The requirement of portrait identifiability is crucial in disputes involving images with “removed facial features,” and its significance has increased with the rise of AI-generated virtual avatars.Existing “holistic assessment” approaches rely heavily on judicial discretion, creating uncertainty and overlooking the need for differentiated identifiability standards that correspond to the distinct legal interests protected by portrait rights.These interests include dignity, identity, and commercial value.The standard of identifiability should therefore vary accordingly: for dignity interests, what should apply is the most permissive standard—identifiability exists if the rights holder himself can recognize the image; for identity interests, the test is whether people familiar with the rights holder can confidently conclude that the image refers to that person alone; and for commercial interests, the strictest standard applies, requiring that the general public, under isolated comparison, can immediately recognize the person depicted.This framework supports a more nuanced and coherent approach to portrait identifiability.

The premise for elucidating the relationship between personal information rights and data property rights lies in clarifying the attribution of property interests in personal data, based on the recognition that personality interests inherently belong to the individual.The property interests in personal data are jointly generated by the data subject and the processor, forming both vertical and horizontal symbiotic relationships.Driven by the “symbiotic mechanism” of personal data property interests, the relationship between the data subject and the data processor should shift from “opposition and competition” to “mutual dependence,” the hierarchy of rights should shift from “absolute priority” to “synchronous generation,” and the regulatory model should shift from “exclusive entitlement” to “governance norms.” Consequently, personal information rights and data property rights constitute two parallel rights, formed by assigning different utilization powers over personal data to the data subject and the processor respectively.Data subjects can manage their personal data property interests through personal information rights, while data processors, by virtue of lawful data processing, enjoy data property rights encompassing possession, use, and operational rights.

The introduction of the principle of proportionality from administrative law into criminal law theory directly has problems of insufficient interpretative power and practicality, resulting in the error of “one-size-fits-all”, so it is necessary to recreate it in combination with the characteristics of criminal law.Different from the theory for interpreting problems, the theory for solving problems takes legal norms as the main axis and legal practice as the orientation, and is more characterized by legal hermeneutics.China's criminal law theory cannot simply copy the principle of proportionality in administrative law.It is necessary to carry out localization transformation of the three sub-principles of the principle of proportionality to achieve the fundamental transformation of the principle of proportionality from a theory for interpreting problems to a theory for solving problems, and to establish a multi-level, standardized and constitutionally related filtering mechanism within it.Among them, the principle of suitability attaches importance to the judgment of the legitimacy of the purpose and needs to be justified by the theory of legal interests.The principle of necessity advocates the correspondence between the typification of crimes and the individualization of review standards, emphasizing that different standards of leniency, strictness and the most strict review should be adopted for different criminalization legislations based on the distinction between minor crimes, intermediate crimes and serious crimes.The principle of excessive prohibition needs to take basic rights as the substantive value argument and incorporate the ultimate standard of human dignity into the measurement of legal interests.

The crime of contract fraud is a purely economic crime, and its legally protected interest is not property rights.The essence of the illegality of contract fraud is that the perpetrator deceives the victim into performing contractual obligations while anticipating his own serious non-performance, thereby undermining the transaction credit embodied in the contract and degrading the market's overall evaluation level of contract performance environment in a country as well as its corresponding function of guaranteeing such performance.Therefore, this article proposes that the legally protected interest of the crime of contract fraud is the credit of transactional contract.Based on this premise, the focus of illegality assessment should shift from “property” to “contractual obligations”, with “anticipated serious non-performance” at its core.The fundamental structure of the crime of contract fraud can be restated as follows: In the process of signing or performing a contract, the perpetrator fabricates or conceals the fact of his anticipated serious non-performance of contractual obligations→the other party develops a mistaken belief regarding the perpetrator's serious non-performance of contractual obligations→the other party performs his own contractual obligations based on this misapprehension→the perpetrator refuses to fulfill his corresponding contractual obligations.The reconstruction of the crime of contract fraud not only clarifies its relationship with the crime of fraud as one of ideal concurrence rather than normative concurrence, but also provides a new framework—that is the “new fundamental structure theory” —to determine whether a contract fraud amounts to the crime of contract fraud, thereby solving the problem of inverse relationship between quantitative degree of crime and criminalization threshold and the demarcation between criminal offense and civil act.

