Thoughts on the theories and practice of chinese private international law

“The parties can only choose facultative legal norms,” “the parties of all foreign-related civil and commercial cases may agree to choose Chinese law as the applicable law governing their legal relationship,” and “the applicable law to the contract chosen by the parties shall not avoid the mandatory provisions of Chinese law” —such viewpoints that have substantial influence among the theorists and in the judicial practices of Chinese private international law are actually based on misunderstandings of Chinese private international law. It is a task of the private international law community of China to eliminate such misunderstandings, hence facilitating the healthy development of Chinese private international law.     

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.     

Democracy, rule of law and human rights protection under gradually developed constitutionalism

With the shifting of the economic pattern and the developing of administrative law, the modern constitutionalism of China has adopted a progressive development process. Over 20 years, the development of democracy, the rule of law and the human rights protection clearly illustrate this point. For the gradually developing constitutionalism, the theory of limited rational is a theoretical basis, the stability of society is a social basis, the changing economic system is a economic basis, and Confucianism is a cultural basis. Constitutionalism of China should continue to go in such an active, steady and gradual way. Wang Zhuojun, Professor and Director of Administrative Affairs of Soochow University (till now) and as a visiting scholar in the Department of Government & Politics, University of Maryland, USA (1996.1–1997.1), whose research focuses on culture, politics and science of law. So far, his publications are “The Political System in the Perspective of Culture”, “A History of Epistemology”, “A Study of the External Economy of China’s Universities”, and his translations include “Introduction to Culture and Anthropology”, “Challenge to Culture from Science and Technology”, etc. Moreover, He has presided several research projects sponsored by The Ministry of Science and Technology of China and the Education Department of Jiangsu Province, China.     

Law,Genre and the Voice of the Friend

The article attempts to think friendship in its relation to law and justice and provides some arguments for the importance of this concept in Derrida’s ethical, legal and political philosophy. It draws on early texts such as Of grammatology and reads them in conjunction with later texts such as The animal that therefore I am. The relation of friendship to law and justice is explored by means of Derrida’s notion of “degenerescence” understood as the necessity or law of indeterminateness that cuts across, both limiting and de-limiting, all laws, types and generic partitions, for instance, juridical (natural and positive right), humanistic (human and animal), anthropological (sexual difference), philosophical (physis and nomos). Drawing on Derrida’s readings of “sexual difference” in Heidegger and the latter’s evocation of “the voice of the friend” in Being and time, the article addresses the theme of Geschlecht and articulates the exigency to think sexual difference beyond duality together with the exigency to rethink law and right otherwise than on the ground of nativity and “natural fact” and in terms of what Derrida calls “a friendship prior to friendships” at the origin of all law and socius.     

Evasion in the conflict of laws and its possible solution in China

Evasion in private international law differs from fraud of law in domestic law, which has been generally agreed upon in academic and judicial circles. However, in China’s private international law, the theories on “evasion,” are very confusing and quite a few Chinese academicians appear more declined to accept it as natural phenomenon in conflict of laws. Similarly, both Chinese judges and legislators take a conservative approach towards it. By comparative and historical methods, the definition of evasion is to be clarified in this paper. Also, it is to argue that evasion differs from fraud of law in the context of domestic law and it is necessary to elucidate it.     

“Where's Whitey?”: Black Mass, ethnic criminality, and the problem of the informant

The essay is an interdisciplinary examination of the popular American tradition of organized-crime narratives based on the testimony of criminal informants. Primarily, it examines the most prominent current instance of this tradition: a book entitled Black Mass: The Irish Mob, the FBI, and a Devil's Deal (2000), depicting the recent scandal involving James “Whitey” Bulger. While this book is often received as a contemporary exposé of the ethical perils of informant use in combating organized crime, it actually reiterates the chronic interpretive pitfalls of more traditional “gangland” informant narratives like Murder, Inc. (1951) or Peter Maas's The Valachi Papers (1968). Black Mass's adoption of a classical “noir” literary form, meanwhile, imports certain traditional assumptions that often make these popular narratives immune to recent academic revisions: assumptions about the “Fordist” character of criminal organization, about the uncanny but invisible skills of modern ethnic gangsters, and about the relationship of the state to organized crime. Portions of this paper were presented at a conference hosted by the University of Chicago in May 2004: “Constructing the Current: Theorizing Media in a New Millennium”.     

