A reflection on the taxi reform in China: Innovation vs. Tradition

In contrast to the hostility shown in some other countries towards one of the most important examples of a sharing economy service, namely car hailing, China has always kept an open-minded attitude to this innovative Internet business model. After having been tolerant of unlicensed operations for years, China reformed the taxi industry by legalising car hailing in 2016. However, this process of reform was heavily affected by the political pressure generated by the drivers of traditional taxis. Following this reform, the taxi industry in China has been separated into two independent markets: one for traditional taxis and another for car hailing services. The Chinese experience provides a unique opportunity to study the sharing economy. This article comprises of a full evaluation of the abovementioned reform, with a specific focus on a number of characteristics specific to the taxi industry. We observed that quantity control of vehicles is still necessary in the Internet era due to imperfect competition and information asymmetries. Though the taxi reform in China has in some regards been beneficial, it has also had the unfortunate effect of preventing the taxi industry from taking full advantage of the benefits of the sharing economy. Consequently, we propose that the various levels of Chinese government should first establish a level playing field for traditional taxis and car hailing, and second, devise a mechanism to closely monitor the quantity of vehicles in the taxi market.     

China's new regulatory regime tailored for the sharing economy: The case of Uber under Chinese local government regulation in comparison to the EU,US, and the UK

Although Uber's arrival in China has resulted in disruptive competition for incumbent taxi companies, it offers an attractive alternative in China's supply-demand-imbalanced urban passenger transport system. China's regulatory regime for Uber has evolved in three stages: from the regulatory vacuum prior to 2015 to its official legalization in 2015–2016, and the enactment of numerous local regulations in 2016, with specific and more demanding requirements for Uber. This policy is a part of the Chinese approach to the gradual liberalization of the urban passenger transport market. Policymakers should consider ‘fair competition’ as the guiding principle to balance the interests of sharing firms and incumbent service providers, as well as between different sharing firms. The core value of this principle lies in the benefits it provides for consumers and the way it engenders a pro-competitive market environment. The labor protection arrangements for sharing firms’ laborers should be more flexible and diversified. In order to recognize whether an Uber-Driver is an employee or independent contractor, a new standard taking into account a range of factors should be established through collective negotiations between the participants of the sharing economy, and dialogues between members of the judiciary, academics, and the policymakers. Further, consumer protection law and personal data protection provisions should apply when sharing firms misuse their distinctive algorithmic management model to compete unfairly to the detriment of consumers and other users. Ex ante regulatory measures designed to protect the personal data of users should be introduced for deployment in the context of the sharing economy. When enforcing these rules, a balance should be struck ensuring free data flow that is essential to sharing firms’ innovation and competition, and the need to ensure the level of data security required to underpin a well-functioning sharing society.     

Funds sharing regulation in the context of the sharing economy: Understanding the logic of China's P2P lending regulation

“Sharing economy” is an umbrella term that encompasses a wide range of digital platform-based activities that includes P2P lending and other forms of internet-based lending. The core aim of the sharing economy is to leverage the utilization of idle capacity. P2P lending can not only be used to leverage small amounts of money on the lender's side, but also be used to promote financial democracy and inclusion both on the lender and borrower's sides. P2P lending regulation, therefore, should place an emphasis on the utilization of dead money and promotion of financial democracy. This article scrutinizes the regulation of P2P lending in China. The existing regulatory system for P2P lending in China is built upon rules and regulations that have been designed solely with traditional brokers in mind. The article contends that the rigid rules placed on lending platforms limited their ability to maintain their roles as brokers and, in turn, heavily endangered the commercial sustainability of P2P platforms, thereby harming the sharing economy's openness and inclusivity. Additionally, the article argues that the fact that there is no limit on the amount a lender can invest poses a threat to the notions of leveraging idle money and financial inclusivity. The closed-ended P2P lending regime in China would cause some chilling effects to financial innovation in the P2P lending industry, and in a wider sense, the rising FinTech sector. Regulators in China need to cope with these challenges in a flexible but pragmatic manner, and particularly make use of the benefits the sharing economy may bring to the Chinese economy more broadly.     