Currently, there is an urgent need for theoretical interpretation and reconstruction of the protection paradigm for procedural rights of counterparties in automated administration.The existing theories mainly include “embedded protection theory”,“indiscriminate protection theory”, and “phased protection theory”.The embedded protection theory has the problems of weakening administrative due process and virtualization of new rights, which are due to the erosion of procedural rights by technological governance measures and the technological dependence of procedural rights.The original intention of the “indiscriminate protection theory” is to adhere to the essence of procedural rights and follow the form of procedural consistency, but leads to obvious technical adaptation difficulties and legal norm incompatibility issues.The “phased protection theory” attempts to achieve rights protection through local optimization, but faces the problems of fragmented procedural rights and the replacement of legal logic with technological logic.In view of this, it is necessary to choose and establish a “whole process protection theory” that combines “three-dimensional” and “third-order progression”.Compared to existing theories, the “whole process protection theory” has its unique value and comparative advantages.In the future, systematic protection of procedural rights can be achieved through the establishment of a sound preferential protection mechanism through legislation, the reconstruction of law enforcement systems that focus on procedural rights protection, and the strengthening of administrative litigation remedies.

Whether a debtor provides a personal or proprietary guarantee to an external party, the absence of reasonably equivalent consideration renders the transaction detrimental to the debtor's estate.Although the right of recourse acquired by the guarantor after performance may be regarded as a form of consideration, it is patently unreasonable.Consequently, such external guarantees possess the potential to be characterized as fraudulent transfers.When a guarantee is provided during the suspect period preceding bankruptcy, it is presumed that the debtor was insolvent at that time and acted with intent to defraud creditors.Under the principle of objective equivalence, the determination of reasonably equivalent consideration must account for both direct and indirect benefits accruing to the debtor at the time of the transaction.If reasonable consideration is established, the guarantee should not be voidable.In the context of intra-group guarantees among corporate group members, reasonable consideration is deemed present when the primary obligor and the guaranteeing debtor share identical interests.The avoidance of a debtor's external guarantee in bankruptcy proceedings should be contingent upon the counterparty's subjective bad faith.The principle of constructive knowledge shall guide the assessment of such good or bad faith, thereby balancing the need for transactional security with the efficiencies required in bankruptcy administration.

Since criminal jurisdiction enjoys the multiple attributes of international law and criminal law, as well as procedural and substantive law, both the causes of jurisdictional conflicts between states and the methods for their coordination exhibit notable particularities.In addition to the driving role of international suppression conventions, the expansion of “territorializing of the extraterritorial” and the absence of the “principle of legality” have more directly contributed to the emergence of positive jurisdictional conflicts among states.Neither the “non bis in idem” principle from criminal procedure law, the “principle of comity” from public international law, the concept of “jurisdictional hierarchy” in international criminal law, the “application of foreign law” in private international law, nor the recent practice of “transnational coordinated resolution” can fully resolve such conflicts.Against the backdrop of the continuous rise in cross-border criminal activities involving China, it is essential to comprehensively assess and appropriately employ relevant coordination mechanisms.Through institutional arrangements such as revising the Criminal Procedure Law, China should prepare for both “competition” and “cooperation” in coordinating foreign criminal jurisdictional conflicts, thereby effectively safeguarding and properly exercising its criminal jurisdiction.

