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Kill Fewer and Kill Cautiously? A Critical Review of Death Penalty Reforms in China 少杀慎杀?中国死刑改革述评
Peking University Law Journal Pub Date : 2014-12-01 DOI: 10.5235/205174814814222540
Jiang Su
{"title":"Kill Fewer and Kill Cautiously? A Critical Review of Death Penalty Reforms in China","authors":"Jiang Su","doi":"10.5235/205174814814222540","DOIUrl":"https://doi.org/10.5235/205174814814222540","url":null,"abstract":"China's death penalty scenario is exceptional not only in terms of the global trend but in terms of its sheer number of executions. Since the mid-2000s, death penalty has gained momentum in China under domestic and international pressure. A series of procedural and substantive reforms have been implemented, which changed the whole picture of the death penalty regime in China. On the whole, it can be concluded that China is moving from “kill many” to “kill fewer and kill cautiously”. However, the abolition of death penalty in China is unlikely to occur in the near future since the regime is highly restricted by political structure, the lack of human rights discourse and public opinion.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131612064","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Fate of the Death Penalty in Modern China 近代中国死刑的命运
Peking University Law Journal Pub Date : 2014-12-01 DOI: 10.5235/205174814814222531
Liang Genlin
{"title":"The Fate of the Death Penalty in Modern China","authors":"Liang Genlin","doi":"10.5235/205174814814222531","DOIUrl":"https://doi.org/10.5235/205174814814222531","url":null,"abstract":"This article examines changes to death penalty policy and judicial invocation of the death penalty in China. It also reflects how the death penalty provisions of the Criminal Law and the Criminal Procedure Law of China have changed in light of the new policy. By summarizing what the law has achieved and what changes should still be carried out, the article contemplates some possible future scenarios related to death penalty policy in China.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123516869","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
The Influences of the Law on the Working of the Economic System 法律对经济系统运行的影响
Peking University Law Journal Pub Date : 2014-12-01 DOI: 10.5235/205174814814222522
Ling Bin
{"title":"The Influences of the Law on the Working of the Economic System","authors":"Ling Bin","doi":"10.5235/205174814814222522","DOIUrl":"https://doi.org/10.5235/205174814814222522","url":null,"abstract":"The lasting dispute aroused by the Coase Theorem requires a reflection on and a clarification of the functions of the law in the Theorem. The legal delimitation of rights in the Coase Theorem has dual functions: the prerequisite of market and the substitute of market. A fundamental confusion between these two functions not only leads to the wrong inference that law should interfere with the working of the market given positive transaction costs, but also overlooks the existence of delimitation costs, which makes it hard to use the theorem to explain the influences of legal delimitation of rights on efficiency.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129480716","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The View of Early 20th Century Chinese Intellectuals on Ancient China's International Law 20世纪初中国知识分子对中国古代国际法的看法
Peking University Law Journal Pub Date : 2014-12-01 DOI: 10.5235/205174814814222577
He Mu
{"title":"The View of Early 20th Century Chinese Intellectuals on Ancient China's International Law","authors":"He Mu","doi":"10.5235/205174814814222577","DOIUrl":"https://doi.org/10.5235/205174814814222577","url":null,"abstract":"It's well known that the basic ideas and principles of modern international law originated in Europe. In a period of the early 20th century, however, a number of Chinese intellectuals examined and demonstrated that international law had already existed during the Spring and Autumn and the Warring States Periods in China. Through researching the related documents, the author demonstrates that European international law in the process of its expansion and universalization did not simply replace the conventional Chinese legal culture; the Chinese intellectuals' response to the Western impact constituted a genuine political interaction with the Western ideas and systems.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"2 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131946275","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
On the Selective Application of the Chinese Constitution 论中国宪法的选择性适用
Peking University Law Journal Pub Date : 2014-06-01 DOI: 10.1080/20517483.2014.11424482
Zhang Qian-fan
