With the advent of the artificial intelligence (AI) era, criminal law is urgently required to establish rules for liability attribution in AI-related crimes.Both the criminal liability subject theory and the criminal tool theory are inherently limited, thus necessitating a bridging theory that balances future technological development and current attribution needs.Through the deconstruction of the criminal subject concept, AI systems without criminal responsibility capacity can still qualify as behavioral subjects, creating a bridging behavioral subject theory beyond the two traditional theories.The concept of behavioral subject in China's criminal law system is expandable, and the subject in an act is not necessarily limited to natural persons.Under the social behavior theory, AI behaviors that possess behavioral self-awareness qualify as acts within the meaning of criminal law, thus validating AI's status as a behavioral subject.When AI participates in crimes, liability attribution shall be conducted in accordance with the framework of crime participation.This theory provides a multi-subject foundation for liability attribution.For AI behaviors, the subject behind AI shall bear vicarious liability, and the behavioral subject theory facilitates accurate determination of each subject's responsibility.

The close link between the dereliction of duty by state officials and major safety accidents reveals its significant value in theoretical research.When analyzing the causal relationship between acts of malfeasance and resulting harm, traditional doctrines exhibit limitations, often failing to transcend the attributional level of the causal process.The stance of moderated outcome attribution and remote cause accountability fully acknowledges the particularities of malfeasance, yet it has not provided convincing answers as to why the standards of attribution need to be lowered and to what extent they should be reduced.The failure of public officials to fulfill their supervisory duties should be interpreted as an act of contributory negligence, with its illegality being subordinate to the illegal activities of the supervised party.When the derelict behavior of public officials objectively plays a role in promoting or inducing illegal activities, the illegality of the outcome can be affirmed, thereby achieving a moderated attribution of outcomes and remote cause accountability.The crime of supervisory malfeasance exhibits independence at the level of illegal conduct, and the focus of illegality judgment should shift from the outcome to the act itself, necessitating the use of key elements such as the possibility of foresight to accurately define the scope of the duty of care.In light of the social roles and performance logic of state officials in the supervision and management of work safety, the specific scenarios of the duty of care can be categorized into three types: conducting special rectification activities, routine risk inspection, and responding to public reports.In each scenario, the content of the duty of care and the standards for determining its violation differ.

“Effectiveness” constitutes the core competitiveness of institutional design.Resolving disputes through direct confrontation is fundamental to enhancing the effectiveness of administrative reconsideration and intrinsically necessary for the substantive resolution of administrative disputes.In this regard, substantializing reconsideration hearings is key to enhancing administrative reconsideration's substantive dispute resolution capacity and establishing it as the primary dispute resolution mechanism.From the perspective of jurisprudence, the substantialization of reconsideration hearings is underpinned by three core elements: the Anwesenheit (procedural presence) of the process, the Dasein (functional immediacy) of the procedure, and the exclusivity of records.Anwesenheit means that reconsideration adjudicators and involved parties participate personally in the entire hearing process, prohibiting both absence and ex parte communications; Dasein requires that fact-finding, evidence evaluation, reasoning and issue resolution occur during the hearing process; the exclusivity of case records means that administrative reconsideration decisions be based solely on hearing-recorded facts and evidence, while un-presented facts cannot be used.

In the transfer of shares with uncalled capital contributions, the obligation to contribute capital transfers automatically to the transferee with the shares.Given capital maintenance and the mandatory nature of organizational law regarding capital contribution obligations, the transferor is not absolved of liability by transferring the shares, which is the approach more justified than requiring company consent for share transfers.The rationale of risk control establishes the legitimacy and institutional benefits of imposing liability on transferors.This rationale also dictates that such liability should be supplementary rather than joint and several.This framework reconciles capital maintenance with freedom of share transfer.Neither the transferor's bad faith nor the reliance of company creditors constitutes the basis for supplementary liability.These factors are immaterial in application.The transferor's supplementary liability implies that the transferor enjoys a defense of prior execution against the transferee, the specific issues of which may be resolved by reference to the rules governing the defenses available to a general guarantor.The transferor also has the right of recourse.In cases of multiple successive transfers, all prior transferors bear supplementary liability in reverse chronological order based on the same rationale of risk control.
   

Article 1194 of the Civil Code is a general provision on network infringement.The first sentence of this article is an incomplete primary norm, which needs to be applied in conjunction with other articles, especially Articles 1165 and 1167 of the Civil Code.The second sentence of this article is a reference norm, and the specific law it refers to constitutes a special law in conjunction with the general law in the first sentence.The first sentence of this article, together with Article 1165, forms the basis for the right to claim network infringement damages, with six essential elements: network users or network service providers, infringement committed through the use of the network, infringement of others' civil rights and interests, fault, damage, and causation; the first sentence of this article, together with Article 1167, forms the basis for the preventive right to claim compensation for network infringement, without requiring the existence of fault or damage.In terms of legal consequences, the infringed party may claim compensation for losses such as property infringement, personal infringement, and intellectual property infringement; for infringement of personality rights, the infringed party may also request the elimination of effects, restoration of reputation, and an apology; if the infringement continues, the infringed party may also claim cessation of infringement, removal of obstacles, and elimination of danger.