China's current Enterprise Bankruptcy Law does not establish a systematic regime for subordinated claims.In practice, the determination of repayment priority has relied predominantly on judicial policy documents, resulting in inconsistent treatment of certain special categories of claims.Article 162 of the Enterprise Bankruptcy Law (Draft Amendment) adopts an enumerative approach to defining subordinated claims, yet its underlying doctrinal logic requires further clarification. “Statutory” subordinated claims reflect bankruptcy law's respect for non-bankruptcy legal norms, and the subordinated treatment of interest claims constitutes a logical extension of the rule that interest ceases to accrue upon the commencement of bankruptcy proceedings.Likewise, claims arising from the debtor's issuance of subordinated bonds should be subordinated according to their statutory meaning.Claims based on connected relationships rest on the doctrine of equitable subordination.The scope of this doctrine should extend to claims among family members, and its operation should be refined through case-specific review to ensure substantive fairness.Finally, given bankruptcy law's socially oriented character, punitive claims should also fall within the category of subordinated claims.A further distinction is required between private-law and public-law punitive claims, and hybrid claims that serve both compensatory and punitive functions should be treated differentially.

The essence of the reorganization procedure is negotiation, and the outcome is the reorganization plan.The reorganization negotiation is different from the autonomy of will in traditional private law.The main difference lies in that the voting for the reorganization plan does not require unanimous consent, and the dissenters are also bound by the reorganization plan.The court's approval of the reorganization plan is actually a judicial review of the reorganization plan, aiming to protect the dissenters and safeguard the integrated social interest.The provisions in China's Enterprise Insolvency Law regarding the consensus approval conditions of the reorganization plan are not clear, and the conditions for cram down are unreasonable.The crux of the problem lies in the failure to properly align the logical relationship between consensus approval and cram down.Cram down needs to meet all the conditions except for the acceptance of the reorganization plan by each voting calss in consensus approval.The best interests test is not an exclusive condition for cram down and should be moved into the sequence of consensus approval conditions, and it should apply to all voting classes, not just the creditor classes.The absolute priority principle and the fair and equitable principle should be exclusive conditions for cram down.Cram down should also meet the condition that at least one impaired class must accept the plan and the acceptance of that impaired class must be calculated without including the acceptance of any subordinate creditor and shareholder class.

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.

Corporate governance is the outcome of competition among various agreements.As different manifestations of shareholder consensus within a company, shareholder agreements, shareholders' resolutions, and the articles of association differ significantly in their purpose, parties, formation, content, and legal effect.Each operates within its own distinct scope, and only under specific conditions can they substitute for or be converted into one another.First, shareholder agreements encompass two types:“contracts with opposing objectives” and “contracts with aligned objectives”.In contrast, the consensus embodied in corporate resolutions and articles of association invariably represents an “agreement with aligned or constructively aligned objectives”.Second, the parties to a shareholder agreement are freely chosen by the intending signatories; however, the participants in corporate resolutions and the articles of association are statutorily prescribed.Third, the mode of forming a shareholder agreement is the most flexible and is fully subject to the provisions of contract law concerning the formation of agreements.In contrast, the consensus manifested in a corporate resolution takes the form of a series of formalized “collective actions” and “written instruments.” The creation and amendment of the articles of association are formal acts, characterized by “absolute written form”.Furthermore, with respect to content, shareholder agreements embody a greater degree of private autonomy and are relatively unrestricted.Corporate resolutions and the articles of association, however, must comply with the pre-existing constraints of laws and regulations, and may only incorporate “limited discretionary matters”.Finally, regarding legal effect, when a shareholder agreement, a corporate resolution, and the articles of association are inconsistent, a differentiation-based approach should be adopted to determine the priority of the different documents.Any shareholder consensus that violates mandatory legal provisions or public order and good morals is void ab initio and cannot be subject to substitution or conversion.In certain circumstances, conflicts should be resolved by applying the principles of priority in time, priority of resolutions, and priority of articles of association.

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.

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.

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 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.