{"title":"On the Selective Application of the Chinese Constitution","authors":"Zhang Qian-fan","doi":"10.1080/20517483.2014.11424482","DOIUrl":"https://doi.org/10.1080/20517483.2014.11424482","url":null,"abstract":"To treat and implement the Chinese Constitution seriously, selective application is necessary. As an implementable fundamental law, its fundamental character determines that only some provisions of the Constitution receive direct application. The Constitution is not merely a political declaration, and thus generally the positive rights it provides should not be directly applied. The Constitution is also not an ordinary law, and therefore the civil obligations or the particulars of economic policies it provides should not be applied; these matters should be left to legislation. With the structure of its application clarified, the Chinese Constitution becomes entirely applicable and implementable. This article first critiques several theories of political constitutionalism in order to clear theoretical obstacles to the Constitution's application. Next, the article discusses the basic principles of applying the Constitution and proposes neutral criteria for identifying directly applicable Constitutional provisions. Finally, the article applies these criteria to evaluate the applicability of a number of provisions of the 1982 Constitution, and from this forms an applicable Constitutional framework.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129675662","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Nomos and Diverging Narratives: Reflectiing on the Constitutional Experience of the Early Republic of China “Nomos”与“发散叙事”:对民初宪政经验的反思
Peking University Law Journal Pub Date : 2014-06-01 DOI: 10.1080/20517483.2014.11424486
Zhang Yongle
{"title":"Nomos and Diverging Narratives: Reflectiing on the Constitutional Experience of the Early Republic of China","authors":"Zhang Yongle","doi":"10.1080/20517483.2014.11424486","DOIUrl":"https://doi.org/10.1080/20517483.2014.11424486","url":null,"abstract":"The constitutional experience of the early ROC is characterized by divergence, discontinuities, as well as attempts at renewal. To understand the relationship between narrative and constitutional norms during this period, it is necessary to distinguish “constitutive epics” that address the legitimacy of the whole constitutional order, and the narrative on a lower level focusing on how the legal force of constitutional norms is extended in time. Discontinuities and attempts at renewal during this period also highlight the significance of the temporal dimension, since to renew a suspended constitutional order requires retrospective legal interpretation to build the continuity between the past, the present, and the future. Ultimately, the diverging of narratives in the early ROC derived from the split of the interpretive community. From this perspective, the Nationalist Revolution and the Communist Revolution starting from the 1920s can be understood as attempts to build a more homogeneous interpretive community.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"140 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132295389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
An American Intangible Empire of Intellectual Property Rights and its Dilemmas 美国无形的知识产权帝国及其困境
Peking University Law Journal Pub Date : 2014-06-01 DOI: 10.1080/20517483.2014.11424489
Li Yinliang
{"title":"An American Intangible Empire of Intellectual Property Rights and its Dilemmas","authors":"Li Yinliang","doi":"10.1080/20517483.2014.11424489","DOIUrl":"https://doi.org/10.1080/20517483.2014.11424489","url":null,"abstract":"The United States of America has a long tradition of pursuing a commercial empire to avoid the possible fate of decline or dissolution facing every traditional empire. Since the early 1980s, domestic intellectual property regime had been fortified in the US to promote innovations and high-tech industry. Meanwhile, international intellectual property system had been globalized by establishment of the WTO and enforcement of the TRIPS in 1995 which could safeguard the technical and the corresponding commercial advantages of the US on world markets. An intangible empire of intellectual property rights had been constructed by the US for maximization of its interests. The distinctly American empire also has its intrinsic dilemmas. Internationally it could limit development of economy and social welfare of developing countries, and domestically it may incur patent trolls as such that may ruin rationale of the patent regime, and both may cause alienation of intellectual property regime that may further risk or demolish the intangible empire itself. Reasonable measures shall be taken to control the over-stretched intangible empire of intellectual property rights and to avoid its possible negative effects upon public interest both domestically and internationally.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116494345","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Revolution, Reform & Constitutionalism: The Evolution of China's 1982 Constitution 革命、改革与宪政:1982年中国宪法的演变
