An experimental model of regulating the sharing economy in China: The case of online car hailing

Online car hailing represents a disruptive innovation model in the sharing economy and requires a new regulatory response. China's attempts to regulate this emerging industry can be considered highly experimental model. To relieve the pressure from offline competitors and to clarify the ambiguous legal status of online car hailing, China currently enforces a strict regulatory scheme through what can be described as a central-local dual system. Questions, however, have arisen regarding the legality, proportionality and effectiveness of this approach. Moreover, the current system's choice for a segmented market strategy heavily impairs the sustainable development of the sharing economy. Therefore, the adoption of Internet-based regulations for online car hailing might create better prospects to establish a fairly competitive market as well as to further boost the ever dynamic Internet sharing economy in China.     

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。     

论出租车经营中的垄断问题

出租车经营中存在的垄断问题,包括：出租车公司与交通主管部门之间存在政企同盟、出租车公司滥用市场支配地位和形成垄断协议、自由资本对低效管制体制的冲击等。解决问题的路径除了现实主导的行政力量外,还可以有反垄断执法机构的执法、法院的反垄断司法。     

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.     

法律经济学和中国法律改革、未来中国法学

国外法学界已掀起了一场法律经济学运动。法律经济学提供了一套与传统法学迥然不同的分析方法 ,我国法学界已开始引进并运用这些分析方法。法律经济学在中国的发展必将改变中国传统法学固有结构 ,促进中国的法律改革。     

出租车数量管制的行政法分析——以北京市出租车行业为例

北京市自1993年起对出租车进行数量管制,据相关文件以及特许方式的分析,数量管制的措施是不合法的,也不符合比例原则。然而,有关数量管制的不合法文件却未得到有效清理,且我国《行政诉讼法》将抽象行政行为排除于司法审查的范围之外,使得交管局在处理申请出租车经营许可时,其管制行为依然有"法"可依,即便该管制行为严重限制了公民的经济自由。鉴此,应该尽快制定和修改相关法律、法规,逐步放开数量管制,对出租车行业实行严格的资质准入,以实现出租车行业的发展。     

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.     

“PARADOX OF ENGLISH LAND LAW” — AN ENLIGHTENMENT TO LAND LAW REFORM IN CHINA

Since the founding of New China in 1949, the land law system with Chinese characteristics has been formed based on various practices, inter alia, the evolution of the rural land law system from the agrarian reform to the cooperative and people’s communes and further to the household contract responsibility system, which made historical contributions to the development of Chinese social economy. However, with the development of the practices and the deepening of the reform, China’s land law system is facing great challenges under the new circumstances. Although many differences exist between English land law and Chinese land law in the areas of legal form, the regulated objects and contents, English land law can provide some beneficial enlightenment to China’s land law reform. Particularly, the “paradox of English land law,” which presents the way how the English land law, as the law adjusting the basic property relations with many traditional factors, responds to the process of social and economic development with leaps and bounds.     

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.     

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.     

以绿色奥运为契机全面推进我国政府绿色采购的发展

改革开放三十年，我国经济社会得到了飞速发展，成功申办第29届奥林匹克运动会就是国际社会对我国经济与社会发展成果的充分肯定。如何通过政府采购这一强有力的宏观调控杠杆以实现北京奥运会绿色奥运、科技奥运、人文奥运的理念，进一步实现我国经济社会的可持续发展，全面推进我国政府绿色采购的发展将是关键。本文旨在通过对国外政府绿色采购发展状况的分析，以北京奥运会为契机，探讨推进我国政府绿色采购发展的途径。以期促进循环经济发展和环境友好型社会的构建。     

WTO框架下中国农业法制环境的完善

经过乌拉圭回合的艰苦谈判,WTO成员间终于形成了一套农产品贸易安排的规则体系。我国是传统的农业大国,入世后,中国农业与世界农业的关联度大大增强,所以研究这套规则体系与中国农业发展的关系对于加速中国农业发展,繁荣农村经济,增加农民收入具有重大意义。本文解读了《农业协议》的核心内容,认真研究了中国农业经济和法制的现状,分析了入世给中国农业带来的机遇和挑战,以期对中国农业法制环境的完善提出有益的建议。     

