple strategic value of Chinese commercial mediation in driving high-quality economic development, facilitating high-level opening-up, and contributing Eastern wisdom to global governance.In terms of functional positioning, commercial mediation should be regarded as an independent dispute-resolution mechanism, and its relationship with litigation, arbitration, and people's mediation should be rationalized.Regarding organizational nature, the non-profit character of commercial mediation organizations should be clarified to address the dilemma of insufficient motivation for market-oriented development.In industry governance, a governance model led by industry organizations should be upheld, properly delineating the boundaries between government functions and industry self-regulation.Based on the above strategic understanding and nature positioning, promoting the development of commercial mediation in China must be grounded in the practical issues unique to the process of marketization, legalization, and internationalization of Chinese commercial mediation.The market ecology of commercial mediation needs to be reconstructed across dimensions such as market demand, service supply, and risk allocation.At the level of legal regulation, supporting rules should be further improved to promote the legalized development of commercial mediation, and the issue of enforceability of agreements should be prudently addressed in alignment with the Singapore Convention on Mediation.
  • Can the Unity of Legal Order Be Based on Illegality?
    CHEN Jinghui
    2026(2): 41-54.
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    Recently, the discussions on the intersection between administrative law and criminal law, as well as between civil law and criminal law, have become one of the hot topics, giving rise to the theoretical proposition of the unity of legal order.The proposition represents an idea of describing law as a whole based on the concept of general violation.However, since “violation” can only be used to describe the breach of duty-imposing norms, and there are also a wide range of power-conferring norms in law, whether private or public power, it is insufficient to describe law as a whole.Even the duty-imposing norms must be accurately understood in conjunction with the nature of the areas of law to which they belong, and then the concept of general violation is entirely untenable.Therefore, the idea of the unity of legal order is necessarily erroneous.
  • Rethinking the Function and Content of the Principle of the Unity of Legal Order: An Examination Based on the Context of China
    ZHANG Fengming
    2026(2): 55-69.
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    Currently, Chinese legal academia attempts to resolve conflicts between departments of a legal system (civil law, criminal law, and administrative law) by constructing the principle of the unity of legal order.However, there is significant divergence in the understanding of this principle, with no consensus yet formed regarding its content and validity.Scholars in specific departments of law emphasize practical issues (such as civil-criminal intersections) but lack theoretical reflection at the jurisprudential level; meanwhile, the jurisprudential community focuses more on general theoretical construction but pays insufficient attention to the differences among departments of law.The construction of the principle of the unity of legal order should start with the “separation of departments of a legal system”, understand the legitimacy of the “isolation of legal sources”, and, on this basis, explore the legitimate conditions for the “cross-domain circulation of legal sources”.The function of the principle of the unity of legal order is to establish the legitimacy and limits of cross-domain circulation of legal sources.The foundation for the separation of departments of a legal system lies in the existence of differentiated principles of justice.The essence of the principle of the unity of legal order is the interactive principle among various specific justice principles under the category of general justice, providing a theoretical framework for addressing conflicts between departments of a legal system in Chinese legal practice.The legitimacy of legal source circulation must be constructed around the inherent justice principles of each legal department and categorized to avoid simply breaching the boundaries of legal departments based on public policy purposes.
  • Addressing the Derivative Harm of Data Brokerage
    TANG Linyao
    2026(2): 70-83.
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    Data brokerage decouples the constraints imposed by vertical data relationships on horizontal data relationships, giving rise to a novel type of derivative harm.Such harm is characterized by intangibility, latency, and cumulativeness.It cannot be adequately addressed solely by strengthening personal information protection nor easily subsumed under traditional tort liability frameworks, thus necessitating separate and ex-ante regulation.While data protection impact assessments (DPIAs) and fair data brokerage practices hold potential for materializing abstract risks into tangible harm, their effectiveness depends on incorporating substantive criteria for evaluating derivative harm.From an ex-ante prevention perspective, data integration analysis—considering the level of anonymization, data sensitivity, data collective volume, and the proportion of inferred data—should be embedded into DPIAs.Similarly, data integration analysis that accounts for the degree of subject overlap, embedded attribute overlap, processing purpose overlap, and temporal overlap should be integrated into fair data brokerage practices.The substantive degree of derivative harm must be comprehensively assessed based on the number of potential victims, the probability of harm occurrence, and the severity of harm.From an ex-post liability attribution perspective, responsibility allocation should be scientifically delineated according to the causal contribution of data brokerage activities and primary infringing acts to the harm.
  • The Study on Infringement Liability for AI-Generated Incorrect Personal Information
    ZHU Xiaofeng
    2026(2): 84-100.