Judicial artificial intelligence, especially the birth of the Big Language Model and its possibility of application to judicial practice, seems to eliminate the space for legal methodology in the judicial decision.The fundamental principle of judicial artificial intelligence lies in the prediction (generation) of current data based on the statistical regularities of historical adjudication data, but the information processing of adjudication data is not equivalent to the judicial decision itself, nor is the calculation equivalent to reasoning or argumentation.From the perspective of “desirability”, as long as the nature of judicial decision-making as a kind of reason-giving activity is adhered to, legal methodology should not lose its space.From the perspective of “feasibility”, in the field of fact determination, on one hand, machine algorithms cannot properly construct the facts of the case from the evidence materials due to the limited real cognitive ability and non-response to evaluative space.On the other hand, in the field of legal application, machine algorithms cannot replace creative legal interpretation and its various methods, nor can they carry out real gap-filling and legal amendments.However, the application of corpus linguistics in legal interpretation shows that digital technology has indeed brought changes in the source of information and specific application patterns to legal methodology.In future, algorithms and methods should be mutually reinforced.

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.

Legislators, emphasizing the necessity of criminal law intervening in families to prevent abuse, have specifically established the crime of abuse targeting “family members”.However, this approach inevitably overlooks abuse outside the family.The Mu Linhan case reveals loopholes in the protection by the crime of abuse.In judicial practice, the scope of “family members” has been expanded to protect women abused outside the family, which nonetheless violates the principle of legality.Beneath this issue lies the problem of legislative unconstitutionality, manifested in two aspects: insufficient protection and unequal protection.Both “protecting the family” and “protecting women” are state obligations stipulated in the Constitution.They are often mistakenly perceived as conflicting, but in essence, they constitute a concurrence of fundamental rights.Therefore, in accordance with the Constitution, criminal law should establish a progressive structure to cover both intra-family and extra-family abuse.

Since Chinese Criminal Procedure Law lacks provisions governing litigation procedures for unit crimes, and Article 346 of the Interpretation of the Criminal Procedure Law—which permits units to “reference application” of criminal procedure clauses designed for natural persons—remains ambiguous in scope and boundaries, the protection of legitimate rights and interests of units in criminal proceedings is entirely dependent on those of natural persons.To clarify the legal status of units as subjects in criminal proceedings and maintain the balance between prosecution and defense in unit crime litigation, the Theory of Indirect Liability of Units should serve as the basis for constructing procedural rules for unit crimes.Building on this foundation, it is essential to explore the specificity of the unit defendant in safeguarding rights of units in criminal proceedings compared to natural persons.In accordance with these specificities, efforts must focus on defining evidentiary criteria for proving that units will incentivize criminal acts, developing interrogation methods tailored to units, reforming the system of Units' Representatives in Litigation, and enhancing the system of Units' Right to Defense.

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.

The issue of the legislation on AI currently involves great theoretical controversies.Due to the incomplete transition of legislative concepts, the limited and delayed response of laws to technological advancements, as well as the requirements for novelty and systematicity in unified legislation for emerging technological fields, the timing for formulating a unified “Artificial Intelligence Law” is not yet fully mature.The legislation of artificial intelligence should be based on the new objects subject to law and the corresponding methods followed by it.Thus,“deep learning algorithm” and “human-machine” relationship can be extracted as the two theoretical fulcrums of artificial intelligence law, and the two are closely linked and evolve simultaneously.The regulation of deep learning algorithms is more important in the field of AI than before.At present, the concepts of algorithm transparency, accountability and interpretability have not been well elaborated in a self-consistent theory, and thus it still needs the effective cracking of the algorithm “black box”.The evolving nature of human-machine relationships presents legal uncertainties due to technological advancements.However, when we dispel the illusion of AI's “self-awareness,” it becomes clear that human dominance should govern these interactions.Guided by three fundamental principles-dehumanization, human primacy and safety, the legal framework could be established through mechanisms like human-machine alignment protocols, trust-building frameworks and ethical guidelines.The legislation on AI puts forward urgent requirements for new ideological resources and thinking paradigms, among which the theories such as “computer as a social actor” and “actor network” are worth paying attention to for our reference.

The typification analysis of judicial documents about implicated offense is aimed at discovering the types of implicated relationships in judicial practice.Implicated offense involved multiple charges and a wide range.The phenomenon of confusion between implicated offense and other forms of crime's number (especially imaginative competition)was relatively common.Judicial interpretation remained an important measure to quell disputes over implicated offense.The type of “means-purpose relationships” accounted for the overwhelming majority, while the type of “cause-result relationships” was rare, which might be due to the misreading of traditional classification.In terms of specific types, there are not only traditional “type of pure implicated relationship”, but also “type of mixed implicated relationship”, and even “type of impure implicated relationship”.The existence of different types of implicated relationships indicated that implicated offense has evolved into an Miscellaneous Provisions, which is a unique feature of implicated offense in the perspective of China's criminal law.