Peking University Law Journal Pub Date : 2014-06-01 DOI: 10.1080/20517483.2014.11424483
Gao Quanxi
{"title":"Revolution, Reform & Constitutionalism: The Evolution of China's 1982 Constitution","authors":"Gao Quanxi","doi":"10.1080/20517483.2014.11424483","DOIUrl":"https://doi.org/10.1080/20517483.2014.11424483","url":null,"abstract":"From the standpoint of political constitutionalism, this paper interprets the dual structure, the reformative nature, and the logic of evolution of the 1982 Constitution of the People's Republic of China. The 1982 Constitution was enacted and enforced both to bring order out of chaos for China and to provide a constitutional structure for the policy of Reform and Opening-up. Thus it takes on multiple and sometimes conflicting meanings, such as the duet of the themes of both revolution and de-revolution, as well as the three bodies of China's sovereignty. Therefore, the 1982 Constitution is in fact a constitution of reform with the meaning of de-revolution, whose four Amendments fully reveal its reformative nature and its evolutionary logic and internalize these as a new constitutional design—like putting new wine into old bottles.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132339278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
“Visible Constitutionalism”: A Perspective on Understanding the Fiscal Power Onfiguration of China's Constitution “看得见的宪政”:解读中国宪法财政权力配置的一个视角
Peking University Law Journal Pub Date : 2014-06-01 DOI: 10.1080/20517483.2014.11424485
Ou Shujun
{"title":"“Visible Constitutionalism”: A Perspective on Understanding the Fiscal Power Onfiguration of China's Constitution","authors":"Ou Shujun","doi":"10.1080/20517483.2014.11424485","DOIUrl":"https://doi.org/10.1080/20517483.2014.11424485","url":null,"abstract":"If the configuration of political power is the core of the constitutional system, then the fiscal power—as the lifeblood from which no political community can be separated—can be seen as the most integral part of the political power: fiscal power configuration can be called the foundation of all political regimes. Fiscal power configuration has its own rules that restrict political power; the synergies of personnel, finance, and functions determine the operating mechanisms of other political powers and their effectiveness. Fiscal power configuration rests on six institutions: revenue, expenditure, transfer payments, budget, final accounts, and the audit system. Constitutional law, tax law, budget law, and the law on transfer payments are its main forms. It is the constitutionalism most likely to be “visible” and constitutes the most pivotal constitutional practice. From this perspective, China's revenue-sharing system reform in 1994 is an unprecedented fiscal power reconfiguration of the People's Republic of China, which should be seen as a far-reaching transformation of the China constitutional practice. The social debate around the reform of the revenue-sharing system and its effectiveness, which began thirty years ago and continues today, also demonstrates the necessity of switching from a static to a dynamic view of the Constitution. Considering constitutionalism as a constant self-repairing and increasingly perfect dynamic process will help us discover living constitutional rules.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"51 10","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131874005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
On Normative Correctness and Social Efficacy of the Chinese Constitution 论中国宪法的规范正确性与社会效能
Peking University Law Journal Pub Date : 2014-06-01 DOI: 10.1080/20517483.2014.11424484
Zhang-hui Yan
{"title":"On Normative Correctness and Social Efficacy of the Chinese Constitution","authors":"Zhang-hui Yan","doi":"10.1080/20517483.2014.11424484","DOIUrl":"https://doi.org/10.1080/20517483.2014.11424484","url":null,"abstract":"In Terms Of The Fundamental Law And The Higher Law Of The Chinese Constitution, The Political Efficacy And The Normative Correctness Are Helpful To Act As A Proper Standard To Distinguish Between Them. With This Standard The Current Constitutional Studies Can Find Its Dilemma That When It Is Asked, Whether Or Not The Constitution As A Whole Is Politically Efficacious Or Normatively Correct, It Is Impossible To Get An Answer. In This Sense, Constitutional Studies Refer In China Not To The Value-Judgment, But To Analyzing And Exploring The Deep Structure Of The Constitutional Text. As Fundamental Law The Constitution Consists Of Three Basic Political Principles And The Basic Rights With Political Efficacy, While As Higher Law It Aims To Bring About The Well-Ordered Society In A Democratic Legal State.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122065290","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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