我国刑事赔偿制度之改革

In reference to the United Nations International Covenant on Civil and Political Rights (hereinafter referred to “the Covenants”), the state compensation system of China in criminal justice shall be reformed as such: Compensation for a miscarriage of justice should not be determined by the results of first instance or second instance, but no guilty through retrial in the final trial upon finding of new evidences. If policemen, prosecutors and judiciaries take lawful measures, causing loss to the suspected due to arrest, detention or other enforcement in the criminal proceedings, the suspected should not get the state compensation for that even if he is decided no guilty in the final trial. If the suspected is cooped up illegally, he should get the state compensation even if being decided guilty finally. The measures of search and seizure should be included in coercive measures, hence differentiating the lawful search and seizure and the unlawful infringement of the property rights. Yang Yuguan, Professor of the Procedure Law Institute in China University of Political Science and Law, whose research mainly covers procedure law and human rights law. He wrote many books and essays, for instance, “Computer and Crime” (1986), “On Plea Bargaining” (1986), “Basic Education in Prisons in China” (1995), “The United Nations Crime Prevention and Criminal Justice Policy” (1996), “On the Ratification and Implementation of the International Covenant on Civil and Political Rights” (2000), “On Hearsay” (2001), “On Exclusionary Rule” (2002), “Human Rights Law: Study On International Covenant on Civil and Political Right” (2003), “The International Criminal Court: Idea, reality and Prospective” (2007), “Death Penalty Control with Procedural Law” (2006), “On Due Process of Law and Human Rights Protection” (2005). He was once a researcher fellow of Ministry of Justice of China, a member of the Crime Prevention Branch of the United Nations Office at Vienna, and an editor-in-chief in some books, such as “The United Nations Criminal Justice Norms and Standards”, “The United Nations Human Rights Treaty Bodies and their Comments”, “A Study On UN Convention of Anti-corruption”.     

试论跨国公司的社会责任

As for international direct investment, the transnational corporations are playing a leading role in the fields of international trade, international investment and international intellectual property. In theory and reality, this authors analyze the rationale of the social responsibilities taken by transnational corporations, the main problems in the social responsibilities of transnational corporations and the legislative status, and put forward the functions of the social responsibilities of transnational corporations in promotion of the legal construction of socialist market economy, the reform of the corporate governance and the development of transnational corporations in China. Wang Chuanli, Professor and Doctoral Supervisor of China University of Political Science and Law, Vice-chairman of China Society of International Economic Law, and Vice-chairman of Research Institute of WTO Law (China Law Society), also Arbitrator of China International Economic & Trade Arbitration Commission and Beijing Arbitration Commission. Her main publications are “The Legal Effectiveness of Foreign Economic Contracts”, “International Trade Law of Sales of Goods”, “International Protection of Intellectual Property Rights” and “International Trade Law Government Control on Business”. Moreover, she has published over ten influential discourses on international economic law. In addition, her ongoing research projects include WTO Agriculture Agreement and the Rules of International Agri-products Trade, WTO and International Core labor Standards, and the Role of Judicial Independence of European Court of Justice to Promote the Integration of Europe.     

Reform of lawsuit system and revision of filing conditions

Currently the Civil Procedure Law stipulates rather “high conditions” for lawsuits and the reason is that in the institutional design, we have equated the conditions of adjudicating the merits with those of lawsuits and the initiation of lawsuits. The trial of conditions of adjudicating the merits are usually conducted after the beginning of lawsuits, while in China it is carried out before the beginning of lawsuits, and thus the related procedures have become a kind of “pre-lawsuit procedures”, and theoretical and institutional confusions and contradictions arise. This article is of the opinion that filing conditions should be separated from those of adjudicating the merits, and the trial of the latter should be incorporated into the proceedings. A “dual” trial structure should be constructed, that is, the trial of conditions for adjudicating the merits goes parallel with that of merit disputes. In the attempt to improve civil procedures, attention should be given to the institutionalization of conditions of adjudicating the merits, which should be reasonably designed and integrated into relevant systems. When reforming the lawsuit system, we should also adjust the courts’ trial organs. We recommend not setting up any case-filing or appeal divisions and removing the existing “separation of case-filing and trial”. __________ Translated from Law Study, No. 6, 2004     