Interdisciplinary research on international relations theory and international law in China over the past 10 years

From the origin, there has been a strong connection between international relations and international law. In the development of the history of different academic subjects, the research on international relations and international law are interdependently promoting each other. As a result, the realization of interdisciplinary research on international legal theory and the study of international law is inevitable. As a matter of fact, even though the interdisciplinary research of the two subjects has been separated for almost half a century, the need for the development of the subject and the changing world political and economical status give them a new chance for reunification. Recently, the interdisciplinary research on international relations theory and international law by the Western academic is becoming the order of the day, which has become the latest shining point of the recent development of the two subjects, which is even regarded as the new revolution of international relations theory and the study of international law. In this context, the past ten years is a period of emergence of Chinese international relations and the interdisciplinary research of international law. In the past ten years, some scholars have overcome “the difficulty of interdisciplinary research,” “the prejudice within the subject” and “the gap among different subjects,” and made pioneering research in the field of “systematic connection” and “issues in overlapping field.” Moreover, they gradually make the interdisciplinary research to be a popular method and a common recognition. Based on the current studies, interdisciplinary research will have a broad future in the fields such as “the interchange of concepts,” “the exchange of method,” and “the mutual assistance of materials,” which will provide scholars in this area with a broad space for research.     

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).     

中国传统法在法的现代化进程中的几个问题的研究

本文重在探讨中国传统法在现代社会中是否存在着向现代化转折的可能 ,传统法中的一些因子是否可以成为现代法文化发达的动力并丰富现代法文化的内容。笔者认为要论述传统法的现代化问题 ,首先应该对法的现代化标准有一个基本的认识 ,要区别法的现代化、法律现代化、法制现代化的不同含义。其次 ,要尽可能客观地阐述传统法的原貌 ,分析传统法产生的文化背景。在此基础上对传统法的影响进行理论分析。笔者的结论是 :中国传统法在现代社会中并没有像有些学者所“预设”的“规律”那样消亡 ,相反传统法在现实中积极的和消极的影响随处可见。只有了解传统、理解传统 ,才能正确地解释传统、更新传统。因此在法的现代化中 ,我们应该注意的是自觉、主动 ,而不是回避或被动地改造传统法。     

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.     

The New Insolvency Law and Governance of Corporate Legal Person

Start of the insolvency proceedings influences the two basic problems of corporate governance: restriction about the “soft budget” of corporation and “information asymmetry” between the interior and exterior person. In fact, the insolvency law is a mechanism of the potential exterior supervision. In the insolvency proceedings, most of the information is open to the creditor and to the superintendent, who is liable for protecting the interest of the creditor. The key problems of corporate governance are transparency and information disclosure. The insolvency law provides the power of supervision to the creditor when corporation insolvency. Of importance is that power is conducted by collectivity and supported by judicatory and professional organization. In June 2004, the finance committee submitted the new draft of the insolvency law to the standing committee of the national people’s congress. There are many articles about corporate governance. These articles are generally divided into two kinds, one is restriction on conduct of the supervisors in the period of the insolvency proceedings, and the other is examination of the conduct before the start of the insolvency proceedings. Translated from Jurist Review, Vol. 2, 2005 (in Chinese)     

Trademarks as a System of Signs: A Semiotic Look at Trademark Law

This essay attempts to explore trademark law and the marks themselves from a semiotic viewpoint to provide a deeper understanding to (trademark) law as a system of signs. Although the language of trademark law may suggest slightly different meanings, for the purpose of this essay “trademark” will refer to an area of law (unless otherwise indicated) and “mark” will refer to the individual sign. The first part of this essay will provide a brief overview of semiotics. Second, it will outline a general look at trademark law as set forth in the Lanham Act. The third section is a semiotic approach to provide a deeper understanding of trademark law. Finally, the essay will analyze a seminal trademark case whilst using semiotics to address legal meaning within the case. Semiotics teaches that no absolute meaning can be found. This essay, then, attempts to secure at least one particular meaning of the Qualitex case and what it means in trademark law today.     

