The legal construction of personal information protection and privacy under the Chinese Civil Code

Personal information protection and privacy interact in diverse ways, especially in the contemporary information age. Although books and articles have focused on this topic, the new tendencies of worldwide legislation and judicial practice bring challenges, as the legal construction of personal information protection and privacy differs from culture to culture and time to time. In 2017, the General Provisions of the Civil Law of the People's Republic of China (“the General Provisions of the Chinese Civil Code” hereafter)¹ (expired) addresses the legal concepts of personal information protection and the right to privacy simultaneously, to which this article refers as the dual model, differing from the one-dimensional mode of privacy protection before. Subsequently, the “The Right to Privacy and the Protection of Personal Information,” a chapter of the newly issued Civil Code of the People's Republic of China's (“the Chinese Civil Code” hereafter), ascertains the dual model and details related provisions. It has been dubbed a landmark ruling of China's personal information protection, greatly boosting the modernization of China's civil system.Despite the many articles that discuss approaches to China's civil protections, little attention has been given to the fundamental question concerning what exactly encompasses the personal information protection and privacy to which these laws refer. Based on the regulations and applicability of the General Provisions of the Chinese Civil Code and the Chinese Civil Code, this paper explores the legal construction of personal information protection and privacy under Chinese legal orders, including the differences, similarities, and interplay between the two rights. By distinguishing the legal value, contents and remedial approaches, this paper concludes that the two rights are distinct but overlap. On one side, personal information protection is elevated to the status of a separate civil right in the legal context of China, rather than part of privacy. On the other side, tailored regulations should be establish according to the criteria of the nature of information, the extent of information processing, and the elements of damage when confronted with overlaps in the two rights in judicial practice. Thus, this paper provides a perspective from which to clarify the approaches to civil protection of personal information and privacy in China and a reference model for enactment of the Chinese Personal Information Protection Law in the future.     

Constitutional‐Electoral Reforms and Politics in Singapore

Abstract The existence of a dominant one‐party system in Singapore makes legislative passage of constitutional and electoral system reforms easy. Such a system has enabled the ruling People's Action Party (PAP) government to formulate and implement sweeping reforms with little difficulty, however controversial they are. Since 1980, the Singapore government has instituted nonconstituency MPs, nominated MPs, group representation constituencies, and an elected presidency. Although not necessarily intended, one consequence of these reforms has been the consolidation of the government's power.     

四级两审制的发生和演化

司法体制改革的一个重要举措是设立最高人民法院巡回法庭,这一改革举措可能意味着我国法院层级或审级变化的新动向.从建国以来的历史经验看,法院层级和审级变化并非彼此孤立,且都从属于国家政治形态设计.1954年中共中央取消大区分院,促动了法院审级由三审制改为两审制.两审制带来的法院功能和案负变化,导致中级人民法院层级的设立.为了保障四级两审制平滑运作,民事调解制度扩大,基层法院派出法庭普遍设立.这一法院层级和审级制度的设立,契合了扩大省级地方权力的政治目标.1983年以来“地改市”运动、民事调解制度的萎缩以及撤销部分派出法庭,使得四级两审制的基础发生松动,法院层级和审级方面的新变化由此产生.     

Evaluating the work of Australia's Family Relationship Centres: Evidence from the first 5 years

Family Relationship Centres (FRCs) have been described as a centerpiece of Australia's 2006 family law reforms. This paper places these centres in the larger context of the reforms and their commitment to providing community‐based family services in the family law area. The paper also examines the empirical evidence regarding FRCs' use and effectiveness. It notes that while the objectives and intentions of FRCs place considerable emphasis on strengthening family relationships and assisting families to stay together, the centres themselves have only a modest level of direct involvement with intact families. FRCs tend to have strong links with other community‐based family services, many of whom are more engaged with intact families; but it is difficult to gauge their effectiveness in this area. Most FRCs' direct services are aimed at separating families and most of that work involves family dispute resolution (family mediation) and associated services such as screening and assessment and the provision of relevant information. A substantial majority of clients who attend FDR at an FRC reach agreement about their parenting arrangements either at FDR or subsequent to attending FDR. These agreements also tend to hold up in the medium term. A majority of parents believe that at FDR, the child(ren)'s needs were taken into account; the parenting agreement worked for the child(ren); and the parenting agreement worked for them. A substantial proportion of FRC clients come from families that have experienced family violence or other dysfunctional behaviours, and such behaviours reduce the chances of resolving parenting disputes. The paper concludes by suggesting that having been created mainly as a default alternative to legal interventions and court processes, it is likely that a major future strength of FRCs will lie in their emerging capacity to work constructively not only with other relationship services and networks, but with family lawyers and the courts.     

