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1.
王先林 《Frontiers of Law in China》2008,3(4):540-555
Defining relevant markets is the foundation of establishing main antimonopoly regimes and the key issue in enforcing antimonopoly
law, which often reflects the leniency or strictness of enforcement. In the process of defining relevant product market, the
main factors to be considered include physical function and use purpose of product, product price, consumers’ preference and
substitutable possibility of product supply. In defining relevant geographic market, the main consideration involves transportation
cost and product characteristics, product price, consumers’ preference and barriers to market access. On the occasion of forthcoming
enforcement of the Antimonopoly Law of China, the enforcement authorities should draw up a specific rule of the definition of relevant markets.
Wang Xianlin got his Ph.D from Law School of Renmin University of China (2001) and is a Fulbright visiting scholar at Law
School of George Washington University (2007–2008). Prof. Wang is a director of Economic Law Institute and a doctoral tutor
in Shanghai Jiao Tong University School of Law. He was once a member of the advisory committee of antimonopoly legislation
of the Legal Affairs Office of the State Council of P.R.C. and is a standing director of the Economic Law Academy affiliated
with China Law Society. His research focuses on competition law and intellectual property law. He has ten books published
individually or cooperatively, including the monograph, such as the Intellectual Property and Antimonopoly Law—Studies on antimonopoly issues of abuse of intellectual property rights and WTO competition policy and Chinese antimonopoly legislation and abuse of intellectual property rights and its regulation. Moreover, he has released over 100 papers in academic journals. In recent years, his research is focused on China’s antimonopoly
legislation and the abuse of IPRs of multinational companies in China. 相似文献
2.
As a developing country, China has been pressured by the developed countries to increase the levels of intellectual property
(IP) protection and to adopt IP rules that even go beyond the minimum international standards. IP regimes are established
to promote advances in science and culture by rewarding creation and invention. However, developing countries do not necessarily
appropriately share the benefits from the harmonization of IP protection standards over the world. Fortunately, not every
developed country or international organization is concerned only with its own interest when evaluating the tendency of international
IP protection policies. In fact, they have made many studies or findings in favor of the concerns and interests of developing
countries. This paper investigates the conflicts between IP rights and human rights, as well as the validity of IP laws under
constitutional arguments, with the purpose of providing new strategic policy arguments in China’s future amendments to IP
laws, and related negotiations with developed countries.
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Translated from Faxue Yanjiu 法学研究 (Law Research), 2005, (6): 105–115 相似文献
3.
4.
International documents like the Declaration of the Rights of the Child (1959) and the Convention on the Rights of the Child (1989) propose that in mediating on children issues, the best interests of the child should be the primary consideration.
In China, the Constitution and the Law on the Protection of Minors have already set out the terms in principle for the protection of minors, however, it has not been defined in the Marriage Law (2001). In order to enforce the commitment of respecting and safeguarding human rights, the child’s best interest principle
should be established in marriage and family law, along with amending related provisions.
Chen Wei is a professor of law, and director of the Research Center for Foreign Family Law and Women Theories in the China
Southwest University of Political Science and Law. She is in the teachings of civil law, family law, law of succession, the
history of civil law and comparative family law for years. During 2003–2004, Prof. Chen, being a visiting scholar, studied
foreign family laws in the Faculty of Law, Sydney University. In academic field, she has published over 50 research articles
in China and abroad; and her monograph is Research on the Legislations of Marriage and Family Law of China (2000). Further, she has taken charge of editing over 10 books, for instance, A Comparative Study of Family Laws between the Mainland and Hong Kong, Macao and Taiwan of China (2002), A Comparative Study of Foreign Marriage and Family Law (2006) and A Comparative Study of Succession Laws among the Mainland, Hong Kong, Macao and Taiwan of China (2007). 相似文献
5.
夏吟兰 《Frontiers of Law in China》2009,4(2):280-292
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. 相似文献
6.
王利明 《Frontiers of Law in China》2009,4(3):325-342
Defective product recalling system is a new regime in modern civil law, characterized by its special functions to prevent
and eliminate the harms concerning consumers’ body and property due to potential defects of products. In legal nature, it
is necessary to define “recalling defective products” as the obligation rather than the liability of manufacturers or sellers,
so as to encourage both manufacturers and sellers to take effective remedies immediately upon defective products. Product
recalling is of two categories, i.e., active recalling and compulsory recalling, and the breach of such recalling obligation
will lead to a series of legal liabilities. Considering the importance of the recalling system and the economic development
of China, it is strongly proposed that China shall formulate the Law of Defective Product Recalling.