Credit card fraud under Chinese criminal law

Credit card fraud is a new type of fraud amended into the Criminal Law of China in 1997. The “credit card” under credit card fraud is interpreted as a very board concept, which includes debit card and virtually all electronic payment cards used in ordinary payment, credit loan, transfer and settlement of account, cash deposit and withdrawal. Therefore, it is necessary for the legislature to revise “credit card” under this special fraud into “electronic payment card,” and “credit card fraud” into “electronic payment card fraud,” which will be understood easily and precisely. “Use” and “fraudulent use” of credit card under this fraud is defined as ordinary use of credit card, including withdrawal cash with authentic or forged credit card from ATMs. It is unreasonable to define “malicious overdraft” as a form of credit card fraud under the Chinese Criminal Law. In the future amendment, this kind of criminal conduct shall be separated as independent named as “malicious overdraft” or “abuse of credit card” under the Criminal Law with less stiff statutory punishment than that of credit card fraud. Besides, under the Chinese Criminal Law, stealing credit card and using it is held as “theft,” which is neither reasonable nor logical. Therefore, it should be revised in the future criminal law.     

中美知识产权"刑事门槛"争端的法律问题

In April 2007, the United States filed an application with the DSB of WTO with respect to the issue of criminal law protection mechanism of intellectual property rights in China, which was the first dispute accepted by the DSB arising out of the issue of criminal law protection mechanism of intellectual property rights. The core of the dispute of the case is how to interpret the “commercial scale” under Article 61 of the TRIPS Agreement as the “criminal threshold”. It can be seen from the practice of the interpretation of the DSB that while each WTO member is entitled to interpret the term “commercial scale”, the boundary of interpretation is subject to Article 61 of the TRIPS Agreement. It is unnecessary for China to lower her “criminal threshold”, since China’s criminal law protection in intellectual property policy is in compliance with the TRIPS Agreement. In fact, the United States should change from lowering the criminal threshold to how to strengthen the criminal crackdown on piracy under the circumstance of lowering the price of genuine works when imposing pressure on China in the protection of intellectual property rights. He Xiaoyong, Ph.D, is presently a professor in the Faculty of International Law in the University of East China University of Political Science and Law. He studied as a visiting scholar at the University of San Francisco (2001). He was awarded a Chevening Scholarship in 2002 sponsored by British Council and Shanghai Outstanding Teacher Award in 2004. He has released more than 80 academic articles on WTO issues and international financial law, and his monographs include Legal Aspects on Supervision under Financial Globalization (2002), International Trade Dispute Settlement and China’s Perspective: Under the WTO framework (2006) and new issues under the WTO (2008).     

对中国登记离婚制度的评价与反思

The Regulations on Marriage Registration promulgated in 2003 advocates the ideas for autonomy of private law, such as “autonomy of individual will”, “self responsibility” and “self-determination right”, ushering a new era of Chinese divorce registration system from supervision by employed institution to self responsibility, however, such issues also result in excessive freedom and insufficient restriction. In setting up the divorce registration system, therefore, it shall also be considered for the protection of disadvantaged parties and minor children so as to ensure the fairness and justice of law and the harmony and stability of society. Xia Yinlan, LL.D, is a professor and doctoral tutor and the dean of the School of International Studies in China University of Political Science and Law. She is also the vice chairman of Beijing Women’s Federation, the member of the executive committee of China Women’s Federation, the director of Marriage and Family Legal Research Institution under the supervision of China Law Society, the vice director of China Association of Marriage and Family Studies, the standing director of the International Family Law Society, the vice director of Beijing Women’s Law Research Institution. Her major academic interest covers women’s human rights, heritage law and family law. She was once a Fulbright visiting scholar in the United States and a legal expert in Macau Legal Affair Bureau. She’s one of the experts in drafting the P.R.C. Law on the Protection Of Women’s Rights (revised), the Marriage Law of P.R.C. (revised) and the Regulation of Marriage Registration of P.R.C., and she is still active in participating in the legislation activities of China. Prof. Xia wrote or co-wrote more than 20 monographs and textbooks, including American Modern Family and Marriage System, the Freedom and Restriction of Divorce, the Basic Framework Research on Domestic Violence Law, etc. In Chinese and foreign academic journals, more than 60 articles have been released, such as the study on property segmentation in divorce in China, the study on family violence under the framework of women’s rights, the comparison on the factual marriage in Macau and the Mainland of China.     