Alachua free‐net: Looking for the First Amendment at one outpost on the information highway*

Many communities are developing civic computer networks to provide citizens with free access to local information resources and the Internet. However, most networks restrict both commercial speech and any language deemed “objectionable.”; Whether such broad discretionary power violates the First Amendment depends on whether the networks are state actors. An examination of one such network, Alachua Free‐Net, reveals a close symbiotic relationship between the network and several local government entities. Symbiotic relationships between the state and a private party in other contexts have been held by the courts to constitute state action. Thus, Alachua Free‐Net appears to be a state actor and must conform its speech restrictions to the requirements of the First Amendment. Moreover, whether state actors or not, civic computer networks such as Alachua Free‐Net should commit themselves to providing full First Amendment freedoms to their users.     

最高人民法院关于无效行政行为的探索

最高人民法院从司法审查引发出对无效行政行为制度的探索,虽没有使用“自始没有任何法律效力”和“无效”等概念,却在民事诉讼领域形成了有关基础行为的构成要件,在对行政行为的司法审查中形成了重大明显瑕疵的类型化和明显性判断标准,并形成了排除具有重大明显瑕疵行政行为公定力、相对人拘束力和司法强制执行力的无效行政行为制度雏形,为我国今后立法积累了丰富的素材。从最高人民法院的探索轨迹及其重大明显瑕疵的类型化,可以发现无效行政行为规则的鲜明中国特色,司法的制度生成意义和生成机制。     

Is the label ‘minimal legislature’ still appropriate? The role of the National People's Congress in China's political system

To discuss the type of legislature, this article explores what role the National People's Congress (NPC) plays in China's political system, particularly in legislation. According to Mezey's study (Comparative Legislatures, 1979), he defines ‘minimal legislatures’ as being characterised by having little or no policy-making power and being more supported by the elite. The assumption is that the NPC is a minimal legislature, acting as a rubber stamp for the executive. This study is used to test this assumption. The findings show that the NPC does play an important role in the whole political system, especially in legislation, though the NPC has typically been under the control of China's Communist Party. The findings also call into question the continued applicability of Mezey's classic typology legislatures given the development of the Chinese legislature. A new approach for classifying legislatures is introduced based on the institutionalisation and professionalisation of a legislature.     

The New Code of Criminal Procedure in the People's Republic of China: Protection,Problems, and Predictions

This paper is a “nuts and bolts” look at criminal procedure in China as outlined by Chinese and Western scholars, the Chinese code of criminal procedure, and my own observations in the People's Republic of China. China has finally formalized, at least to some degree, its criminal justice procedures and protections after years of ad hoc procedures. Also, along with codifications of criminal procedures, the Chinese are making greater use of defense attorneys, and trying to work out their version of “presumption of innocence.” Finally, the Chinese are grappling with these new rules and procedures, attempting to develop a fair and consistent system of criminal procedure that sometimes still gives way to political expedience.     

Citizen Review of the Police

Abstract

The research presents the summary and analysis of ten-year data (1991-2000) involving the People's Law Enforcement Board (PLEB). It describes the types of police officers and the police departments that had cases before the People's Law Enforcement Board (PLEB). It also examines the types of cases that were handled by these civilian review boards as well as the manner of dispositions of these cases, the number of times its decisions were affirmed, reversed, or modified by an appellate board, and the composition and qualifications of the members of the boards. The data indicate that the propensity of police officers for receiving complaints in the boards may be a function of both rank and assignment. The data also suggest that the PLEB tends to be lenient in its disposition of cases. However, the People's Law Enforcement Board appears to make good quality decisions as indicated by the appellate boards' upholding of PLEB decisions.     

