The Jurist

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  • 2011 Issue 6
    Published: 15 December 2011
      
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  • On Law Theory of Public Interest——An Analysis Based on the Need Spill Theory
    LIU Tai-Gang
    2011(6): 1-14.
    Abstract ( ) Download PDF ( )   Knowledge map   Save
    The need spill theory pursues simple and easy operating standards for ascertaining public interest. In itsopinion, public interest in statute could only be ascertained by comparison, which is similar to the concept of lightness or heaviness. There are neither isolated public interest without comparison nor absolute public interestwithout changing. Public interest is one party's need with overwhelming justice advantage in the conflict betweendifferent lawful needs,which should be protected by public authority. To define the public interest, three criteriashould be met: the first one is interest conflict criterion, which is used to ascertain whether the conflict of interestis unavoidable, the second is legal solution criterion to ascertain if public interest law is the best solution for theconflict of interest, and the third is value comparison criterion to ascertain if the need under government protec-tion has overwhelming justice advantage in the conflict of needs. The legislative strategy on public interest shouldfocus on procedure and criteria instead of listing the scopes of public interest.
  • The Theory of the Nature of Harming Society：Its Fate in Contemporary China
    ZHAO Bing-Zhi, CHEN Zhi-Jun
    2011(6): 15-26.
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    Some Chinese scholars propose that we should get rid of the concept of nature of harming society from thetheory of China's criminal law aiming at de-soviet-russianization. It is necessary to completely survey the role ofthe theory of nature of harming society in the process of constructing the rule of law in China' s contemporarycriminal matters ．The nature of harming society is the fundamental concept of social sciences （especially of lawscience）．The nature of harming society is the formal criterion of criminal legislation, the indispensable scale of criminal justice and the common theory of China and other countries．In addition, the nature of harming society can't bear the weight of the success or failure of China's rule of law in criminal matters. It is not only infeasiblebut also impossible to get rid of the theory of nature of harming society from criminal law science.
  • Criminal Law Fiction：An Analysis of Its Function and Application Rules
    SU Cai-Xia
    2011(6): 27-37.
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    The characteristics of criminal law fiction includes presumptiveness of the fact, intention, irrevocability andlegality. Criminal law fiction has the positive functions of promoting the development of the criminal law, realizingcertain legislative policy or value, resolving the difficulty to make a final decision, simplifying our thinking wayand condensing the legislation. All these functions indicate that criminal law fiction is one of the important leg-islative techniques. In the meantime, criminal law fiction might excessively expand the legislative authority or im-moderately expand its epitaxy where applicable, resulting into the risk of undermining the substantive justice. Inorder to avoid the risk, with regard to the legislation, the application of criminal law fiction should adhere to theprinciple of equivalence of infringements on the legal interests and the necessity of applying the criminal law fic-tion. In term of judicial practice, the stipulations about criminal law fiction shall be applied in the light of therules of interpretation of considering the will of the legal norms and the equivalence of applying the article of crim-inal law fiction and the reference to general statutes.
  • How to Define Illegal Financing——
    A Critique of Legal Interpretation of Illegal Financing by Supreme Court
    PENG Bing
    2011(6): 38-53.
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    For severe restriction in financing regulation, illegal financings are very popular in China, and have madeheavy damages. Though the Supreme Court published a Legal Interpretation on the subject this year, there aresome defaults in it. First of all, it doesn't define the illegal financing clearly ．No matter which form the illegalfinancing adopts, its nature is investment. To define the illegal financing needs to find a passive investment andpublic offering involved in it. But the Legal Interpretation has flaws in these two factors ．Also, it is too strict inproviding public reselling of securities and is wrong in providing illegal selling funds．
  • An Analysis of Wrongful Birth on the Compensation Liability
    ZHANG Hong
    2011(6): 54-65.
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    Wrongful birth case is arising from the disputes of compensation claimed by parents who have to give birth tobabies with disabilities caused by wrongful medical acts ．China should apply tort laws to settle this type of dis-pute. In those cases, parents' right of choice to practice eugenics is infringed, resulting in costs of upbringingand medical treatment expenses for babies with disabilities, as well as tremendous psychological pains for them tosuffer. According to current laws of China, both the property damage and moral damage of the disabled children's parents could be compensated．
  • On the Quasi-personality Construction of Fetus
    LIU Zhao-Cheng
    2011(6): 66-81.
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    With the change of the personality value in modem society, the acceptance of the personality value of fetusbecomes the requirement of the mainstream social value，According to this tendency，civil law takes many meth-ods to protect the fetus ．However, restricted by the civil law system which was composed of the person afterbirth, the protection of fetus can not coordinate with the system of civil law. Because of the life, the body, the health, fetus has got the personality dignity and is endowed with quasi-personality, which in turn gives the fetusthe partial capacity to enjoy the right as well as the elements of personality. Therefore，protections of fetus is jus-tified dogmatically and is integrated into the system of civil law. However, because of the inability of capacity foract, fetus needs a guardian as deputy to take juristic act.
  • On the Nature and Signification of “Investment” in IIAs
    ZHANG Qing-Lin
    2011(6): 82-93.