The planned development path embodies the broad vision and great wisdom of a major late-developing modernizing country in advancing the modernization of the rule of law, and constitutes the distinctive features and notable advantages of the modernization of the rule of law with Chinese characteristics.The Recommendations of the Central Committee of the Communist Party of China on Formulating the 15th Five-Year Plan for National Economic and Social Development, adopted at the Fourth Plenary Session of the 20th Central Committee of the Communist Party of China, follows this planned development path and lays down the overall blueprint, roadmap and implementation plan for the modernization of the rule of law with Chinese characteristics during the 15th Five-Year Plan period.The modernization of the rule of law with Chinese characteristics is a great historical process advancing in a consistent and phased manner.The overall philosophy and development direction for this modernization drive in the 15th Five-Year Plan period are to adhere to the guidance of Xi Jinping Thought on the Rule of Law, improve the system of socialist rule of law with Chinese characteristics, develop a higher-standard socialist country under the rule of law, fully advance the law-based governance in all fields of state affairs, and ensure the development of a modern socialist country through high-quality rule of law.

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.

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.

It nedds to be rethought that the qualifications of the applicant for administrative reconsideration should always theoretically and practically follow the evolution of the qualifications of standing in administrative litigation.The determination of standing mainly focuses on the protection of individual rights, which is the result of the court's reasonable positioning of its own role under the division of powers.The connection between administrative reconsideration and administrative litigation does not mean that their relevant contents are identical; otherwise, it would undermine the inherent effects of both.Simply applying the theory of standing to determine the qualifications of the reconsideration applicant may lead to a narrow recognition of legal rights and interests, insufficient understanding of vested interests, and an inability to adequately protect both private and public interests.In the future, it is necessary to interpret stakeholder interests flexibly based on the characteristics of administrative reconsideration as an internal supervision mechanism; this will not only resolve individual case disputes but also clarify the law to constrain administrative actions, thereby effectively enhancing the oversight functions of administrative reconsideration.

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.

Independent legal historiography should neither be reduced to a subsidiary of legal doctrine by serving merely as a historical explanation, nor be confined to causal descriptions typical of general historiography at the expense of its normative dimension, nor should it lapse into the abstractions of historical philosophy.The way to avoid these pitfalls lies in adopting the historical approach of legal doctrines and employing methods of general historiography to situate institutions and norms within their historical contexts and to analyze their causal relations, and then, through reflection and imagination, producing general legal theories.The leap from legal history to legal theory inevitably encounters the critique of naturalism—that is, the epistemological gap between empirical facts and normative values.Moreover, the general normativity produced by legal theory grounded in legal history is necessarily limited and incomplete.Nevertheless, legal historiography can still begin from specific or abstract legal problems and, with the aid of general historical methods and philosophical reflection, distill and derive meso- or macro-level general doctrines or ideas of law.Through the comparative perspective of legal history and the dialogical interaction between legal historiography and legal theory, the speculation of universal legal history and the “modernism” of the history of legal doctrine can be overcome.In this way, the legal-theoretical production of legal history can be subjected to the most thorough examination, revision, and critique.

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.

In the judicial remedy for damage to the ecological environment, the direct application of liability for restoring the eco-environment often encounters practical obstacles, while an over-reliance on liability for monetary compensation leads to challenges in fund management and utilization.Alternative restoration can alleviate this contradiction to a certain extent; both alternative and direct restoration aim at recovering the integrated interests of the eco-environment, falling under the broad category of restitutio in integrum as a flexible adaptation of direct restoration in terms of nature, space, and time.Although the Eco-Environment Code establishes alternative restoration Responsibility at the codification level for the first time, providing a legal basis for its implementation, its normative application remains to be clarified.As both alternative restoration and monetary compensation serve as alternative forms of direct restoration, their applicable relationship constitutes a challenge in practice.Through a typological approach, the relationship between the two can be rationalized: the damage indemnification effect of heterogeneous alternative restoration is weaker than direct restoration but stronger than monetary compensation, placing its priority between the two; the effect of off-site alternative restoration diminishes as spatial distance increases, yet it precedes monetary compensation when the restoration occurs within the same county as the damage; and heterochronic alternative restoration manifests in judicial practice as either restoration or the prevention of future damage, where the liability for monetary compensation and the liability for alternative restoration are identical in nature, and prevention-oriented methods such as “compensation of labor service” or “technical transformation deductions”, rank lower in priority than monetary compensation and require strict scrutiny regarding their necessity, effectiveness, and feasibility.