To share is fair: The changing face of China's fair use doctrine in the sharing economy and beyond

Copyrighted works are greatly entwined with the concept of the sharing economy because of their status as informational public goods. Unlike commercial sharing models that address tangible goods such as bikes and houses, the sharing of which is limited by their physical nature, sharing models for intangible copyrighted works such as Google Books and live game webcasting must account for the comparatively unfettered ability for these to be shared. Accordingly, these models are more focused on exploiting such works to their full commercial potential. However, these sharing models are to a large extent based on the unauthorised exploitation of copyrighted works and will be unworkable if the related copyright issues cannot be solved. The interest that copyright owners have in exclusivity must thus be balanced with the public's interest in further exploitation of copyrighted works. Article 22 of the Copyright Law of China outlines an exhaustive list of copyright exceptions; such a restrictive list is incompatible with the sharing economy. The Chinese courts have realised this problem and have gone beyond the law in their judgments, taking a cue from their US counterparts. However, many of these decisions appear to be inconsistent with one another.To address the aforementioned problems, this paper examines the latest proposed amendment to the Copyright Law of China and proposes several legislative and judicial actions that could help promote the sharing economy. At the legislative level, enacting legislation based on a refined open-ended fair use model is necessary to promote the development of the sharing economy. At the judicial level, Chinese courts should employ the concept of transformative use to correctly interpret legislation based on the proposed open-ended model. With transformative use as the cornerstone of copyright policy, the public gains the freedom to share others’ works, participate in the innovation process, and create works with new value. Moreover, authors would retain an incentive to create works under such a legal regime because market substitution will not occur if a work is used for a different expressive purpose than that for which the work was originally created. Thus, a balance can be achieved between promoting the sharing economy and protecting the exclusivity of copyright in China.     

The challenges of applying turnover threshold to the sharing economy for control of concentrations between undertakings in China

The existing notification threshold for Chinese control of concentrations between undertakings is a turnover threshold, complemented by a market share threshold. The business model adopted by platform enterprises in the sharing economy, where services are provided free and subsidies are given to the platform's basic users, make it very hard for platform enterprises to produce notable turnover for a long period of time; therefore, the turnover threshold is unlikely to be satisfied in the context of concentrations. On the other hand, it is also not appropriate to apply the traditional methodology of constitutionality analysis and the SSNIP (Small but Significant and Non-Transitory Increase in Price) test to define the relevant market for the sharing economy, which is characterized by a two-sided market and cross-group network externalities. The size-of-transaction threshold reflects the importance of the number of basic users to the market power possessed by platform enterprise and has the same advantages of transparency and certainty. Therefore, legislation can be used to introduce the size-of-transaction threshold to Chinese control of concentrations between undertakings in addition to the traditional turnover threshold.     

Tripartite perspective on the copyright-sharing economy in China

Internet and digital technologies have facilitated copyright sharing in an unprecedented way, creating significant tensions between the free flow of information and the exclusive nature of intellectual property. Copyright owners, users, and online platforms are the three major players in the copyright system. These stakeholders and their relations form the main structure of the copyright-sharing economy. Using China as an example, this paper provides a tripartite perspective on the copyright ecology based on three categories of sharing, namely unauthorized sharing, altruistic sharing, and freemium sharing. The line between copyright owners, users, and platforms has been blurred by rapidly changing technologies and market forces. By examining the strategies and practices of these parties, this paper illustrates the opportunities and challenges for China's copyright industry and digital economy. The paper concludes that under the shadow of the law, a sustainable copyright-sharing model must carefully align the interests of businesses and individual users.     

China's campaign-style Internet finance governance: Causes,effects, and lessons learned for new information-based approaches to governance,

China's Internet companies and citizens are now world leaders in developing and using the Internet and related information technologies for financial transactions. Accordingly, it is important that China becomes a world leader in identifying challenges posed by Internet finance, and providing law and governance solutions to address these challenges. While the Internet and its associated technologies are now globally available, a core question is whether, and to what extent, regulatory challenges and opportunities are common across different jurisdictions, or whether they reflect local circumstances. In short, an interesting question is what can the world learn from China as it takes the lead in addressing Internet finance challenges, and what can China learn from the world as it seeks to do so?This article first identifies the landscape of China's burgeoning Internet finance market, including key technologies and services and government and nongovernment players. The article then turns to key regulatory challenges, with a focus on factors especially significant in China. The article then examines the “top down” “campaign style” approach to regulation, which is China government's initial response to emerging challenges. Following an analysis of the campaign, some suggestions are then made for future possible governance strategies. We explain how emerging “information” based and experiment-based approaches to governance are drawing on both global and Chinese experiences to harness the capabilities of the Internet and the collective energies of Internet finance enterprises and users to advance the regulation of the China Internet finance system in a way that is conducive to the public interest.     

Reflections on the legal features of the socialist market economy in China

China’s socialist market economy is a market economy co-existing with a large public sector of the economy, affected by the State as a policymaker, a regulator and an important actor along with private ones; general interests in principle prevail over individual ones. A major role of the law is of providing the tools for administrative leadership and efficient macro-control. Legal and policy documents concur in indicating a model for the developing Chinese legal system: not as Western-style “rule of law” (r.o.l.); more and better socialist laws; effective supervision at all levels; intense macro-control over private economy; more efficient, law-abiding administration and legal institutions. The governing authorities are at different levels, according to the size/impact of each specific business, and each of them has or may have a say beyond the law, so implementing full macro- and micro-control on the market at various levels, through a substantial number of “policy checks” at appropriate junctions or in blank areas of the law. Differentiated “modes” of the law could be the results of a coordinated absorption within the socialist frame of values, mechanisms, norms, formants hailing from different sources.     