中国行政执法困境的个案解读

Due to lack of effective, and adequate communication on the standpoint of the government and the attitudes of civil society in legislative process, this has led to tension between the government and the general public. Within the context of law enforcement, the government sticks to “problem-based strategies” and “campaign-based enforcement”, who believe in the power of coercive force. As a way out of the dilemma in law enforcement, it is required that in the process of rule-making, the government should communicate effectively with the civil society in the institutionalized system, focusing on learning, reflection, and strategic adjustment. Wang Xixin, Professor at Law School of Peking University. Since 1999, Prof. Wang is a working member of China Administrative Legislative Research Group an academic team advising China’s Legal Affairs Working Commission on administrative law reforms. Since 2001, he is a major drafter for China’s Administrative Procedure Act. Since 2002, he is a research consultant for the NPC Standing Committee General Office. Since 2003, he is a research fellow of the China Law Center of Yale Law School. Since 2005, he is a Vice-chairman of Beijing Administrative Law Society. In academia, Prof. Wang is focused on administrative procedure, public participation, rulemaking and comparative administrative studies, whose publications include books, such as “Administrative Procedure: A Theoretic and Institutional Inquiry” (Beijing, 2007) and “Public Participation and Administrative Process” (Beijing, 2007) and some 30 articles for journals published in China and America. Moreover, Prof. Wang often submits papers and gives lectures in academic forums, including Columbia Law School, Yale Law School, the Woodrow Wilson Center for Int’l Scholarship, and Carnige Endowment for Int’l Peace.     

现代国际法的人本化发展趋势

Humanization is not only a new concept and value-oriented, but also an ever-increasing positive phenomena in international law. Contemporary international law has been contributing to the establishment and improvement of global peace and development order for the co-existence among States on the one hand, and making endeavors to the formation and maintenance of humanizing order, which is both “individual-oriented” and “humankind-oriented”. Such a humanizing phenomenon undoubtedly represents the advanced trend of international law, enriches its contents, updates some of its classic branches and impacts on the basic principle of reciprocity on which it is created and developed. However, the humanization of international law could not have taken shape without common accords among States by means of either treaties or customary rules; and without cooperation among States, the humanistic value of international law can never become true no matter how sublime it is. Zeng Lingliang, Ph.D, is presently a dean and professor in Faculty of Law of the University of Macau, a Cheung Kong awardee and Jean Monnet Chair of European Union Law in Wuhan University, and one of the first three individuals nominated by the Chinese government on the list of panelists in the WTO. Prof. Zeng has a lot of articles published on the WTO issues, EU law and international law, and his representative monographs, for instance, European Communities and Modern International Law (Wuhan University Press, 1992) and its revised edition European Union and Modern International Law (Zhiyi Press, 1994), Law of World Trade Organization (Wuhan University Press, 1996), International Law and China in the Early 21st Century (Wuhan University Press, 2005) and Essentials of EU Law—In the new perspective of the treaty on a Constitution for Europe (Wuhan University Press, 2007).     

犯罪人的本质属性辨析

The difference between criminals and non-criminals has always been a topic for criminal psychologists. It is easy to describe the features of offences by their social and legal attributes, while it is still difficult to find any significant difference of the features from ontological perspective of criminals. To get to know criminals from the point of personality, we may discover the essential features of criminals. However, while acknowledging the role of personality, the variables such as situations, moods and social relationships can not be neglected. Meanwhile, it is also necessary to study the personality mechanism of criminals. Zhang Shaogang, an associate professor in Communication University of China, also acts as compere in the program of the “Jinri Shuofa” (legal report) and “Dajia Kanfa” (all get close to the law). Since 2006, he became a Ph.D candidate at China University of Political Science and Law, majoring in the direction of criminal psychology. His publications include “TV Planning Outline”, “On the New Planning of TV”, “Television Programs and Program Planning”. The large-scale live broadcasts called “20 Hours of Life” referring to three cross-strait districts, presided by him, achieved the first prize of China News Awards in the category of live televisions.     