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    Influenced by both technological complexity and legal lag, the determination of tort liability for erroneous personal information generated by artificial intelligence faces several challenges.These include unclear scope of protected rights and interests, confusion in imputation principles, conflicts in norms for establishing liability, and difficulties in proving constitutive elements, particularly causation.To address these issues, it is essential to start by balancing the two fundamental goals of “promoting the healthy development and standardized application of generative artificial intelligence” and “protecting the lawful rights and interests of citizens.” The scope of rights and interests in cases of infringement arising from AI-generated erroneous personal information should be defined by applying criteria such as the directness of the infringement.Through categorical differentiation, the imputation principles in such cases should be clarified: a presumption of fault imputation applies when personal information processors are involved in the infringement, while general fault imputation applies in other scenarios.On the basis of fault imputation, the normative foundation for establishing liability should be determined by integrating the two approaches—constitutive elements and interest balancing—adopted respectively in Article 1165, Paragraph 1, and Article 998 of the Civil Code.When applied to determining the establishment of tort liability for AI-generated erroneous personal information, these approaches should be combined to jointly evaluate the corresponding legal effects.When it is difficult to identify whose conduct led to the generation of erroneous personal information, the compensation rule in Article 1254, Paragraph 1 of the Civil Code may be applied by analogy.In such cases, compensation may be granted to the victim by potentially liable generative AI service providers and users, thereby balancing victim protection with the development of the AI industry.
  • Reshaping the Responsibility of Assisting Criminals in Returning Illegal Gains in Joint Crimes
    YAO Jianlong
    2026(2): 101-117.
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    In joint crimes, the judicial position of whether the helper should bear limited liability for unlawful gains or joint and several restitution liability has always been inconsistent, and there are various viewpoints such as the theory of joint and several liability, the theory of partial joint and several liability, and the theory of restitution limited to actual gains.It should be made clear that the confiscation of unlawful gains is a property-based equitable measure aiming to demonstrate that no one can profit from committing a crime and to prevent the perpetrator from using the proceeds to commit another crime.The scope of the aider in a joint crime should adopt the accomplice viewpoint of the theory of joint conduct, and on the premise of determining the overall scope of restitution of the joint offender, the aider bears the liability for restitution only within the scope of his substantive control.Based on this, the liability for restitution of illegal gains of the helper in a joint crime is as follows: first, the wages and commissions obtained by the aider for the purpose of committing the crime are within the scope of restitution; secondly, the perpetrator needs to bear joint and several liability for restitution of the illegal gains in his actual possession; finally, for unlawful gains that are neither wage dividends nor actually possessed, the substantive disposition and control authority should be used as the standard, and whether the compensation should be returned should be comprehensively determined in light of the actor's position, the nature of the work, and bank statements.
  • Reflection and Reshaping of the Allocation of Liability for Confiscation of Illegal Gains by Persons Engaging in Joint Crimes
    FENG Wenjie
    2026(2): 118-131.
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    There is controversy in academia over how to confiscate the illegal gains jointly acquired by several individuals, mainly including the theory of joint liability, theory of independent liability, the theory of the effect on the handling of accomplices' illegal gains, and theory of joint liability for disgorgement.The unsystematic independent liability theory fails to refute the critiques and does not indicate the actual profit-making method.Other viewpoints mainly suffer from either a lack of understanding the normative nature and application requirements of confiscating the illegal gains of accomplices, or a misunderstanding of the normative nature and scope of application for joint tortfeasor liability.Confiscating the illegal gains of accomplices is a balancing measure of interests, and the substantive objective profit theory should be adhered to for carrying out confiscation.The accomplices should only bear responsibility for their own actual profits, because confiscating the illegal gains of accomplices is not a measure of joint tort damages, and protecting the losses of victims and achieving special prevention purposes should not rely on confiscating the illegal gains of accomplices.The substantive objective profit theory also meets the requirements of the unity of criminal and civil law order.In the application of norms, it is necessary to substantially identify the actual amount of profits made by accomplices.It can neither treat the illegal gains of other accomplices or the corresponding share of liability for the illegal gains obtained by the group as one's own illegal gains, nor adopt the joint liability theory in the event of an inability to distinguish the actual amount of profits made by each accomplice.The distribution of property can be calculated by using the estimation rules for the confiscation of illegal gains.
  • Judicial Remedies for Third-Party Property Erroneously Sold at Auction—Centered on Article 6 of the Interpretation on Actions Against Enforcement Objections
    CHEN Hangping
    2026(2): 132-144.