SEX EDUCATION LEFT AT THE THRESHOLD OF THE SCHOOL DOOR: STRICTER REQUIREMENTS FOR PARENTAL OPT‐OUT PROVISIONS

Current state law creates the risk that, if sex education is not provided to a child in public school, no similar instruction will be given to the child. Legislatively enacted opt‐out provisions give parents broad control over their child's education by granting them the option to have their child excused from any sex education requirements within a public school's curriculum. Through public school sex education, professionals provide youth information aimed at protecting them from the dangers of pregnancy and sexually transmitted diseases (STDs). A stricter statutory opt‐out provision should be enacted by state legislatures that only allows parents to excuse their child from sex education after a parent attends a 90‐minute STD prevention course and receives the instructional material used in the school's sex education curriculum. Parents should be provided up‐to‐date information and a structural framework designed by the school to encourage them to discuss with their child the many sexual issues addressed within a school's sex education curriculum.     

Politics,power and prevention: The People's Republic of China case

The article emphasizes the play of political power as a dimension of crime prevention and the special relevance of that relationship to the People's Republic of China. Prevention is embedded in the PRC macro-control system, which uses all elements of power in managing deviants and nondeviants simultaneously. The Maoist ideology has been sustained through “political education” that takes advantage of the traditional cultural acceptance of intervention before a legally-defined criminal act has been committed. Recent developments in the PRC, however, suggest that the macro-control props of political education are being weakened, as indicated by the recent resort to crime control methods. It appears that, although the uniqueness of the Chinese sociocultural system must be recognized, the PRC regime faces some of the problems faced by western societies that must share power in endeavoring to implement prevention programs.     

China's exchange rate and the balance of trade

This paper examines the responsiveness of the balance of trade of the People's Republic of China to the real exchange rate. We find that, in both the short-run and the long-run, devaluation serves to improve the balance of trade. Using quarterly data for 1980:I to 1989:IV we show that the bulk of the response to devaluation occurs over a one year period, with noJ-curve effect. These results suggest that the two-tier price system and other measures to liberalize the Chinese economy have made the exchange rate an effective indirect tool for regulating trade.     

依法律行政原理的移植与嬗变

依法律行政,旨在藉由法律的合理性控制行政的恣意,并获得法的安定性和民主性,它是近代形式法治国家的产物,是自由主义与民主主义的结合。德国依法律行政原理经由奥托·迈耶的提炼基本定型,经由美浓部达吉等人传至日本,并影响了我国早期的行政法学。在新中国,依法行政逐渐得到强调。这种转变既有行政立法高涨的现实影响,也有方法论上的原因,但更多缘于全国人大—行政机关—司法机关的权力格局。从全国人大与国务院的宪法关系来看,应当重新确立依法律行政原理,并从行政诉讼上为依法律行政提供保障机制,同时摒弃依法行政中的某些错误观念,以确保法治国家的真正实现。     

中国宪法实施的双轨制

与许多西方国家的宪法实施模式不同,宪法审查并非中国宪法实施的主要方式。中国司法机关不能根据宪法直接审查立法的合宪性,而作为有权机关的全国人大常委会,也没有做出过宪法解释或宪法判断。这是中国宪法实施的真实状况,但不是中国宪法实施的全部。从比较法角度看,中国宪法更像一个政治纲领式的宣言,更多依靠政治化方式实施。伴随着法治化进程,中国的宪法实施逐渐由单一依靠政治化实施,过渡到政治化实施与法律化实施同步推进、相互影响的双轨制格局。宪法的政治化实施体现为执政党主导的政治动员模式,而宪法的法律化实施则是以积极性实施为主、消极性实施为辅的多元实施机制。在比较法的意义上,政治化实施和法律化实施的双轨制,可以为描述中国宪法实施提供一个理论框架。     

Variation in Speaker Power: The Case of the Russian Congress, 1990-93

The legislative studies literature suggests that speakers may exercise significant power over political outcomes if they can set the agenda of a parliament that lacks a stable majority. This article examines whether speaker power varies once the generic conditions for its exercise exist. This question is central to a better understanding of the decision-making capabilities of a whole class of (often transitional) assemblies, which use speakers to structure their proceedings. The article addresses this question through a case study of the Russian Congress of People's Deputies that draws on new evidence from the stenographic records and voting data. This evidence suggests that the degree of political fragmentation of a parliament and the number of issues negotiated impact on the ability of speakers to structure the assembly's business. The implications of this finding for the work of speaker-dominated legislatures are explored.     

