CHINA LAW DEVELOPMENT REPORT 2012： PROFESSIONALIZATION OF CHINA＇S LEGAL WORKERS

“China Law Development Report 2012： Professionalization of China ‘s Legal Workers” publishing conference was held on 4 May 2013, in Beijing. This is the fourth report on China Law Development published by Renmin University of China, following Report 2007 on database and indicators, Report 2010 on law-making, and Report 2011 on law-enforcement, Report 2012 focuses on the following aspects according to professor ZHU Jingwen, chief editor of the report.     

THE LEGAL REGULATION ON BOARD SIZE IN CHINA: RETROSPECTION AND ANALYSIS

The issue of the board size includes sub-issues such as the number of directors and the structure of the board. Most management scholars believe that the number of directors, the proportion of different types of directors, and the power distribution between the board and managers, are important factors affecting the cost and performance of the board. The board size is also an interesting legal issue because it is subject to the company law. The existing Company Law of the People’s Republic of China sets upper and lower limits both on joint stock companies and limited companies. Such a strict legislative model is unique in the world. According to classical political theory, the recognition of free people is the most fundamental origin of the legitimacy of law. Therefore, the companies themselves are supposed to discover corporate governance pattern themselves. Is it necessary for legislators to set a limit on the number of directors? If so, should such limit be or permissive? What are the theoretical basis, the purpose, and the real effects of such a norm? This article attempts to answer the questions raised above.     

LEGAL PROTECTION FOR MINORITY SHAREHOLDERS IN CHINA

In view of the increasingly severe exploitation of minority shareholders and the existence of double agency costs in China,it is necessary to provide strong protection for minority shareholders in China in order to build an investor-friendly system.By enabling minority shareholders to prevent misconducts of majority shareholders and managers,legal system has made significant progress in the past twenty years.     

FINANCIAL REPRESSION,FINANCIAL LEGAL GOVERNANCE AND ECONOMIC GROWTH IN CHINA

Financial repression usually exists in developing countries. By nature, it is like a hidden tax and can liquidate public debt of the government effectively. The policy of financial repression will likely hinder financial deepening, negatively influence the building-up of efficient and inclusive financial systems, and eventually harm sustainable economic growth in the long run. The fine legal infrastructure plays an important role in financial deepening and development. In China the major measures to reduce financial repression and improve the legal governance in finance are the following: the strict respect and protection of private property rights, including the obligation rights of the common depositors against the banks and the shareholders’ rights of the common investors, the respect and protection of the contract freedom and contract enforcement, the sequential openness of financial market entry and introduction of the principle of free and equal competition in the financial market, and the improvement of the judicial system to increase the adaptability of Chinese law, such as the strengthening of judicial independence and the establishment of case law.     

LEGAL REGULATION ON EXECUTIVES' PAY OF STATE-OWNED ENTERPRISES IN CHINA: EXPERIENCE,DEMONSTRATION AND PATH SELECTION

The source of the struggling legal regulation of executives'pay in state-owned enterprises is that the executives of most state-owned enterprises are not selected from the personnel market but are appointed by the administrative agencies,which gives government departments in charge sufficient legal premises to regulate their pay externally.However,the strict broad-brush administrative regulations and policies intensified the irrelevance between executives' pay and their business performance.It is necessary to classify the way and the extent to regulate executives' pay in state-owned enterprises according to its different nature and function.It is also necessary to re-modify the strict control of executives' pay policy on competitive state-owned enterprises.To achieve selection from the human resources market,we have to improve the market-based mechanism of pay contractual arrangements and implementation between the enterprise and the executives,and then ultimately achieve a high relevancy between the executives' pay and the performance of management.The role of law is to guide,ensure and enhance this correlation.     

THE SPECIALIZATION OF JUSTICE ORGANS AND PROFESSIONALIZATION OF JUSTICE PERSONNEL IN CHINESE JUVENILE CRIMINAL CASES

Juvenile criminal cases should be investigated, prosecuted and judged by specialized organs and full-time personnel China should follow international criminal judicial criteria and implement the relevant laws, such as the Chinese Criminal Procedure Law and the Law on Protection of Minors in China, to promote the specialization of justice organs and the professionalization of justice personnel involved in juvenile criminal cases.     

THE LEGAL STATUS OF SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME

Sovereignty-disputed islands have special effect on maritime delimitations, whereas positive international law has no regulation on such matters. The legal status of sovereignty-disputed islands on maritime delimitation fall into three categories: full status, partial status and zero status. Full and partial status suggest the cases in which the sovereignty of the islands can be decided un-ambiguously in legal terms, while zero status means the circumstances to which islands under sovereignty dispute are not clearly subject to legal adjudication. Partial and zero status are commonly seen in international cases. The willingness of the disputed parties to a considerable extent defines the relevance of the legal status. Natural circumstances of islands affect not only the nature of the disputed islands and their legal status, but also the willingness of parties greatly. Geographic position of islands may lead to different legal status and affect the willingness of parties. The principle of equity is supposed to play an important role in the determination of legal status of disputed islands. In the case of the Diaoyu Islands for instance, if sovereignty issue can be decided in legal terms, then some extent of partial or full status will take place in the maritime delimitation of East China Sea; if sovereignty issue cannot be decided in legal terms, then only zero status can be granted. “Putting aside disputes and developing jointly” should not be treated as the preferred option and should be transited to certain real dispute resolution such as delimitation agreements or judicial judgments.     

A LEGAL ANALYSIS OF THE PROVISIONS OF VOLUME CONTRACT UNDER ROTTERDAM RULES

Volume contract as a new regime was introduced into the Rotterdam Rules by the proposal of the U.S. Delegation, which has pros and cons in terms of its inclusion. We shall admit that, since the early form of service contract has been successfully applied in the transportation trade in the U.S., this regime indeed has its vitality. The author hereunder focuses on the inclusion of volume contract in the Rotterdam Rules, and introduces the history of the advent of service contract in the U.S. and then the advantages of the service contract of its application. Furthermore, the author analyzes the relevant provisions regarding volume contract in the Rotterdam Rules, as well as some critiques with respect to the concept of volume contract and provisions accordingly in the rules.     

宪法基本权利的法律限制问题 以中国近代制宪史为中心

<正> 现代国家一般均在其宪法上明文肯定基本权利的存在及其价值,但人民基本权利的实现并非是毫无限制的。20世纪以来的各国宪法往往也会或多或少地规定基本权利的法律限制,这是权利内涵复杂化的结果,与社会经济的发展息息相关。"如何能在宪法的最高理念及拘束力的影响下,使基本权利的‘实现’及其‘限制性’的问题,能在法律制度内尽可能完善地运作",实现二者的平衡,这是宪法学上的重大问题之一。