Destructive sharing economy: A passage from status to contract

On the surface, the sharing economy only enables users to make the transactions of under-utilized resources over their two-sided platforms. An in-depth exploration of its sudden success reveals three distinctive features of this new business model, namely web search engine, proliferation of smart handhelds and user-generated reputation feedback mechanisms. All of these technological innovations not only inflict destructive changes to our social structure, but also lead to difficulties in an automatic inclusion of the sharing economy into the current regulatory framework. Two changes have raised particular attention. First, sharing platforms are capable of building a democratized private trust mechanism, in addition to the traditional government-monopolized public licensing system. Second, the vertical disintegration feature of the sharing economy considerably blurs the borderline between business and consumers, and between employers and employees. For the purpose of establishing a comprehensive regulatory framework for all online and offline activities, it is necessary to differentiate the sharing economy into those with offline competitors and those without offline competitors. With regard to the former, regulators are encouraged to embrace the sharing economy and meanwhile deregulate offline competitors. In relation to the latter, a three-condition analytical framework is proposed in order to strike a balance between promoting innovation and protecting the existing rights of others.     

Online platforms and pricing: Adapting abuse of dominance assessments to the economic reality of free products

Online platforms, which are at the forefront of today's economy, are subject to intensive competition law enforcement. However, the platform business model presents challenges for the application of competition law. Most notably, they appear to offer consumers a great number of their products for free. The explanation for most of these supposedly free products is offered by two-sided market theory: consumers may not be paying, but the ‘other’ side of the market is. This other side of the market often consists of advertisers, which pay the platform for access to the consumers’ information (to target advertisements) and attention (to show the advertisements). As many of these platforms are now potentially dominant, they come within the scope of competition law's abuse of dominance provision, including the doctrines of predatory and excessive pricing. These price-based theories need to adapt to the often price-less platform business model in order to prevent competition authorities from making both type I and type II enforcement errors. At the same time, competition law enforcement needs to consider—and at times give priority to—other branches of law that address abusive behaviour concerning free products. Through the use of case studies, this article therefore suggests ways in which abuse of dominance assessments can take into account the economic reality of free products.     

Law and policy of platform economy in China

China is experiencing a phenomenal expansion of platform economy fuelled by the advancement of information and communication technologies. It has become a global frontrunner in many sectors, including commerce, finance, and entertainment. A comprehensive law and policy narrative, however, is largely absent from English academic literature. This paper seeks to fill this gap by analysing the dynamic relationship of industrial development, policy engagement and regulation construction in one of the prime sectors of platform economy: Electronic Commerce (E-commerce). China's E-commerce market rose to global dominance shortly after its origination in the mid-1990s. This paper holds that such an expeditious ascendency is nourished by carefully designed public policies. To implement these policies, also to redress information asymmetries and other pertinacious market failures, a tailored regulatory paradigm has been instigated. This regulatory paradigm manifests a new mode of polycentric, participatory, and collaborative governance that strives to balance interest disparities between various stakeholders. The dynamic relationship exemplified in China's E-commerce market would provide a valuable indication for administering other sectors of platform economy not only in China but also across other jurisdictions that openly embrace commercial innovations in the context of information technological transformation.     

论行政监管权与法治

行政监管制度在中国建立的十几年间,监管效果并不理想,市场经济和现代监管制度尚未完全建立,监管权力失灵已经开始显现,这种消极现象不可能通过市场经济自身的力量消除,必须遵循法治原则,通过法律对行政权力进行规制。     

The impact of China's 2016 Cyber Security Law on foreign technology firms,and on China's big data and Smart City dreams

Chinese officials are increasingly turning to a policy known as Informatisation, connecting industry online, to utilise technology to improve efficiency and tackle economic developmental problems in China. However, various recent laws have made foreign technology firms uneasy about perceptions of Rule of Law in China. Will these new laws, under China's stated policy of “Network Sovereignty” (“网络主权” “wangluo zhuquan”) affect China's ability to attract foreign technology firms, talent and importantly technology transfers? Will they slow China's technology and Smart City drive? This paper focuses on the question of whether international fears of China's new Cyber Security Law are justified. In Parts I and II, the paper analyses why China needs a cyber security regime. In Parts III and IV it examines the law itself.     