Wang Liming, Ph.D of Law, is currently a vice president of Renmin University of China and dean of the Law School. Prof. WANG
is also a member of the Law Committee of 10th and 11th National People’s Congress, vice president of China Law Society. Prof.
WANG is a leading expert in the drafting and formulating important civil laws in China, such as the Law of Real Rights of
PRC. His main research area is civil and commercial law. Quite a number of his monographs won national academic achievements
award, including but not limited to Study on Civil Law Regime (Renmin University of China Press, 2008), Study on General Principles
of Civil Law (Renmin University of China Press, 2003), Draft of Law of Real Rights and its Interpretation (China Legality
Press, 2001), etc. He also has 100 or so articles published in law journals home and abroad. 相似文献
7.
Deborah Cao 《International Journal for the Semiotics of Law》2011,24(3):351-367
There is yet to be any animal welfare or protection law for domestic animals in China, one of the few countries in the world
today that do not have such laws. However, in Chinese imperial law, there were legal provisions adopted more than a 1,000 years
ago for the care and treatment of domestic working animals. Furthermore, in traditional Chinese philosophy, animals were regarded
as constituent part of the organic whole of the cosmos by ancient Chinese philosophers who saw no strict delineation between
humans and non-human animals. Notwithstanding, the attitude and practice towards animals in ancient Chinese life was also
ambivalent and was predicated upon the practical utility of animals for the service of humans and society. Such practice can
be seen through the legal provisions in imperial China. This paper first discusses animal’s place in traditional Chinese philosophy
and then in Chinese imperial law. It raises the issue of the gap discernable from the philosophical thought on animals and
practice regarding animals in everyday life in China. The paper argues that given the gap in perception and attitude regarding
animals, law can play an important role that moral teaching has not been able to achieve. 相似文献
8.
贺小勇 《Frontiers of Law in China》2009,4(2):163-177
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). 相似文献
9.
本文对我国自解放以来调整民事关系的法律法规进行了述评 ,指出了现行有关物权法律法规的缺陷 ,提出在我国正在进行的物权立法中坚持对合法财产一体保护原则 ,实行物权变动与原因行为相区分的原则 ,从中国实际出发构建用益物权体系并完善担保物权制度。 相似文献
10.
Jingwen Zhu 《Frontiers of Law in China》2006,1(1):112-120
For wholly domestic cases, when there are no suitable domestic provisions and similar precedents, the courts in some countries
will directly incite relevant foreign legislations or precedents. While in China, never before had its judicature ever used
foreign laws or comparative law to handle non-foreign cases. However, in recent years, with the gradual opening of China’s
judicial area, its judicature also begin to use precedents of foreign and comparative laws. 相似文献
11.
12.
中国私法学在借鉴两大法系私法制度和私法学说时,在很大程度上接受了支撑两大法系私法的个人主义认识论。近年来,个人主义认识论得到中国私法学者的系统阐述,并产生了较为广泛的影响。然而,个人主义过分侧重强调对既有私权的静态享有和安全保护,忽视了私有权利的动态生成机制,进而忽视了私人社会生活和私法的合作面向,即私人之间共同合作创造的过程。受此影响,个人主义认识论不仅无力对现有私法制度作出系统合理的解释,而且很可能成为中国私法学在两大法系传统智慧之外构想更优替代方案的绊脚石。中国私法学有必要认真对待私人社会生活的合作面向,在认识论上从个人主义走向合作主义。 相似文献
13.
Anne Barron 《Law and Philosophy》2012,31(1):1-48
The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized
information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain
about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might
play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection
of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards
a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw
in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception
of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel
Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is
only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended
in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on
the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights
– and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public
domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the
possibility of a free culture. 相似文献
14.
Xinxin Wang 《Frontiers of Law in China》2006,1(2):281-299
The bankruptcy law is an integral part of the legal system of societies with market economy. After many years of preparation,
the draft of the new bankruptcy law in China was submitted to the Standing Committee of the National People’s Congress twice
and is waiting for the third approval to be enacted. Drawing on the experiences of other countries, the new bankruptcy law
tries to carry out the concepts of market economy, eliminate the residual influences of planned economy that existed in the
old law, protect lawful rights and interests of creditors and debtors, and maintain the order of socialist market economy.
