THE CONCEPTUAL BASIS OF PRIVACY STANDARDS IN CHINA AND ITS IMPLICATIONS FOR CHINA’S PRIVACY LAW

China has one of the longest histories of civilization in the world. In ancient China, civil disputes were solved by moral principles of Confucianism, called li (礼). Therefore, at the time of the emergence of li, privacy was indirectly protected to some extent. However, li also restrained the legal privacy protection at that time. Moreover, the substantial meaning of traditional protection for privacy is quite different from that in modern society. In consequence, it is difficult to postulate that there was legal protection for privacy in ancient China, though privacy had been indirectly protected by the theory of li. If the right to privacy is seen as a milestone in its evolution in modern society, the modern concept and protection of privacy emerged in China almost a century later than in some Western countries. 1 The first consideration for the protection of privacy in China was a judicial interpretation by the Supreme Court in 1988.2 Since then, China has been developing its own protection for privacy. This article is to explore privacy standards in both ancient and modern China with two main parts: (a) The first part discusses the privacy in ancient China, including traditional Chinese concepts of privacy, traditional Chinese protection for privacy, and its evaluation; (b) the second part examines the privacy standards and privacy protection in modern China.     

THE GUIDING CASE SYSTEM IN CHINA’S MAINLAND

Starting from the establishment of the guiding case system in December 2010, the Supreme People’s Court of China has issued 31 guiding cases. This article discusses the background, purposes and functions, ways to function, and effects of the guiding case system. It compares it with ancient Chinese guiding case systems, and the common law system from these perspectives. Based on the analysis of these comparisons, this article argues that the current guiding case system is neither an extension of the ancient Chinese guiding case systems nor a transplant of the common law system. However, the current guiding case system and common law system have the tendency to become more and more similar systems in reality.     

ANTI-ABUSE OF INTELLECTUAL PROPERTY RIGHTS UNDER THE ANTI-MONOPOLY LAW: CHINA’S APPROACHES

Even though China’s first Anti-Monopoly Law (AML) was effective on August 1, 2008, the implementation of Article 55 has been delayed until 2014 when several actions were taken. For examples, several foreign giant intellectual property holders were investigated for possible abuse of their intellectual property rights and the State Administration for Industry and Commerce released the Rules on Prohibiting Conducts of Abusing Intellectual Property Rights by Excluding or Restricting. The underlying message is obvious: China starts to pay more and more attention to the protection of intellectual property (IP) rights on the one hand, she decides to seriously deal with the abuse of intellectual property rights by intellectual property owners, especially those giant international companies. Because the issue of how to balance the tension between IP law and the AML is a new topic in China, this paper intends to outline the prevailing experiences from foreign jurisdictions especially from the United States and European Union and to propose some useful strategies and approaches, which are fit into China’s reality.     

《SPORTS LAW IN CHINA》书评

正我国体育法学研究萌芽于20世纪80年代,作为一门新兴学科,它研究的重心之一就是体育法律制度。遗憾的是,时至今日我们并没有看到一部全面研究中国体育法律制度及其法律适用的体育法学论著出现,散见于体育法学教材中的体育法律制度只是肤浅的介绍,充其量只能满足科普的需要,与全面和深入研究相去甚远。让人倍受鼓舞的是,康均心教授及其研究团队最近的一本新书《SPORTS LAW IN CHINA》的出版面世很好的弥补了上述遗憾。康教授是武汉大学法学院体育法专业的博士生导师,他在体育竞技冲突的刑事解决机制领域多有著述,尤其在研究反兴奋剂和体育竞技冲突解决领域成果     

IS ARTICLE 5.7 OF THE SPS AGREEMENT AN APPLICATION OF THE PRECAUTIONARY PRINCIPLE?