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.

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.

According to the relevant provisions of the Civil Code, Article 17 of the Interpretation of the Guarantee System sets forth an innovative and comprehensive provision on the conditions of the guarantor's responsibility, the nature and scope of the responsibility under the circumstances of the subordinate invalidity of the guarantee contract, and the invalidity of the guarantee contract itself.However, there remain many doubtful issues to be discussed and clarified.Supplementary liability of the guarantor at fault has the homogeneity with the first execution of the right of defense so that the provisions of the latter can apply to the former; it should be permissible to appropriately exceed the upper limit of the guarantor's liability proportion when its degree of fault is significantly greater than that of the creditor, whereas in the case of a limited guarantee, the guarantor's liability proportion should be correspondingly reduced.If both the main contract and the guarantee contract are invalid, the rule of subordinate invalidity of the guarantee contract should be applied; where several guarantee contracts in a joint guarantee are invalid, the proportions of the guarantors' compensation liabilities shall not be cumulatively added, and, within an overall limitation, individual variations are permissible, while the form of liability among the guarantors remains unchanged.The application of rules on legal consequences of invalidity of guarantee contracts are subject to special cases in independent guarantees, guarantees of listed companies, guarantee contracts of an integral nature, and counter-guarantees and re-guarantees; may be applicable, applicable by reference, or inapplicable in an atypical guarantee contract; and, may be applicable by reference or inapplicable if there is an effectiveness defect other than invalidity in the main contract or the guarantee contract.

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.

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.

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.

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 general theory and judicial practice regard delivery as the effective publicity requirement for the bona fide acquisition of special movables.However, the publicity requirement excludes the simultaneous use of registration as a condition for bona fide acquisition, which in turn contradicts the purpose of registration confrontation.From the standpoint of delivery effectiveness, the method of representing property rights for special movables should be possession, with registration only affecting the transferee's behavior at the level of empirical facts.This, however, also sparks a debate on the legitimacy of choosing the method of property rights representation.For ships, the doctrine of intent is more adaptable to the timing arrangements for the transfer of ownership in standard contracts and bill of sale in ship trading practices.For aircraft, in addition to adapting to trading practices, international conventions also provide legitimacy for the doctrine of intent.Understanding the registration opposition under the doctrine of intent can be based on the doctrine of credibility, viewing it as a specific application of the credibility of registration, uniformly supported by the principle of reliance.

For a long time, conceptual jurisprudence has dominated the drafting, adjudication and academic study of the Anti-Unfair Competition Law.A shift in legal methodology is therefore needed toward an evaluative jurisprudence that is oriented by the purpose of each norm and grounded in substantive value judgments.The Anti-Unfair Competition Law is a branch of the Law of Tort.The inherent logic of market competition makes it, in its normative character, an evaluative regime.This is evident in several respects: the objective clause and the general clause of the law play a central role in application; most of its concepts are “typological”; and the law depends on evaluative application through analogy.Evaluative regime entails that without evaluation there can be no application of the law; the meaning of the law is realized only through evaluation.Evaluation is a dialogic procedural process: without deliberation there is no evaluation, and the falsification of negative evaluations is of decisive importance.The Anti-Unfair Competition Law should introduce a plurality of evaluative factors, uncover and articulate the meaning of the law through holistic evaluation, and on that basis strike a balance among competing interests.

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.

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.

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.

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.

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.

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.

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 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.

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 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.

《法学家》2025年第6期目录(总第213期)
主题研讨：人工智能时代的法学回应
司法人工智能时代仍有法学方法论的运用空间吗？ 雷 磊 (1)
人工智能立法的基本问题:算法规训及其场景中的人机关系 梅夏英 (16)
人工智能犯罪归责的行为主体论路径 吴贻森 (31)

专　论
论行政复议听证实质化 江国华 (45)
顾此与失彼:虐待罪的宪法检视 刘志鑫 (59)
反不正当竞争法的评价法学方法论 谢晓尧 (73)

视　点
未届出资期限股权转让中的责任分配 朱 虎 (89)
担保合同无效法律后果规则的体系阐释与适用展开——以《担保制度解释》第17条为重心 刘慕瑾 (105)
牵连关系类型的司法认定——基于裁判文书的类型化分析 王彦强 (118)

争　鸣
论特殊动产善意取得——形式主义下的归谬与意思主义下的重构 潘重阳 (133)
单位刑事诉讼权益保护研究 刘沛泉 (148)
过失监管型渎职犯罪的归责路径 崔 涵 (162)

评　注
《民法典》第1194条(网络侵权的一般规定)评注 李依怡 (176)