This thesis analyzes and researches on the major and controversial issues that emerged during the legislation of the new bankruptcy
law from the aspects such as the principle of the legislation, criteria of bankruptcy, preservation or abolishment of policy-related
bankruptcy, protection of the employees’ rights and interests of bankrupt enterprises, the creditors’ committee system, the
trustee system, reorganization system to prevent bankruptcy, and the legal obligations of bankrupt, and so on. It also gives
a comprehensive introduction to the innovation and modification of the new bankruptcy law. 相似文献
15.
Jiahong He 《Frontiers of Law in China》2007,2(1):1-22
A study of the global tendencies of criminal justice will help us design a more scientific and rational pathway for the reformation
of existing criminal justice system of China. In the forthcoming several hundred years to come, the world’s criminal justice
is to take on ten tendencies, that is, the tendency toward unity, civilization, science, rule of law, human rights, justice,
efficiency, specialization, standardization and harmony.
__________
Translated from Yanshan Daxue Xuebao (Zhexue Shehui Kexueban) 燕山大学学报 (哲学社会科学版) (Journal of Yanshan University (Philosophy and Social Sciences Edition)), 2005, (1): 1–11 相似文献
16.
Wenxian Zhang 《Frontiers of Law in China》2006,1(4):471-485
Globalization of the economy, public affairs, human rights, environmental issues and laws indicate the developing tendency
of human beings and society, and this has a great influence on the third reform of Chinese law in many aspects. Upon its entrance
into the WTO, China carried out a large-scale clarification and amendment of its laws and regulations, and incorporated itself
into the global governance structure. This marks the beginning of the third legal reform in the country. This reform includes
the reform of the political and legal system, restructuring of the legal system, and evolution of the real meaning of law.
In the future development of Chinese law, the fundamental nature of modern, global and human civilization, and the legal profession
will penetrate much more into the whole Chinese law and its operation. 相似文献
17.
Elina Staikou 《International Journal for the Semiotics of Law》2010,23(3):283-298
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. 相似文献
18.
Zhuojun Wang 《Frontiers of Law in China》2007,2(3):335-352
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. 相似文献
19.
In China, the necessity for legislation on recycling economy (RE) first lies in the difference in the conceptions applied
to define it. Three schools in theory are prevailing at present: affirmative, negative, and replaceable. The paper insists
that RE is of unique implication for China. A practical need for legislation exists; however, those rational parts in both
negative and replaceable schools should be given full consideration. The necessity for RE legislation rests not only upon
requirements for social and economic development but also upon economic globalization and the internalization of environmental
protection. China’s RE legislation should learn from foreign countries, meet actual needs of the country, make sure to coordinate
with clean production law, and make recommendations and options for legislative modes, principles, and systems.
This paper is on the basis of Zhou Ke, Cao Jianqun, ”Necessity for Legislation on China’s Recycling Economy and Regulatory
Framework Analysis”, Xinhua Digest (half monthly), Vol. 11, 2005(in Chinese) 相似文献
20.
Kirsty Duncanson 《International Journal for the Semiotics of Law》2011,24(4):385-404
In its enunciation of “We the people,” the Constitution of the United States of America becomes a constitution of the flesh
as it simultaneously invokes a constitution, a nation and a people. Correspondingly, its amendments as a list of rights pertaining
to sex and race discrimination, and freedoms of bodily movement and action, assert the Constitution’s authority through the
evocation of “natural” human bodies. In this article, I explore the way in which a sovereignty of the United States’ Constitution
is realised in the particularlised bodies of its citizens. The fundamental and foundational laws of the United States, and the narratives
and myths used to interpret them, are in part rendered legitimate by the Constitution’s embodiment, which extends from its
physical manifestation in written documents into the flesh of its citizens. In order to make this argument, I turn to the
film The Matrix (1999), the success of which relies on an investment in bodies and the United States’ Constitution as matter through its interwoven narrative themes of human slavery and emancipation, reality and computer-generated simulation. At
the same time, The Matrix extends its ideological play into the bodies of its audience, who experience the film’s thrillingly sensorial fantasies of
constitutional rights while enjoying its affective special effects. Thus, the sovereign authority of United States constitutional
law is experienced as “natural” through the phenomenological experience of cinema. 相似文献