东京审判与南京大屠杀

Nanjing massacre is undoubtedly an outstanding event that indicates the savage acts of the Japanese soldiers during World War II, and its cruelty shocked the whole world. But up to now, there are still some people in Japan denying this period of history. The Trial by the International Military Tribunal for the Far East (“Tokyo International Tribunal”) puts the monstrous crimes committed by the Japanese militarists in record, nails their violence in Nanjing to the history’s pillar of shame for ever, and declares publicly to the later generations that such violence shall never be forgot. Zhu Wenqi, professor of international law, works at Law School of China Renmin University (since 2002 till now). He got Ph.D in University of Paris II and finished his post-doctor research programs in Europe and USA, and started to work in the China Foreign Ministry as Diplomat and also Legal Advisor (1988). And then, he worked in the International Criminal Tribunal for the Former Yugoslavia as legal assistant of the judges, Legal Advisor and Appeals Counsel of the Officer of the Prosecutor of the Tribunal (1994–2002).     

试论"超越法律"的企业社会责任

The corporate social responsibility “beyond law” is the responsibility of enterprises beyond the mandatory obligations by force of law but in line with social values and expectations. Indeed, the legal norms on such kind of responsibility are “soft law”, which mainly incorporate social values and expectations in corporate business behaviors and governance structure, so as to realize corporate “self-regulation”. By protecting the substantive and procedural rights of stakeholders and improving their negotiation power, the “soft law” aims at realizing the spontaneous confrontation and balance of the market, and the corporate reputation mechanism and the functions of NGOs adds much to the performance of corporate social responsibility. He Zhaodan, Economics Doctor of Sun Yat-Sen University, mostly focuses on Law and Economics. She has published six research articles in the academic journals of China.     

The perspective of “justice” of international law in the global context

After the Cold War and the quick development of globalization, non-state acts by international organizations, transnational corporations and nongovernmental organizations (NGOs), etc., are becoming more active. Global issues with regard to, inter alia, environment, human rights, terrorism are constantly emerging, which bring great challenge to the Westphalia System that is based on state sovereignty and centered on the national state. At the same time, the values, which include “individualism” and “global justice,” are constantly casting impact on international legal system. Doubtlessly, in the current context of international relations, “justice among states” is still the reasonable positioning of the value of modern international law. However, making “individualism” and “global justice” compatible and modifying “justice among states” is an inevitable trend. At the same time, the rule brought about by the modification on the value of justice must be handled properly.     

Discussion: wrestling with the beast

Criminology is but one of what Abbott refers to as “sociologies archipelago of particular subject matters.” I discuss the papers in this issue of Crime, Law and Social Change as “fractals” of disciplines that contribute to knowledge in criminology.     

罪刑法定视域中的刑法适用解释

The judicial interpretation of criminal law should be an application interpretation to individual cases that is guided by judges and participated by the prosecutor and the accused, for which the judicial judgment should be combined with the application of criminal law of specific cases, and the criminal precedents should be as a carrier. The Supreme People’s Court should change from the previous practices of issuing normative and abstract interpretation to the dual approaches of the interpretation of criminal law application through direct creation and indirect acknowledgement. Liang Genlin, Professor and Vice Dean of Law School of Peking University and as a visiting professor of University of Tuebingen (2001–2002). His main research focuses on criminal law and criminal policy, and his important publications include “On the Structure of Punishment”, “Liang Genlin’s Review on Criminal Policy, Volume I, Criminal Policy: Standpoint and Category”, “Liang Genlin’s Review on Criminal Policy, Volume II, the Arm of the Law: Expand and Limit”, “Liang Genlin’s Review on Criminal Policy, Volume III, Criminal Sanction: Manner and Choice”. Besides, he has also published over 40 discourses on criminal law and criminal policy since 1996.     