The contribution of data assets as capital represents an innovative form of data asset circulation and utilization.The development of institutional rules should be based on the essential attributes of data, adhere to the fundamental value concepts of Company Law, and appropriately balance autonomy and regulation, making adaptive interpretations to the existing capital contribution rules within the Company Law framework.The subject matter of data asset contribution is the property right in data.A contributor may make capital contribution either with the full property right in data, or with an independent right to use or operate data.Since the circulation and utilization of data constitute the main way to realize data value, contribution based on the right to use or operate data should serve as the primary form of data asset contribution, and the sole form for the contribution of public data.Concerning the contribution agreement, valuation by a third-party appraisal institution is not mandatory; the price mutually agreed upon by the contributor and the company is deemed fair.In terms of agreement terms, restricting the proportion of data asset contribution is unnecessary.However, the contributed data assets should be required to be relevant to the company's business operations.Regarding the performance of contribution obligations, contributors typically bear collateral obligations.These collateral obligations do not terminate or transfer upon the contributor's subsequent sale of their shares.In terms of liability for capital deficiencies, it is essential to enhance the responsibility system for directors and management in maintaining capital adequacy.This involves clearly distinguishing the roles of directors and defining responsibilities for assessment, collection, and inspection to achieve a more detailed accountability framework for directors.

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.

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 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.

Determining the grounds on which a result is attributed to an actor is one of the most fundamental issues in criminal law.There are two primary justifications: control and duty.First, the opposite of control is responsibility.The attribution of results in cases of intentional conduct is based on the control of will, which is mutually exclusive.Therefore, in scenarios involving “intentional conduct+intentional conduct,” the attribution relationship between the actor and the third party may be exclusive.Second, the consequence of duty violation is responsibility.The attribution of results in cases of negligent conduct is based on duty violation, which is not mutually exclusive.Similarly, in scenarios involving “negligent conduct+intentional conduct,” the attribution relationship between the actor and the third party is not necessarily exclusive.Result attribution in cases of negligent conduct requires a two-step analysis. (1) Risk Creation: Assessing the illegality of the conduct at this stage requires examining the establishment and allocation of duties of care.The principle of reliance is merely a conclusion of duty allocation, not its basis. (2) Risk materialization: Determining result attribution at this stage requires assessing the protective scope and effectiveness of the duty of care.A duty is invalid if it exceeds the actor's capacity to fulfill it, specifically in terms of the foreseeability and avoidability of the result.A violation of an invalid duty lacks illegality and therefore excludes result attribution.

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.

《法学家》2026年第1期目录(总第214期)
专题：深入学习贯彻党的二十届四中全会精神
法治规划、建构理性与中国式法治现代化———对党的二十届四中全会精神的法治解读 黄文艺 (1)

主题研讨一：人工智能时代的法学回应
论人工智能时代肖像可识别性的判断标准 阮神裕 (15)
个人信息权益与数据产权的关系释论 王 年 (30)

主题研讨二：企业破产法修订立法研究
法院裁定批准重整计划的原理与规则优化———兼评 《企业破产法 （修订草案）》第123条和第126条 徐阳光 (46)
论破产程序中债务人对外担保行为的撤销 范佳慧 (58)
破产劣后债权的类型化区分与立法完善 韩 玥 (70)

专　论
法律史如何生产法理论 肖 伟 (80)
比例原则的刑法学再造 姜 涛 (96)
行政复议申请人资格的判定 高秦伟 (112)
自动化行政中程序性权利的保护范式 刘启川 (125)