The “Precautionary principle” is regarded as the new buzz phrase in the discussion of risk regulation relating to the areas of environment and health. Article 5.7 of the WTO Agreement on the Application of Sanitary and Phytosanitary Measure (SPS Agreement) uses a similar approach to the protection of human, animal and plant life, and health. It is important to pay close attention to some of the relationships concerning the precautionary principle and Article 5.7. Firstly, when a member decides to take sanitary and phytosanitary (SPS) measures, they usually act from the perspective of prudence and precaution. In addition, the precautionary principle finds similar expression in Article 5.7. However, the precautionary principle has not been explicitly written in the SPS Agreement as a ground for justifying the SPS measures in situations that are inconsistent with the obligations set out in the Agreement. The case law shows that the Panel is very careful about the use of the language of precaution. The Appellate Body is reluctant to allow the precautionary principle to override the specific obligations in the Agreement. Whether Article 5.7 can be regarded as an application of the precautionary principle needs to be examined. Under the current discourse, however, this article finds that the precautionary principle cannot by any means be used as an interpretative tool for Article 5.7. Reliance on the precautionary principle to trigger Article 5.7 is supposed to be unsuccessful. As in situations where taking SPS measures threats the environment and health become irreversible, more attention should be paid to practical issues to ensure the necessity and efficacy of the measures.     

RENMIN LAW SCHOOL DELEGATION ANNOUNCED ＂ANNUAL REPORT ON THE LEGAL DEVELOPMENT IN CHINA＂ IN THE U.S. AND GAVE SPEECHES IN PHILADELPHIA AND WASHINTON DC

Renmin University of China Law School delegation went the U.S. in April 2014 and participated in a one-day conference in Philadelphia held by the University of Pennsylvania （UPenn） Law School and a half-day seminar in Washington DC held jointly by the American Bar Association Rule of Law Initiative （ABA ROLI）and UPenn Law School. The delegation is composed of Professor Han Danyuan, Dean of the Renmin Law School, Professor Zhu Jingwen, Chair of the Academic Committee, Professor He Jiahong, Director of Evidence Law Research Center, Professor Shi Yan＇an, the Vice Dean of the Renmin Law School, Associate Professor Lu Haina, Director of Human Rights Program, and Ms. Xu Fei, Project coordinator of the Intemational Office.     

REVIEW OF THE 7TH NATIONAL MEMBERS＇ CONGRESS OF CHINA＇ S LAW SOCIETY

From November 29 to 30, 2013, the 7th National Members＇ Congress of China Law Society was held in Beijing. The leaders of the Cortmmnist Party of China （CPC）, Xi Jinping, Zhang Dejiang,     

FOCUS： PUNITIVE DAMAGES IN CHINA PUNITIVE DAMAGES,CHINESE TORT LAW,AND THE AMERICAN EXPERIENCE

In a country such as China, with abundant consumer products and the inevitability of product defects, claims for punitive damages are sure to arise under Article 47 of the new Chinese Tort Law. Article 47 provides that ＂（w）hereany producer or seller knowingly produces or sells defective products, causing death or serious damage to the health of others, the injured party may request appropriate punitive damages.＂ As Chinese jurists and scholars interpret Article 47, they may wish to consider whether lessons can be drawn from the American experience. During the past two decades, few areas of American law have changed more radically than the law on punitive damages. While there were once few restraints on the ability of a judge or jury to impose punitive damages in a case involving egregious conduct, today there are a host of limitations embodied in American state and federal law. In many American states, statutes or judicial decisions restrict the ability of a court to award punitive damages by narrowly defining the types of conduct that will justify a punitive award, raising the standard of proof capping the amount of punitive damages, requiring a portion of a punitive award to be forfeited to the state, or limiting vicarious liability for punitive damages. In addition, under federal constitutional law, the principle of due process limits the imposition of punitive damages by scrutinizing the ratio between compensatory and punitive damages and prohibiting an award to be based on harm to persons other than the plaintiff. An examination of these developments from a comparative law perspective may prove useful to the implementation of Article 47.     

THE RIGHT TO EMPLOYMENT SECURITY IN CHINESE LABOR LAW：LATEST DEVELOPMENTS IN LIGHT OF INTERNATIONAL LAW

Employment security is very often examined from a labor law rather than a human rights perspective. This article looks at the employment security in Chinese labor law from a human rights perspective. The right to employment security includes both negative and positive aspects: a negative right to protection against unfair dismissal, including dismissal for cause and economic redundancy, and a positive right to employment stability. Comparing Chinese labor law with international standards, this article focuses on analyzing important changes in the legislative developments in China in the past years, such as severance pay, labor contract with indefinite duration, and labor dispatching. This article also points out the main deficiencies, such as dismissal on the ground of criminal liabilities, weakness of trade unions and law enforcement, and no exemption of small employers. The article concludes with observing a tendency of Chinese law getting closer to international standards and pointing out the approach China should follow: to enhance employability through vocational training and providing better social security when strengthening the legislative protection of employment security.     