深化司法体制改革与诉讼正义的审视与探讨

随着中国经济发展迈入国际先进行列,成为第二大经济体,但司法体制质量还未达到现代先进行列中。中共中央总书记、国家主席、中央军委主席、中央全面深化改革领导小组组长习近平强调,要高度重视改革方案的制定和落实工作,做实做细调查研究征求意见,评估把关等关键环节,严把改革方案质量关,严把改革督察关,确保改革改有所进、改有所成。研究、思考、确定全面深化司法制度改革的思路和重大举措,应当全面深入的调查确定,做些有益探索和分析,为司法体制改革和诉讼正义等若干问题探索接地气,攒底气,对一些司法改革方案进行考核验收,查哨查岗,确保落实。同时,也应体现"公平、正义、民主、自由"的社会主义特色的法制核心价值。     

民间投资在我国发展的问题与对策

改革开放20多年来,民间投资在我国已经有了很大的发展,但由于受思想观念、政策法规、体制环境以及民间投资自身因素的制约,民间投资在我国的完全发展仍然存在诸多障碍,应采取有力措施逐步解决这些问题,以最终形成适应市场经济要求的民间投资发展状态。     

“全域数字法院”的构建与实现

近年来中国互联网司法发展取得了显著成效,为建设一种全新的法院样态——"全域数字法院"提供了可能。与既往的法院信息化建设不同,"全域数字法院"是一场重塑性的制度革命,它以线上线下深度融合、内网外网共享协同、有线无线互联互通为基本要求,更加注重系统集成与数字赋能,更加注重流程再造与制度重塑,更加注重全面数字化与高度智能化,运用"技术+制度"为实现更高水平的公平正义注入新效能。建设"全域数字法院",主要路径是通过"平台化建设""无纸化转型""智能化赋能"三阶段,打造全生命周期的司法平台,提供全时空在线的司法服务,构建全流域智能的司法模式,驱动司法制度的全方位变革,并最终实现司法领域从数字赋能到制度重塑的革命性变革。     

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.     

职代会的定位与功能重塑

职代会制度是我国颇具特色的一项职工参与制度。随着市场经济体制的建立以及企业治理制度的变革，职代会的地位和作用发生了变化，需要重新审视职代会的正当性。目前，有关职工参与的各种理论从不同角度论证了职代会的正当性，职代会对完善公司治理、加强公司监督、维护公司利益也具有积极作用。我国应通过完善职代会设立规则、职权设置，使传统的职代会与市场经济体制下的现代公司治理机制相契合，让职代会成为职工与企业协商沟通的主要平台，在新的体制环境下发挥协商和监督等功能。     

中国法治进路的根本面向与社会根基--对市民社会理论法治观质疑的简要回应

市民社会理论早已突破了国家与市民社会"二元对立"的传统范式,实现了重大发展并对当代法治变革具有重要意义.它不仅是西方的经验和逻辑,也展现了对人类现代性命运和前途的深层关怀.中国的改革开放和市场经济发展同样展现了国家与社会分离的现实进程,这说明市民社会理论可以用于中国的分析,培育和构建中国市民社会也是可能和必要的.法治的历史发展和当代变革表明,市民社会是法治得以生成和运行的必要社会土壤,依法治国进程中法治"表面化"倾向的根本症结就在于忽略了这一土壤,因此,必须把市民社会的培育和构建确立为中国法治进路的根本面向和社会根基.     

Foreign Direct Investment in China: Determinants and Effects

This paper attempts to assess the determinants of Foreign Direct Investment (FDI) in China and its effects on the whole economy. After presenting the main theoretical contributions and the previous works done about China’s inward-FDI, an empirical study has been implemented extending the previous ones with a different data set (more recent) and with different methodologies. The traditional determinants of FDI seem to be relevant for China: domestic market size, cost advantages and openness to the rest of the world. Concerning the consequences of FDI on the Chinese economy, our empirical evidence supports the view that FDI affects China’s growth through the diffusion of ideas. Through the introduction of new ideas, multinational firms develop technical progress and hence long-run economic growth. The transmission of ideas seems to have had a positive effect on the Chinese growth.