视　点
公司法上“多元合意”之竞争———论股东合同、决议与公司章程的差异性 蒋大兴 (140)
重塑合同诈骗罪：从保护法益到基本构造 汪雪城 (164)
跨国犯罪刑事管辖权的冲突：成因、协调方法与我国对策 朱 丹 (177)

Although freedom of contract and the principle of pacta sunt servanda remain formally recognized, Chinese courts frequently grant consumers a right to terminate prepaid consumption contracts without cause and often order businesses to refund most or all unused prepaid amounts.This approach stands in sharp contrast to the widespread industry practice of either prohibiting termination or allowing only limited refunds.The uniformity of such contractual terms does not necessarily result from industry collusion; rather, it may reflect a rational response to the distinctive structure of prepaid transactions.Unlike ordinary contracts, prepaid consumption contracts are characterized by the absence of substitute transactions and a high proportion of fixed costs.Once a consumer withdraws, businesses are often unable to mitigate losses through replacement transactions, while the recovery of fixed costs becomes frustrated.By routinely awarding near-full refunds, courts effectively create a no-cause termination right whose costs are borne by businesses.Generalizing such a rule may not only undermine operational stability but also reduce consumer welfare through diminished supply and higher prices.Accordingly, consumers should not be granted a right of no-cause termination at the expense of businesses.Legitimate withdrawal needs can instead be accommodated by recognizing specific grounds for termination and recalculating consumed services according to the pricing tier that would have applied absent the prepaid commitment.

China's Company Law imposes three requirements on related-party transactions: disclosure, proper approval procedures, and fairness of consideration.However, the validity of transactions that violate these requirements remains contested.Since such transactions inherently involve conflicts of interest, regulation should focus on managing rather than prohibiting conflicts.Given their complexity and the subjectivity of fairness, courts should respect procedural safe harbors and treat fairness as the ultimate safeguard.The validity of unlawful related-party transactions should be assessed on both procedural and substantive grounds.Procedural defects do not automatically render a transaction void.If a transaction harms the company, it may be deemed ineffective upon the company's request, and the company has the exclusive standing to seek such a determination.At the procedural level, a transaction should be presumed valid if there is full disclosure and approval by a conflict-free decision-making body.In the absence of proper procedures, validity depends on an entire fairness review, with the burden of proof on the counterparty.

In constructing China's autonomous international law knowledge system, it is critical to understand the significance of such a knowledge system, which can be analyzed within the theoretical framework of the relationship between knowledge and power.International law knowledge differs from domestic law knowledge in the mechanism by which knowledge generates power.International law knowledge is closely linked to the power of international governance and serves as an important mechanism for shaping the world order.Its influence on power is exerted not only by directly and explicitly affecting policy-making, rule-making and adjudication, but also in more subtle ways, such as shaping the boundaries of expertise, setting agendas, and obscuring critical issues.The key to constructing China's autonomous knowledge system of international law lies in agenda autonomy.Therefore, international law corresponds to multinational, international and transnational mechanisms and involves a global expert community.The pursuit of autonomy in the knowledge system rests on commonality rather than particularity.The construction of such an autonomous knowledge system requires not only the production of knowledge, but also the development of institutions for knowledge selection, circulation and consumption.It demands not only the active participation of Chinese scholars themselves, but also integration with exchanges and mutual learning among civilizations and mobilizing the international expert community.It should open to other disciplines rather than limiting to international law expert community.