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.     

“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.     

NEW PROBLEMS IN CHINA’S HOUSING LEGISLATION AND ITS SOLUTIONS

Since China’s reform and opening up in 1978, the housing system in China had undergone two major reforms; currently, the third major reform (also called the second housing revolution) has started. This article analyzes the historical course of the reforms, investigates the gains and losses of the reforms, seeks the directions for deepening the reform of housing system, and in turn, establishes the patterns of housing construction and consumption in accordance with Chinese actual conditions. The report of the 17th National People’s Congress pointed out that “housing guarantee” is a heavy task “to ensure and improve people’s living standard, to promote social equity and justice, and to build a harmonious society.” The Real Right Law of China plays a positive role to protect housing rights, but it only gives limited protection of housing right. Meanwhile, the Real Right Law itself introduces new problems to the housing security. In order to protect housing rights and achieve the objective of “housing guarantee,” China needs to further improve the housing system and advance the housing legislation. The main approaches in this article include: (a) carrying out the “three-three housing policies,” there are basically three types of housing systems, three means of land provision, and three teams involved; (b) employing the bidding method of “four decisions and two biddings” for land supply, it means that the government should take the responsibility to decide land prices, construction standards, tax rates and profit rate; and the bidder is determined by scoring each of the bidders as for his house price bidding and building program bidding; (c) establishing the system of habitation right in China’s Housing Law and maximizing its function of social security; and (d) further improving relevant regulations in the proposed housing act or housing security law and paying attention to the establishment and implementation of supporting measures.     

AN EXAMINATION OF RETAIL CLIENTS’ INVESTOR SUITABILITY RULES IN THE COBS AND THE LESSONS FOR CHINA

Nowadays, the complexity of financial products makes it difficult for retail clients to identify investment risks, and there is an increasing tendency for firms, stipulated by the maximum profits, to recommend or enter into unsuitable transactions to or for retail clients while providing services of investment advice and portfolio management, which causes great losses to a significant number of investors. So, in the contemporary society, the investor suitability rules through which retail clients can purchase suitable financial products are the indispensable legal basis of investor protection. Currently, the regulations concerning investor suitability management in China have several problems, including the chaotic legal system, low effectiveness level and defective contents, which may make it difficult for suitability to be applied in justice and managed effectively. Since the UK’s investor suitability rules in the Conduct of Business Sourcebook that apply to retail clients whose contents include requirements of obtaining retail clients’ information, requirements of information to be provided to retail clients and criteria of assessing suitability are clear and comprehensive, the authors believe that the UK’s experiences can provide a great enlightenment for China to better investor suitability management rules, including integrating legal documents and optimizing effectiveness level, rationalizing application scope, adding criteria of assessing suitability and revising specific clauses.     

CONSTITUTIONAL COURT＇S JUDGEMENTS INFLUENCE ON THE ADMINISTRATIVE LAW

In all democratic states, constitutional courts, which are traditionally empowered to invalidate or to annul unconstitutional statutes, have the role of interpreting and applying the Constitution to preserve its supremacy and to ensure the prevalence of fundamental rights. In this sense, they were traditionally considered as ＂negative legislators,＂ unable to substitute for the legislators or to enact legislative provisions that could not be deduced from the Constitution. During the past decade, the role of constitutional courts has dramatically changed, as their role is no longer limited to declaring the unconstitutionality of statutes or annulling them. Today, constitutional courts condition their decisions on the presumption of constitutionality of statutes, opting to interpret them according to or in harmony with the Constitution to preserve them, instead of deciding their annulment or declaring them unconstitutional. More frequently, constitutional courts, instead of dealing with existing legislation, assume the role of assistants or auxiliaries to the legislator, creating provisions they deduce from the Constitution when controlling the absence of legislation or legislative omissions. In some cases, they act as ＂positive legislators ＂, issuing temporary or provisional rules to be applied pending the enactment of legislation.     