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    Where a third party holds civil rights in the subject matter sufficient to exclude civil enforcement but fails to timely or effectively prevent the court from auctioning the property, the confirmation of the auction sale constitutes improper enforcement of the third party's property (“erroneous sale”). Article 6 of the Interpretation on Actions Against Enforcement Objections provides partial regulation of this scenario, yet contains debatable aspects.Under a judicial auction regime premised on a modified “public law theory,” priority is accorded to the stability of the purchaser's ownership (except where the applicant for enforcement is the purchaser). Unless the purchaser acted in bad faith or the enforcement act is void due to exceptionally serious procedural illegality, the third party may not seek revocation of the ruling confirming the auction sale or recovery of the property.In litigation over enforcement objections, where recovery of the erroneously sold property is unavailable, the court may, upon clarification, allow the third party to amend the claim to seek payment of the proceeds.Given the inherent difficulty of interest balancing in erroneous-sale cases, it is necessary to strengthen three safeguards—property seizure, third-party objections, and actions against enforcement objections—and to prevent erroneous sales through presumptions based on the appearance of rights and rules on the burden of proof.In particular, actions against enforcement objections should adopt either the “new formative action” theory or the “remedial action” theory to resolve, in a single and integrated proceeding, disputes over enforceability and ownership, thereby improving the efficiency and effectiveness of relief.
  • Research on the Dilemmas and Integration of the Action for Remedy of Third Parties in China
    LIU Zhewei
    2026(2): 145-159.
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    Through successive amendments to China's civil procedure legislation, the current three types of third-party remedial litigation have been established, forming an institutional pattern where the Litigation of Objection to Execution, third-party application for retrial, and Third-Party Revocation Action coexist.While acknowledging the legitimacy of this legislation in the sense of the principle of democratic legislation—as it aligns with the traditional notion of “adapting to judicial reality” and responds to the social need of cracking down on false litigation—we should also recognize the practical problems arising therefrom, including the erosion of judicial authority, overlapping of procedural functions, and waste of judicial resources.To clarify the relationships among these procedures, clear distinction criteria should be established through interpretive theory: the existence of enforcement proceedings shall serve as the formal element, and the ascertainability of an erroneous judgment infringing on the third party's interests shall serve as the substantive element—thereby accomplishing the systematic integration of third-party remedial litigation.The substantive element shall be strictly limited to three scenarios: fraudulent litigation, impossibility of performance, and specific risk.It is noteworthy that, regarding the third scenario (specific risk), judicial practice and the Interpretation on Litigation of Objection to Execution have restricted the circumstances applicable to third-party applications for retrial, making its scope formally narrower than that of the Third-Party Revocation Action.Ultimately, within the coordinate “four quadrants” formed by the intersection of formal and substantive elements, the third-party application for retrial, Third-Party Revocation Action, institution of a separate lawsuit, and Litigation of Objection to Execution shall be applied respectively.
  • Systematic Construction of Criminal Records Sealing System
    KANG Zihao
    2026(2): 160-173.
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    The sealing of criminal records system is justified by the fact that the criminal records have lost their relevance to the construction of norms of conduct in current society and the maintenance of society with the passage of time, and should no longer be concerned by the law.Accordingly, a two-stage model of criminal record sealing system should be established: the first stage criminal record sealing aims to rehabilitate the qualifications and rights of offender, and the second stage of it will completely remove the negative impact of the criminal record on the offender.Regardless of the stage of criminal record sealing, criminal records should be sealed as soon as the time limitation presumed by the legislator, after which the legal significance of the criminal record will disappear, has expired.Whether the offender has shown personal dangerousness is only one of the factors affecting the legislator's presumption of the rate of erosion of the legal significance of the criminal record, and can only lead to the interruption and reduction of the statute of limitations for the sealing of the criminal record.The record of crimes that seriously jeopardize national security and public safety should not be sealed.The same statute of sealing limitations period should be provided for crimes committed by both minors and eduts.
  • A Hermeneutic Analysis of the Rules Governing Director Resignation,Dismissal, and Retention:Focusing on Articles 70 and 71 of the Company Law
    CHEN Chang
    2026(2): 174-188.
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    The legal relationship between a director and the company should be construed under the “dual legal relationship” theory: an organic legal relationship coexists with a foundational contractual relationship, each differing in nature and function, and should not be conflated.The mainstream theory of the contract of mandate, which attempts to encompass all aspects within a single relationship, presents numerous theoretical inconsistencies that are difficult to reconcile.The director resignation and dismissal fall within the scope of the organic legal relationship.The rules establishing that resignation and dismissal can be “without cause”(as provided in Article 70 (3) and Article 71 (1) of the Company Law) are justified by the inherent logic of the organic relationship, not by the right to terminate a mandate contract at will.The rule allowing resignation without cause should not be interpreted as a default norm, whereas the rule allowing dismissal without cause can be considered a default norm.Article 71 (2) is essentially a referential legal provision; the basis for a director's claim for compensation lies in the breach of the contract of mandate, not in organizational law norms.The mandatory retention system for directors stipulated in Article 70 (2) suffers from theoretical ambiguities and poor practical outcomes.It is necessary to introduce rules specifying a time limit for the company to appoint new directors, supplemented by a system for the removal of registered director information, to improve the mandatory retention system.To holistically address the issue of insufficient statutory number of board members, aside from the director retention system, comparative law measures such as the emergency appointment of directors and alternate director systems offer valuable insights for legislative consideration.