Establishing Connections: Gender,Motor Vehicle Theft,and Disposal Networks

Motor vehicle theft is an offense typically dominated by male offenders. As with all other major forms of criminal activity that are male dominated, women do participate in the theft of vehicles; yet, few studies have endeavored to examine their involvement in auto theft and even fewer have directly compared women's experiences alongside that of men's. This paper examines the gendered nature of motor vehicle theft through direct comparison of in‐depth interviews with 35 men and women actively involved in auto theft in St. Louis, Missouri. By tracing similarities and differences between men's and women's initiation into auto theft, enactment methods, and access to networks for vehicle and parts' disposal, we provide a contextual analysis of offender's perceptions and behavior. The findings indicate that while initiation into auto theft and property disposal networks are both governed by male gatekeepers, women experience greater barriers in gaining access to disposal networks than they do entry into auto theft offending which, in turn, leads to some key similarities in techniques between men and women.     

“Kill the chicken to scare the monkey”: Heavy penalties,excessive COVID-19 control mechanisms,and legal consciousness in China

This study analyses the legal consciousness of Chinese citizens during the COVID-19 pandemic when the authoritarian state invoked heavy penalties to deter noncompliance with its excessive COVID-19 restrictions. China used the approach of “killing the chicken to scare the monkey,” publicly punishing those who violated restrictions in order to deter noncompliance. This article explains why ordinary citizens supported this selective application of the law, as well as how the possibility of being the “chicken” contributed to their compliance (or noncompliance) with excessive COVID-19 restrictions. It suggests that the uncertainty and unpredictability of law in the authoritarian state bred fear, which then led to compliance, regardless of the lack of procedural fairness. People's dissatisfaction with the rules, however, led them to tolerate and even support the noncompliance of people they trusted.     

The People Against Themselves: Rethinking Popular Constitutionalism

Ackerman, Bruce. 2014 . The Civil Rights Revolution . Cambridge, MA: Belknap Press of Harvard University Press. Shugerman, Jed Handelsman. 2012 . The People's Courts: Pursuing Judicial Independence in America . Cambridge, MA: Harvard University Press. In the course of reviewing Jed Shugerman's The People's Courts: Pursuing Judicial Independence in America and Bruce Ackerman's The Civil Rights Revolution, we argue for a reassessment of the way that scholars think about popular constitutionalism. In particular, we urge scholars to resist the tendency to create a dichotomy between judicial interpretation of law and a set of nonjudicial venues in which popular constitutionalism supposedly takes place. Popular constitutionalism is temporally and contextually bound, reflected in different forms and forums at different times in US political history and always dependent on the interactions between these institutions. By implication, this suggest that judges, rather than serving as obstacles to popular understandings of law, can and have used various forms of democratic authorization to strike down legislation violating both state and federal constitutions, thus bridging judicial review and popular constitutionalism with explicit support from the citizenry.     

新民主主义宪政立法的有益尝试——1946年《哈尔滨市施政纲领》考察

1946年《哈尔滨市施政纲领》是中国共产党在新民主主义革命阶段为建立国家政权积累经验,在中心大城市实行民主政治、建设管理政权的初次尝试,是对毛泽东提出的新民主主义理论的最早实践。该纲领中提出的“建立民主的、法治的社会秩序”及“建设和平、民主、独立、繁荣的新哈尔滨”的构想,对其后相继建立的各解放区的宪政立法及《中国人民政治协商会议共同纲领》产生了直接影响,是新中国宪政立法的重要渊源。