罗马法与近现代中国民法——历史与未来

近现代中国民法系统移植和继受了大陆法系民法的原则、概念、制度和体系,并借此逐步抛弃其落后的封建成分,在先进的罗马法自然法精神、私权观念和私法精神的指引下不断实现自身的现代化。从某种程度上说,近现代中国民法的形成与发展是建立在对罗马法精神的传承和对罗马私法内容和体系的继受与发展的基础之上的,罗马法是近现代中国民法之源。未来中国民法应在把握与罗马法的源与流关系的基础上有选择的继受,实现对罗马法的理性发展。     

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

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.     

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.     

Trading Signs: Semiotic Practices in Law and Medicine

Lawyers write, blog and are otherwise producers of words; they structure public life through legal discourse and integrate all issues that reinforce legal reasoning. Even if one is inclined not to justify the power of their words in the context of a democratic theory, one is hardly able to challenge its public acceptance. But semiotic analyses harden the question whether these emperors wear nothing but robes. That attitude intensifies where medicine becomes increasingly relevant for legal discourse, as becomes clear where for instance US political viewpoints bring bioethical issues to the Courts. One major theme in today’s medicine pertains to identity in its psychological, philosophical and social dimensions. Identity thus becomes a groundbreaking semiotic issue in law and medicine; both discourses are particular important to the otherness of the other. A US criminal law case interests here (Harrington v. State of Iowa, 2003; cited as: 659N.W.2d 509). The case is decided with “information about what the person has stored in his brain”. A chain of signs is involved: from “brain-function” to “brain-storage” via “brain-scan” to “brain-fingerprint”, for which the case became famous. A long series of signs and meanings belong here to intertwined discourses. Central is a particular sign in each discourse: “brain” means brain scan, and “fingerprint” means law! The two display trading mechanisms, which determine the otherness of the other and the self! The chain of signs in the Harrington case shows inter-disciplinarity in law and inter-discursivity among law and medicine. The trading itself underlines the semiotic dimensions in cyberspace, in particular the semiotics of the virtual (Hayles, Kurzweil) and their effects on legal discourse.     

中国封建法再认识

封建法被人们看作是中国传统法律的典型特征。但是,这一概念在中西法律文化中的内涵是有极大差异的。英国封建法孕育的有限王权和身份关系为现代社会提供了法治资源,至今仍有影响;而以集权和家族为特征的中国封建法则与法治社会相去甚远。理清封建法在传统中国与英国的社会中的不同内涵及其与法治社会的源流关系,有助于我们深入认识中国传统法律精神。     

论罗马法复兴对近代西方法治理念的奠定

罗马法的复兴运动打破了西方中世纪法律思想的沉寂 ,使神学垄断下的欧洲再一次激起了对古典法律及其观念的探索 ,为西方近代法治思想的孕育奠定了基础。     

物权法中的若干行政法问题

Many elements of administrative law are related to real right law. The regulations on public interests concern the base of interference of public powers. The content of administrative private law is associated with the phenomenon of “Flucht in das Privatrecht”. The control of the property by the based self-ruling community is connected with indirect state administration. The rights of the property by citizens are subjective public rights. Special sacrifice and die junktimklausel are preconditions of compensation for expropriation. The register of real estate shows the interference of public right. The real right law makes rules for administrative public domain is a special example. Liang Fengyun is a juris doctor, who is a judge of the Supreme Court of China. Her individual monographs include Selected Application of Administrative Litigation Judgment and Studies on Public Domain and her co-authored works are Principles of Normal Administrative Law, Seek for Good Circulation of Administrative Litigation System, Better the Administrative Litigation System of China. Moreover, her over 40 essays also appeared in Chinese academic journals.