网络平台的公共性及其实现——以电商平台的法律规制为视角

网络平台是组织生产力的新型主体,在数字经济时代承担着维护网络市场秩序、保障用户权益的公共职能。网络平台对其用户,特别是对平台内经营者,具有强大的支配力和影响力,此种平台权力属于典型的私权力。网络平台行使私权力有助于减少平台内经营行为的负外部性,弥补政府规制能力的不足,但其私权力也容易遭到滥用。除了要借助市场竞争机制和传统私法规范约束平台私权力,还有必要引入公法原理及其价值要求,对平台私权力进行适度干预。网络平台制定和实施规则时,应遵循基本的程序正义和实体正义标准。法院应对平台滥用私权力的行为进行必要的司法审查。立法者应根据权责利相统一的原则,科学合理地设置平台责任。     

The US financial regulatory reform, causes of financial crisis and its enlightenment on China

Deficiency of the US financial regulation has stimulated the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The fundamental causes of the regulatory deficiency can be categorized as follows: excessively indebted consumption culture in a long term, permanently abolishing the regulation on financial derivatives by the US Commodity Futures Trading Commission, and the regulations before the reform not fitting for the fictitious economy. The operation of financial products is like to fly a kite. The financial product is the kite, governmental adjustment is the string, market regulation is the wind, national culture and legislature and judicature are the environment. Those coordinated elements can guarantee a healthy financial market. To construct an effective financial regulatory system in China, it is needed to make culture with Chinese characteristics, advance the coordinated development of governmental and market regulation, and promote financial legislations and related implementation.     

Banking in the cloud: Part 1 – banks' use of cloud services

This paper looks at EU banks' use of public cloud computing services. It is based primarily on anonymised interviews with banks, cloud providers, advisers, and financial services regulators. The findings are presented in three parts. Part 1 explores the extent to which banks operating in the EU, including global banks, use public cloud computing services. It describes how banks are using cloud computing and the key drivers for doing so (such as time to market), as well as real and perceived barriers (such as misconceptions about cloud and financial services regulation), including cultural and technical/commercial aspects. It summarises how banks have approached the cloud and how cloud providers have approached the banking sector.Part 2 of this paper will cover the main legal and regulatory issues that may affect banks' use of cloud services, including how the regulation of outsourcing applies to banks' use of cloud services. Part 3 will look at the key contractual issues that arise between banks and cloud service providers, including data protection requirements, termination, service changes, and liability.All three parts of the paper can be accessed via Computer Law and Security Review's page on ScienceDirect at: http://www.sciencedirect.com/science/journal/02673649?sdc=2. The full list of sources is available via the same link and will be printed alongside the third part of the paper.     

Characteristics of cybercrimes: evidence from Chinese judgment documents

ABSTRACT

China has witnessed a rapid growth in internet use alongside an unprecedented increase in cybercrimes. Although studies have suggested that there are many factors that may contribute to the growing number of cybercrimes, such as the widespread use of online gaming, the low average income of internet users, and an increased access to IT skills, systematic analyses of actual convictions are rare. As the level of domestic cybercriminal activities increases rapidly, there is a growing call for empirical studies on cybercrime in China.

Through the extraction of data from China Judgements Online, the newly released Chinese judgements service, this study examines the basic characteristics of cybercrimes in China by analysing 448 sentencing documents that cover four types of computer crimes: online frauds, real asset theft, virtual asset theft, and stolen accounts. We analyse cybercrime cases from the perspective of the underground economy, focusing on the roles that cybercriminals play in the value chains of the online underground market; more specifically, what kind of products and services are enabled through cyber theft, and how those products and services are integrated as components of the underground economy.     

公司登记公告与公示法律制度研究

公司登记公告与公示制度在市场经济条件下具有极其重要的意义,一方面它可以实现国家对公司的监督管理,另一方面它能够保证交易安全和社会经济秩序的稳定。但是,我国的公司登记公告与公示制度却存在着很多问题,公告主体不统一、公示方式不健全、公告与公示不能产生应有的对抗力和公信力等。健全和完善我国公司登记公告和公示制度是保证市场经济健康发展的必要条件。     

顺风车今春遇“逆风”

2020年春季的顺风车市场,因新冠肺炎疫情影响而变得与往年格外不同。从交通运输部目前公布的数据来看,顺风车第一季度市场形势难以乐观。"整个2月份,出租汽车(包括网约车)接单量、运输量下降85%。"3月6日,交通运输部副部长刘小明在国务院联防联控机制举行的新闻发布会上介绍。     

非常的夫妻财产制问题研究

非常的夫妻财产制是相对于普通的夫妻财产制而言的一种在特殊的情况下适用的财产制度,在世界许多国家的婚姻家庭法中都有规定。我国由于有关夫妻财产制的立法的不完善性,因此,在婚姻法中没有这项制度的规定。鉴于市场经济条件下夫妻财产关系与社会交易安全的密切联系,本文在借鉴世界三个有代表性的国家的立法的基础上,对我国设立非常的夫妻财产制的必要性、可行性进行了探讨,并就此提出了有关的立法设想。