The tort liability associated with data scraping essentially epitomizes the fundamental tort law dilemma of balancing rights protection with behavioral freedom within the digital economy.As publicly available personal data simultaneously embodies data property interests and personal information rights, scraping activities can precipitate multiple forms of damage.In terms of data property interests, scraping that inflicts either competitive harm or operational interference upon a platform's data utilization constitutes a tort; nevertheless, these two types of infringement differ significantly in damage assessment, fault determination, and methods of liability.Within the ambit of the right to data portability, individual authorization can legitimize the competitive damage induced by scraping, yet it does not preclude the constitution of an interference-based tort.Concerning personal information rights, the scraping party bears presumed fault liability for damages arising from scraping that exceeds the reasonable scope of processing publicly available personal data, and compliance with the Robots Exclusion Protocol cannot serve as an exculpatory defense.Although the scraper may invoke “excessive performance costs” as grounds to refuse data deletion, it remains liable for compensatory damages.Furthermore, if the source platform breaches its personal information protection obligations, it shall assume supplementary liability commensurate with its fault, whilst retaining the right to seek recourse against the scraping party.

Generative Engine Optimization (GEO) is typologized into four modalities based on patterns: source-based, long-tail, reputation-control, and model-intervention, necessitating a regulatory paradigm shift from traditional SEO.In light of economic law principles and GEO practices, this paper establishes four criteria for legality assessment-authenticity, transparency, legitimacy, and proportionality-to be applied distinctively according to GEO types.A robust regulatory framework can be constructed through the interpretive application of legal norms, such as deceptive publicity regulations, disclosure mandates for advertising, and both specific and general clauses of unfair competition law.The regulatory outcomes will be further enhanced through the collaborative governance of enforcement bodies, the judiciary, AI service providers, and consumers.

Today, when artificial intelligence technology is widely used, unpredictable risks have increased greatly, and the identification of culprits is far more complicated than in industrial society.It is impossible to implement the application of artificial intelligence technology without people.What the theory of negligent crime must face is the intelligent problem of “human-machine hybrid”.A reasonable theory of negligent offense should transcend school disputes, affirm that problem thinking is more important than system thinking, and regard the possibility of avoiding results as the focus of evaluation, thereby ending pure academic disputes.The possibility of foresight is the prerequisite for fulfilling the obligation to avoid the prohibited result.The possibility of foresight in the application scenario of artificial intelligence technology is neither a fairly specific foresight nor a sense of uneasiness, but a low-level danger foresight that is less certain and difficult to be customized.Only in this way can the relationship between encouraging innovation and avoiding major accidents be balanced.The core of negligent offenders in the era of artificial intelligence is the issue of risk control, that is, whether those who design procedures and manufacture products can effectively control and avoid risks.In order to prevent the use of artificial intelligence technology, relevant plans that are reasonable and systematic under the technical conditions at that time are designed.The performance of presupposed obligations of risk elimination is the characteristic of the theory of negligent offenders in the modern information society.The presupposed obligation of risk elimination above the obligation of information collection has thus become the core content of the obligation of consequence avoidance.Regarding the identification of negligent crimes in the era of artificial intelligence, we must seriously treat the issue of penalty limitation, recognize the legal principle and trust principle of permissible dangers, and implement the moderation of criminal law in the field of negligent crimes.

《法学家》2026年第2期目录(总第215期)
专题：构建中国自主的法学知识体系
中国式现代化和国际法主体性 沈　伟 (1)
事后行为与犯罪成立 冯　军 (15)
商事调解发展的中国方案：战略定位与挑战因应 廖永安 (28)

主题研讨一：“法秩序统一性”的法理反思
反思法秩序统一性原理的功能与内涵———基于中国语境的考察 陈景辉 (41)
个人信息权益与数据产权的关系释论 张峰铭 (55)

主题研讨二：数字法学研究的多维视角
数据经纪的衍生风险与法律应对 唐林垚 (70)
论人工智能生成错误个人信息的侵权责任 朱晓峰 (84)

主题研讨三：共同犯罪违法所得处置的责任配置
共同犯罪中帮助犯违法所得退赔责任之重塑 姚建龙 (101)
共犯人违法所得没收责任配置的反思与重塑 冯文杰 (118)