CHINA’S WTO PARTICIPATION IN ANTI-DUMPING DISPUTES (2001–2011)

The anti-dumping war between the US and China has attracted much attention lately, especially after a March WTO ruling and a November US domestic court ruling on the issue in 2011. While the former held that the current US method of applying countervailing and anti-dumping duties simultaneously on imports from China and other non-market economies was “inconsistent” with the WTO rules, the latter ruled that such action was “illegal” under the US countervailing law. China has been one of the most frequent anti-dumping investigation targets by both developed and developing countries for decades. Although it currently has more than one hundred anti-dumping actions against its trading partners at the domestic level, China is a very new player of anti-dumping litigation at the WTO level. China filed its first WTO claim on anti-dumping in December 2007 against the US, since when it has made frequent appearance at the WTO dispute settlement in this regard. This Article examines China’s participation in anti-dumping disputes during the first ten years of its WTO membership, five as complainant and four as respondent. The alleged undervalued Chinese currency has been claimed to provide unfair price advantages to Chinese products and consequently tops trade frictions between China and its trading partners. It to some extent contributes to the rising anti-dumping disputes of China. With the continuing pressure to appreciate the Chinese currency globally as well as the current debit crisis in the EU, more anti-dumping and countervailing investigations against China are expected to emerge as countries are pushing more exports to assist the gloomy domestic economies. This becomes more likely taking into account the mounting claims on the job lost in the US due to the flux of cheap and competitive Chinese products.     

CHINA＇S INTELLECTUAL PROPERTY PROTECTION IN FRANCHISING

Since the concept of franchising was introduced into China, the franch＆ing sector has witnessed a spectacular growth in the last decade. China today ＆ the most franchised country in the world in term of number of systems. The value and success of most franchising concepts are often substantially based on intellectual property -- primarily trademarks, trade names, copyrights, trade secrets, and patents. If a franchisor is to capitalize on the exclusivity of its unique intellectual property to provide it and its franchisees a competitive advantage, legal protection of these valuable assets is essential in China and contemplated business. The tremendous development of franchising has inevitably brought forth different kinds of problems such as the franchise contract disputes, intellectual property infringement disputes, etc. The strong growth of domestic and international franchising urges the great importance of protecting the intellectual property rights （IPRs） in China today. This paper addresses the Chinese franchising law and intellectual property law, analyzing the enforcement and protection of intellectual property law in China today in combination of some judicial cases judged by the courts. With more and more serious situation of intellectual property infringements in China it is crucial for the intellectual property rights to be maintained and safeguarded, some suggestions were put forward to protect the IPRs from the franchisors ＇perspective.     

TRIAL ON THE ELECTRONIC EVIDENCE: CHINA’S RULES ON ELECTRONIC EVIDENCE

How to use electronic evidence to decide cases has become a major conundrum in Chinese judicial practice. Starting with an analysis of a typical case, this article discusses two basic ideas of electronic evidence in deciding cases, points out the distinctions between scientific proof and judicial proof, and concludes that it should follow the road of judicial proof by suitably referring to the principle of scientific proof. On the basis of such discussion, it further expounds on the models and the mechanisms of electronic evidence. In addition, considering Chinese traditional theory of evidential law and learning from the proving method in historiography, it puts forward the theory of evidential system for electronic evidence in the virtual space. Finally, it focuses on how to deal with the digital alibi in practice and arrives at a solution by managing those theories comprehensively.     

REVIEW ON JOHN W. HEAD’S WORKS: GREAT LEGAL TRADITIONS - CIVIL LAW,COMMON LAW AND CHINESE LAW IN HISTORICAL AND OPERATIONAL PERSPECTIVE

John W. Head, Great Legal Traditions - Civil Law, Common Law and Chinese Law in Historical and Operational Perspective. Durham (North Carolina): Carolina Academic Press, 2011. ISBN: 978-1-59460-957-2. Pgs: xxiv + 676.