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    With an examination of property's meaning in human rights law and a clarification of the definition of invest-ment in International Investment Agreement （IIAs），the article claims that the “investment” in IIAs is the prop-erty in human rights law. According to the logic of market economy, private property is naturally protected ade-quately by State. It's one of State's basic duties, and it's also the precondition to normally develop and orderlyproceed for market economy ．Meanwhile, protecting foreigner's property is also within the coverage of the inter-national law. Based on this, the unceasingly expanding definition of the investment in IIAs in recent years is thereflection of expanding the scope of property in international investment practice, embodying foreign property pro-tection under International Law in IIAs and revealing the value orientation of International Investment Law to pro-tect foreign investment in IIAs.
  • Recognition and Enforcement of International Investment Arbitration Award in China
    XIAO Fang
    2011(6): 94-107.
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    Regarding ICSID arbitration awards, while China need not adopt a special legislation on the implementationof the ICSID Convention like some other countries, it is proposed that the Chinese Supreme Court shall issue somejudicial interpretations on how Chinese courts shall implement the ICSID Convention, and neither the trial super-vision procedure nor the reservation of public policy in Chinese domestic law can constitute standards that Chinesecourts can adopt to review ICSID arbitration awards when they are applied to recognize and enforce them. Regard-ing other kinds of international investment arbitration awards, it is proposed that China shall resolve the presentproblem that the New York Convention is not applicable to the recognition and enforcement of these kinds of arbi-tration awards in China, and that Chinese courts don’ t take as excuse the reservation of public policy to refuserecognizing and enforcing the awards. As it is widely accepted by the international community that a country canrefuse to recognize and enforce international investment arbitration awards on the basis of state immunity, Chinashould adopt legislation on state immunity soon.
  • From Lawyer-centered Defense Conception to Minimum Client-centered Defense Conception——
    A Perspective from the Conflicts of Defense Briefs between the Defense Attorney and the Defendant Hims elf
    WU Ji-Kui
    2011(6): 108-123.
    Abstract ( ) Download PDF ( )   Knowledge map   Save
    For a long time, the lawyer-centered defense conception has been in a dominant position in all countries.However, in recent years, this conception had been harshly criticized in some countries and the client-centereddefense conception becomes more and more popular in these countries ．In essence, the choice of defense concep-tion is determined by the methods of protecting the accused interests and the priority of the accused interests, thelawyers’ interests and the societal interests and other social factors. The great changes in the methods of protect-ing the accused interests, the priority of different interests and the over-commercialization of lawyering make itcritical for China to transform from the lawyer-centered to the client-centered defense conception.
  • Empirical Studies on Nominalization of Criminal Court Trials
    HE Jia-Hong
    2011(6): 124-136.
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    The court trial should be the central stage in criminal proceedings．However, it is nominal in China now.The nominalization of cnminal court trials shows in the nominalization of producing evidence, the nominalizationof impeaching evidence, the nominalization of evaluating evidence, and the nominalization of court-makingjudgments. The causes of the nominalization include the procedure model of assembly line with investigation cen-teredness, the judges' assessment model of cases based on files, and the administrative decision making modelwith the principle of the lower level subordinating to the higher level. For changing the nominal trials to substan-tial trials, it is a practical road to establish the principle of immediateness and oral, and to reform the people' sjurors system.
  • Study on the Association Litigation System of Claiming for Damages
    LIU Xue-Zai
    2011(6): 137-156.
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    In order to solve the group disputes in the modem society properly, Germany, Italy, Austria, France, Swe-den, Denmark, Norway，Taiwan of China and many other countries or regions make provisions of damages litiga-tion filed by a association, besides the traditional injunction litigation. Different from the injunction litigation,when an association files the damages action, there will be more complex problems which involve the standing tofile a suit, the action aim and function, the funds for litigation and so on. As for contemporary China, there areinsufficient knowledge accumulation of building the association litigation system nowadays，and in the same time,there exists the confusion about how to fulfill the principle of “dormant legislation, judicial agitation” in practice.Therefore, it is necessary to make provisions of the injunction litigation and damages litigation separately on thebasis of a thorough research in the future.
  • Jurisdictional Error As One of the Cause of Action for Retrial Shouldn’t Be Deleted
    TANG Wei-Jian
    2011(6): 157-162.
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    Jurisdiction system is becoming more and more important in civil procedure. The newly revised The CivilProcedure Law in 2007 lists the jurisdictional error as one of the cause of action for retrial, which is of high-pro-file progressive significance. Practice has proved that this provision is highly valuable to strengthen the judicialprocedure justice, overcome local protectionism, and level the competing jurisdiction of chaos. Now the questionsput forward theoretically, such as “adequate relief”，“of little importance”，“high cost”，“abuse of right of liti-gation” and “no compliance of form and standard”cannot stand the scrutiny. Therefore, we should insist on thisprovision in this amendment of civil procedural law.
  • On the Nature of Choice of Court Agreements and Related Issues
    JIAO Yan
    2011(6): 163-175.
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    Choice of court agreements consist of both contractual and procedural elements, from which the issue of thenature of those agreements arises. The nature of procedure which limits the autonomy of contractual parties tendsto be set aside, while the nature of contract which supports the party autonomy tends to be adopted. The require-ment of “real connections” as provided in our law will not carry out the purpose of protecting public interest, andprivate interest either. The issue of the applicable law of choice of court agreements should be resolved followingthe general principle of conflict of laws in foreign contracts. The free system of international trade needs to be se-cured by a free dispute-resolution system.