主题研讨四：案外人民事权利的司法救济机制
“误拍”案外人财产的司法救济———以 《执行异议之诉解释》第6条为中心 陈杭平 (132)
案外人救济之诉的现实困境与体系整合 刘哲玮 (145)

专　论
犯罪记录封存制度的体系化构建 康子豪 (160)
董事辞任、解任与留任规则的释义学展开———以 《公司法》第70、71条为中心 陈　畅 (174)

Most scholars in the field of criminal law in China regard the proviso in article 13 of Criminal Law as the restrictive conditions of crime in the constitution system, and hold that the circumstances in the proviso are the same as those in the specific provisions as the quantitative factors of crime.However, in judicial practice, proviso is more often regarded as an independent cause of decriminalization outside the constitution system.The fundamental reason for the divergence between theory and practice lies in the different interpretations of the relationship between the circumstances of proviso and the quantitative circumstances of crime in the specific provisions.Proviso does not belong to the system of quantitative elements of a crime, and there are essential differences between the circumstances of proviso and the quantitative circumstances of crime in the specific provisions, and they two carry different functions.The function of the degree circumstances of crime in the specific provisions is to limit the scope of crime from the quantity of illegality, however, the circumstances of proviso are the causes of decriminalization because of absence of need for punishment under the consideration of criminal policy.The need for punishment depends on the necessity of prevention, including special prevention and general prevention.Therefore, the circumstances of proviso include those which reflect the absence of necessity of special prevention and those which reflect the absence of necessity of general prevention.If the act constitutes a crime, it is punishable, but if the “harm is not serious”, it can be decriminalized according to the proviso because of absence of need for punishment.

Where two or more guarantors exist for the same obligation without an agreement on their respective shares of guarantee, Article 699 of the Chinese Civil Code has revised the previous presumptive rule of joint and several liability under Article 12 of the former Guarantee Law.Nevertheless, considerable controversies remain.As to the forms of joint guaranty, in accordance with the fundamental principles of the interpretation of manifestation of intent, joint and several guaranty liability shall be established only if the parties expressly agree on it, or if the guarantors are proved to have a common intent to share the guaranty liability.As to the scope of each guarantor's liability, if joint and several guaranty liability is established, the scope of guaranty liability shall be determined by the agreement between the guarantor and the creditor; if not, each guarantor shall be liable to the creditor within its agreed scope of guaranty liability or for the full performance of the obligation.In principle, no guarantor shall have a right of recourse against other guarantors, as bearing guaranty liability shall neither constitute performance by a third party nor give rise to a statutory transfer of the claim.A right of recourse among guarantors shall be legally enforceable only in either of the following circumstances: a joint and several guarantee is established among them, or the guarantors have expressly agreed on the right of recourse.

The time limit for instituting litigation is a procedural system under the Administrative Litigation Law, with a similar litigation effect to the statute of limitations.It is primarily aimed at early ascertainment of administrative legal relations and protection of legal certainty, with its institutional design consistently protecting the parties' right to litigation.In terms of institutional design, consistent attention is paid to protecting the parties' right to litigation.Currently, the time limit for instituting litigation is uniformly applied to all types of claims, yet it should be restricted to claims for revoking administrative decisions.Claims for performance, which are forward-looking, ought not to be subject to such a time limit, and declaratory claims should only be bound by the requirement of declaratory interest.The time limit for instituting litigation comprises both subjective and objective periods.For the calculation of the subjective time limit, the criterion shall be whether the right holder is in a position to exercise the right to litigation.Where there are obstacles to the right holder's exercise of the right to litigation, the existing law stipulates the suspension and extension of the time limit for instituting litigation.However, these two provisions are difficult to distinguish and produce similar effects, hence they may be unified into a single regulation, and the causes for suspension shall be categorized.This is to enable the parties to accurately understand the rules and effectively exercise their right to litigation.Only when the time limit for instituting litigation is properly designed can the relationship between legal certainty and the protection of the right to litigation be reasonably balanced.