How important are interview methods and questionnaire designs in research on self-reported juvenile delinquency? An experimental comparison of Internet vs paper-and-pencil questionnaires and different definitions of the reference period

There has been relatively little change over recent decades in the methods used in research on self-reported delinquency. Face-to-face interviews and self-administered interviews in the classroom are still the predominant alternatives envisaged. New methods have been brought into the picture by recent computer technology, the Internet, and an increasing availability of computer equipment and Internet access in schools. In the autumn of 2004, a controlled experiment was conducted with 1,203 students in Lausanne (Switzerland), where “paper-and-pencil” questionnaires were compared with computer-assisted interviews through the Internet. The experiment included a test of two different definitions of the (same) reference period. After the introductory question (“Did you ever...”), students were asked how many times they had done it (or experienced it), if ever, “over the last 12 months” or “since the October 2003 vacation”. Few significant differences were found between the results obtained by the two methods and for the two definitions of the reference period, in the answers concerning victimisation, self-reported delinquency, drug use, failure to respond (missing data). Students were found to be more motivated to respond through the Internet, take less time for filling out the questionnaire, and were apparently more confident of privacy, while the school principals were less reluctant to allow classes to be interviewed through the Internet. The Internet method also involves considerable cost reductions, which is a critical advantage if self-reported delinquency surveys are to become a routinely applied method of evaluation, particularly so in countries with limited resources. On balance, the Internet may be instrumental in making research on self-reported delinquency far more feasible in situations where limited resources so far have prevented its implementation.

A generalization of the obligation to prevent: From genocide convention to racial discrimination convention

The decision of the International Court of Justice in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) highlights states’ obligations under the Convention, especially the obligation to prevent. When it comes to the case concerning the International Convention on Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”), the decision of the Court indicating provisional measures seemingly purported to generalize its jurisprudence in the Genocide Case. By elaborating this kind of new jurisprudence, the Court echoed to the responsibility to protect, as well as to Article 48 and Article 54 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles of State Responsibility”). It appears that each State Party should have an obligation to intervene in the coming genocide incidence, perhaps as well as in the coming racial discrimination cases. Nevertheless it is unclear in what manner a state could implement it effectively.     

Transcending the dilemma of “public interest”

This paper discusses the evolution and recent trends in the development of the constitutional concept of “public use” in the case-law history of the United States starting from the source of US government’s taking powers and the original meaning of the Taking Clause in the Fifth Amendment of the United States Constitution. Since the concepts of “public use” and “public interest” are extremely difficult to be defined, it is very hard for the US courts to develop a relevant operative criterion. In the United States, the safeguard of “public interest” in taking mainly lies legislative rather than judicial control. In a democratic society, legislative judgment is highly respected by the courts and the entire takeovers that conform to public use as determined by the Congress are usually deemed constitutional. In this sense, the Congress is a “public interest machine”, which automatically generates laws and decisions on behalf of public interests through the democratic representative process. The paper eventually suggests that China should divert its attention from the theoretical definition of “public interest” to institutional construction, and should make the National and Local People’s Congresses and their standing committees to play major roles in deciding taking and compensation schemes. __________ Translated from Zhongguo Faxue 中国法学 (China Law), 2005, (5): 36–45     

Bouncing boundaries and breaking boundaries

New bio-technologies are currently forcing medicine to cross boundaries that might have seemed insuperable sometime ago. Specifically, they now help to prolong human life beyond its natural process and to maintain it almost indefinitely. Consequently, death takes on new meanings. For some it simply appears like an eventuality that can be postponed while, for others, death become synonymous to extended suffering, to dehumanization and to anguish. This apprehension gives rise to a wave of compassion for the dying person which is being translated into a new discourse around the notions of “quality of life” and “dying with dignity”. In this movement, the question of assisted suicide resurfaces. Through an extensive study of the Sue Rodriguez case in the Supreme Court of Canada (1993), the author shows that this particular case forced the Canadian society to rethink some of its long-standing socio-legal boundaries. First, the current social debate on assisted suicide poses new demands on Criminal Law, particularly on the judicial tradition since the courts are presently ill-equipped to respond to cases which demand to give content to new “human rights” that do not yet have a legal substance. Second, the Rodriguez case revealed the emergence, on the judicial and political scenes, of certain community groups that restructures the traditional power relations linked to the social regulation of assisted suicide. Finally, the study shows a change in the boundaries surrounding the accepted use of Criminal Law toward an administrative (risk management) rather than punitive use. This revised version was published online in August 2006 with corrections to the Cover Date.